IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1359
Filed: 4 August 2015
Johnston County, No. 13 CRS 053875
STATE OF NORTH CAROLINA
v.
CHARLES DIONE WARREN, Defendant.
Appeal by Defendant from judgment entered 3 July 2014 and order entered 3
September 2014 by Judge Richard T. Brown in Johnston County Superior Court.
Heard in the Court of Appeals 7 May 2015.
Attorney General Roy A. Cooper III, by Special Deputy Attorney General James
A. Wellons, for the State.
Bryan Gates for Defendant-appellant.
DILLON, Judge.
Charles Dione Warren (“Defendant”) appeals from the trial court’s order
denying in part his motion to suppress and from a conviction for felony possession of
cocaine and attaining the status of habitual felon. For the following reasons, we
affirm the trial court’s order.
I. Background
Defendant was indicted for various drug offenses in connection with the
discovery of illegal drugs and drug paraphernalia in his car during a traffic stop and
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Opinion of the Court
for attaining the status of habitual felon. Defendant filed motions to suppress certain
evidence collected during warrantless searches by the police.
Prior to trial on the matter, the trial court conducted an evidentiary hearing
on Defendant’s motions. After the hearing, the trial court entered an order granting
Defendant’s motion to suppress information retrieved from cell phones seized from
Defendant’s car but denied his motion as to anything else seized by police.
The case was tried before a jury, and Defendant was found guilty of felonious
possession of cocaine and possession of drug paraphernalia. Defendant pleaded guilty
to attaining the status of habitual felon. The trial court arrested judgment on the
possession of drug paraphernalia conviction and sentenced Defendant as an habitual
felon to 38 to 58 months of imprisonment for the felony possession of cocaine
conviction. Defendant gave notice of appeal in open court.
II. Analysis
On appeal, Defendant challenges the trial court’s partial denial of his motion
to suppress certain evidence found during a routine traffic stop. Defendant does not
contest the validity of the stop itself. Rather, Defendant contends that the court erred
in concluding that the officer had reasonable suspicion to extend the scope and length
of time of a routine traffic stop to allow a police dog to perform a drug sniff outside
his vehicle, which led to the discovery of contraband in Defendant’s vehicle.
Specifically, Defendant challenges the trial court’s conclusion “[t]hat [the officer] had
reasonable articulable suspicion to extend the scope of the initial stop and subject the
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Defendant’s vehicle to the canine search and that the Defendant was not
unreasonably detained nor the scope of the initial stop unreasonably extended for the
purpose of that canine sniff search.”
This Court’s review of an appeal from the denial of a defendant’s motion to
suppress is limited to determining “whether competent evidence supports the trial
court’s findings of fact and whether the findings of fact support the conclusions of
law.” State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011). Unchallenged
findings of fact “are deemed to be supported by competent evidence and are binding
on appeal. Conclusions of law are reviewed de novo and are subject to full review.
Under a de novo review, the court considers the matter anew and freely substitutes
its own judgment for that of the lower tribunal.” Id. at 168, 712 S.E.2d at 878 (marks
omitted).
We believe that based on the trial court’s unchallenged findings, the officer had
reasonable suspicion to extend the routine traffic stop to perform a dog stiff; and,
accordingly, we hold that the trial court did not err in partially denying Defendant’s
motion to suppress.
The Fourth Amendment to the United States Constitution protects the “right
of the people to be secure in their persons . . . and effects, against unreasonable
searches and seizures[.]” U.S. Const. amend. IV. “A traffic stop is a seizure even
though the purpose of the stop is limited and the resulting detention quite brief.”
State v. Barnard, 362 N.C. 244, 246, 658 S.E.2d 643, 645 (2008). “[A]n officer may
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Opinion of the Court
stop a vehicle on the basis of a reasonable, articulable suspicion that criminal activity
is afoot.” State v. Styles, 362 N.C. 412, 427, 665 S.E.2d 438, 447 (2008).
As the United States Supreme Court recently explained, during the course of
a stop for a traffic violation, an officer may – in addition to writing out a traffic citation
- perform checks which “serve the same objective as enforcement of the traffic code[.]”
Rodriguez v. United States, ___ U.S. ___, ___, 191 L.Ed. 2d 492, 499 (2015). These
checks typically include “checking the driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the automobile’s registration
and proof of insurance.” Id. The Court further held that under the Fourth
Amendment an officer “may conduct certain unrelated checks during an otherwise
lawful traffic stop, [but] . . . he may not do so in a way that prolongs the stop, absent
the reasonable suspicion ordinarily demanded” to justify detaining an individual. Id.
The Court specifically held that the performance of a dog sniff is not a type of check
which is related to an officer’s traffic mission. Id. Therefore, under Rodriguez, an
officer who lawfully stops a vehicle for a traffic violation but who otherwise does not
have reasonable suspicion that any crime is afoot beyond a traffic violation may
execute a dog sniff only if the check does not prolong the traffic stop.
We note that prior to Rodriguez, many jurisdictions – including North Carolina
– applied a de minimis rule, which allowed police officers to prolong a traffic stop “for
a very short period of time” to investigate for other criminal activity unrelated to the
traffic stop – for example, to execute a dog sniff – though the officer has no reasonable
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Opinion of the Court
suspicion of other criminal activity. State v. Sellars, 222 N.C. App. 245, 249-50, 730
S.E.2d 208, 211 (2012). See also State v. Brimmer, 187 N.C. App. 451, 455, 653 S.E.2d
196, 198 (2007). However, the holdings in these cases to the extent that they apply
the de minimis rule have been overruled by Rodriguez.
In the present case, it is unclear from the trial court’s findings whether the
execution of the dog sniff prolonged the traffic stop. Specifically, the trial court found
that the officer stopped Defendant for a traffic offense; that the officer called for
backup during the stop; that the backup arrived; that the officer performed the dog
sniff while his backup completed writing out Defendant’s traffic citation; and that the
entire stop lasted less than ten minutes. What is unclear is whether the officer’s call
for backup or waiting for backup to arrive prolonged the stop beyond that which was
necessary to complete the traffic stop.
Notwithstanding, unlike in Rodriguez, the trial court’s findings support the
conclusion that the officer had developed reasonable suspicion of illegal drug activity
during the course of his investigation of the traffic offense and was therefore justified
to prolong the traffic stop to execute the dog sniff. We note that the State does not
need to show that the officer had “probable cause” of illegal drug activity but that he
merely had “reasonable suspicion” to extend the stop. See Rodriguez v. United States,
___ U.S. at ___, 191 L.Ed. 2d at 499. And as our Supreme Court has pointed out
“[r]easonable suspicion is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence. Only some
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Opinion of the Court
minimal level of objective justification is required.” Barnard, 362 N.C. at 247, 658
S.E.2d at 645 (marks omitted). In determining whether an officer had a reasonable
suspicion of criminal activity, the court must examine both the facts known to the
officer at the time he decided to approach the defendant and the rational inferences
that may be drawn from those facts. State v. Thompson, 296 N.C. 703, 706, 252
S.E.2d 776, 779 (1979). Also, “the reviewing court must take into account an officer’s
training and experience.” State v. Willis, 125 N.C. App. 537, 541, 481 S.E.2d 407, 410
(1997). In making this determination, “the court must view the totality of the
circumstances through the eyes of a reasonable and cautious police officer at the
scene.” State v. Battle, 109 N.C. App. 367, 370, 427 S.E.2d 156, 158 (1993).
In the context of a traffic stop, a Defendant’s proximity to a high crime area
alone does not constitute reasonable suspicion; however, a defendant’s presence in
such area coupled with some sort of evasive behavior may constitute reasonable
suspicion. See, e.g., State v. Jackson, ___ N.C. ___, ___ S.E.2d ___ 2015 N.C. LEXIS
446 (N.C., June 11, 2015) (holding that officer had reasonable suspicion where the
defendant was in a high crime area and took evasive action in the presence of the
officer); State v. Willis, 125 N.C. App. 537, 542, 481 S.E.2d 407, 411 (1997) (stating
that “when an individual’s presence at a suspected drug area is coupled with evasive
action, police may form, from those actions, the quantum of reasonable suspicion
necessary to conduct an investigatory stop”).
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Opinion of the Court
In the context of the present case, we note that this Court has held that an
officer had reasonable suspicion to detain an individual based on facts similar to those
here. Specifically, in In re I.R.T., officers approached a group of individuals, including
a juvenile, in an area known for drug activity. 184 N.C. App. 579, 581, 647 S.E.2d
129, 132 (2007). When one officer approached the juvenile, he looked at the officer
and quickly turned his head; it appeared to the officer that the juvenile had something
in his mouth. Id. The officer explained “that he had previously encountered
individuals acting evasive and hiding crack-cocaine in their mouths, and those
experiences made him suspect [the juvenile] might be hiding drugs in his mouth.” Id.
The officer detained the juvenile which eventually led to the discovery of a crack-
cocaine rock that was in the juvenile’s mouth. Id. On appeal from his adjudication
and the denial of his motion to suppress, this Court held that “the juvenile’s conduct,
his presence in a high crime area, and the police officer’s knowledge, experience, and
training [was] sufficient to establish” that the officer had a reasonable suspicion to
justify an investigatory seizure of the juvenile. Id. at 581-82, 585, 647 S.E.2d at 132-
33, 135.
Likewise, here, in support of its conclusion that reasonable suspicion to extend
the scope of the stop, the trial court found that Defendant was observed and stopped
“in an area [the officer] knew to be a high crime/high drug activity area[;]” that while
writing the warning citation, the officer observed that Defendant “appeared to have
something in his mouth which he was not chewing and which affected his speech[;]”
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that “during his six years of experience [the officer] who has specific training in
narcotics detection, has made numerous ‘drug stops’ and has observed individuals
attempt to hide drugs in their mouths and . . . swallow drugs to destroy evidence[;]”
and that during their conversation Defendant denied being involved in drug activity
“any longer.” We hold that based on the totality of the facts the trial court’s
unchallenged findings establish the “minimal level of objective justification” to show
that the officer had reasonable suspicion to believe that criminal activity was
occurring to justify the extension of the traffic stop.1
Accordingly, we hold that the trial court did not err in concluding the same and
in denying Defendant’s motion to suppress.
AFFIRMED.
Judge GEER concurs.
Judge ELMORE dissents in a separate opinion.
1 The dissenting Judge argues that the officer’s reasonable suspicion to justify prolonging the
traffic stop cannot be based in this case on the officer’s observance of an object in Defendant’s mouth.
Specifically, the dissenting Judge points out that the present case differs from I.R.T. in that in the
present case the officer never asked Defendant about the object in his mouth nor asked Defendant for
consent to search his mouth. We recognize that the lack of any evidence that the officer specifically
inquired about the object makes the question of whether the officer had reasonable suspicion closer.
However, notwithstanding a lack of evidence that the officer inquired about the object in Defendant’s
mouth, we believe that Defendant’s act of speaking with the officer for a period of time without
removing or chewing on an object which was affecting his speech – when coupled with the other factors
cited above – is sufficient to establish reasonable suspicion.
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ELMORE, R., dissent
No. COA14-1359–State v. Warren
ELMORE, Judge, dissenting.
I respectfully disagree with the majority’s conclusions that the trial court did
not err in denying defendant’s motion to suppress. As a result, I would reverse the
trial court’s order denying defendant’s motion to suppress, vacate the judgment, and
remand to the trial court.
The majority concludes that the facts in defendant’s case support the trial
court’s finding that the officer had a reasonable articulable suspicion to extend the
scope of the initial stop to allow a canine search of defendant’s vehicle. I disagree.
The majority recognizes that when an individual’s presence in a suspected high crime
area is coupled with evasive action, law enforcement may form reasonable suspicion
from the evasive actions. Willis, supra. As such, the majority concludes that the
facts in In re I.R.T., are analogous to those facts in the case at hand. In re I.R.T, 184
N.C. App. 579, 581-83, 647 S.E.2d 129, 132-33 (2007). I disagree.
In I.R.T., the officer testified that when he approached the juvenile in a high
crime area, he witnessed the juvenile “quickly turned his head away” from him. Id.
at 585, 647 S.E.2d at 135. Further, the officer testified that the juvenile “kept his
head turned away from [him] and . . . [the officer] could tell that he was not moving
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ELMORE, R., dissent
his mouth [while responding to the officer’s questions] as though he had something
inside of his mouth.” Id. at 585-86, 647 S.E.2d at 135. The officer alleged that
“individuals that have exhibited those characteristics have generally kept crack-
cocaine in their mouths.” Id. at 586, 647 S.E.2d at 135. Importantly, suspecting the
juvenile of hiding drugs in his mouth, the officer requested that the juvenile spit out
what was in his mouth. Id. at 581, 647 S.E.2d 132. The juvenile spit out crack cocaine
wrapped in cellophane. Id. This Court discerned that the juvenile’s “turning away
from the officer and not opening his mouth while speaking constituted evasive
actions”, and we accordingly held that the juvenile’s evasive conduct, presence in a
high crime area, and the officer’s training was sufficient to establish reasonable
suspicion. Id. at 586, 647 S.E.2d at 135.
The I.R.T. Court relied, in part, on State v. Watson, 119 N.C. App. 395, 458
S.E.2d 519 (1995). In Watson, this Court found reasonable suspicion to justify an
investigatory seizure when police approached a convenience store located in a high
crime area and witnessed the defendant make “evasive maneuvers to avoid detection,
i.e., putting the drugs in his mouth, attempting to swallow the drugs by drinking
Coca-Cola and attempting to go into the store.” Id. at 398, 458 S.E.2d at 522. The
defendant “was ordered to spit out the objects in his mouth[.]” Id. at 396-97, 458
S.E.2d at 521. When the defendant refused, the officer applied pressure to the
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defendant’s throat and he spit out three baggies of crack cocaine. Id at 397, 458
S.E.2d at 519.
I agree with this Court’s holdings in both I.R.T. and Watson. Not only were
the defendants present in high crime areas, each acted evasively when confronted by
law enforcement. However, the facts in I.R.T. and Watson are markedly different
from the facts in the case before us.
Here, there is no question that the officer stopped defendant in a high crime
area for a traffic violation. Upon finding defendant’s license and registration to be
valid and that the car was registered to defendant, the officer issued defendant a
warning ticket. The officer began writing the warning ticket while standing at
defendant’s driver side door. The officer talked to defendant when he wrote the ticket.
In speaking with defendant, the officer alleged that he thought defendant had
something in his mouth. The following colloquy occurred at trial:
DEFENSE COUNSEL: You said [defendant] had
something in his mouth and he wasn’t chewing on it?
OFFICER: Correct.
DEFENSE COUNSEL: Was it peppermint?
OFFICER: I don’t know.
DEFENSE COUNSEL: Well, was there some other type of
hard candy?
OFFICER: I don’t know.
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DEFENSE COUSEL: Did you see any type of plastic or
anything coming out the corner of [defendant’s] mouth that
would indicate that it was some type of packaging[?]
OFFICER: No. . . . Just something in his mouth. I couldn’t
tell.
DEFENSE COUNSEL: Okay. And that caused you
concern?
OFFICER: I notated.
Defense counsel asked the officer, “[w]hile you’re writing the warning ticket,
you are engaged in conversation with [defendant]?” The officer replied, “[y]es, sir.”
Defense Counsel asked, “[h]e engages in conversation back with you?” The officer
replied, “[h]e does.” The record shows that during their conversation, the officer
informed defendant that he was stopped in a high crime area and pointed out to
defendant that the Berkshire Apartments were known for their drug activity. The
officer asked defendant if he was on probation, and defendant answered that he was
not. The officer asked if defendant had any prior drug offenses, and defendant said
“he wasn’t involved in that type of stuff anymore.” Defendant informed the officer
that he was self-employed in landscaping. Defense counsel asked the officer whether
the object remained in defendant’s mouth during the conversation, and the officer
answered in the affirmative. Defense counsel questioned, “[y]ou don’t ask him about
[the object]?” The officer replied, “[t]hat’s correct.”
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ELMORE, R., dissent
The officer admitted that the traffic stop turned into a drug investigation solely
because defendant was in a known drug area and because defendant had an
unidentified object in his mouth. Defense counsel questioned, “the only thing that
concerned you was some object that was in [defendant’s] mouth that you were unable
to identify?” The officer replied, “[a]lso, the area that he was coming from of course.”
While the officer was writing the warning citation, he asked defendant if there was
anything illegal in his vehicle. The officer asked defendant if he could check his
vehicle for narcotics, and defendant said no. The officer then asked defendant to step
out of his vehicle so he could search defendant’s person for “guns, drugs, or other
weapons.” The officer testified that defendant consented to the search—he “didn’t . .
. resist the search at all.” Further, the search yielded nothing illegal or suspicious.
Notably, defense counsel asked, “[y]ou have consent to search his entire person,
do you believe that?” The officer replied, “[y]es, I do.” Defense counsel questioned,
“[b]ut you do not search his mouth?” The officer admitted, “[t]hat’s correct.” After
finding no evidence of contraband on defendant’s person, and not searching
defendant’s mouth, the officer continued to detain defendant as he called for backup.
When a second officer arrived, he was instructed to finish writing the warning
citation while the first officer conducted the canine sniff of defendant’s vehicle. It was
not until after the canine sniff test was completed that the officer searched
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ELMORE, R., dissent
defendant’s mouth. The officer alleged that defendant appeared to swallow
something.
These facts, taken in totality and viewed through the eyes of a reasonable,
cautious officer, do not support the trial court’s finding that the officer had reasonable
suspicion to justify extending the traffic stop. Unlike in I.R.T. and Watson, where the
defendants took evasive actions to avoid law enforcement, the record here shows that
defendant did not act evasively. Specifically, defendant engaged in a conversation
with the officer during which he was able to speak clearly enough to inform the officer
that he was not on probation and worked in landscaping. Additionally, defendant
“didn’t . . . resist the search [of his person] at all.” Further, defendant allowed the
officer to check his license and registration, which were in good standing. In doing
so, the officer returned to his patrol vehicle, and defendant would have had an
opportunity to spit out what was allegedly in his mouth. Finally, the officer testified
that defendant was “polite” and there were no “issues” with the traffic stop.
Of upmost importance in this case, the officer did not search defendant’s mouth
during the search of his person. Moreover, the officer admittedly never questioned
defendant about the alleged unknown item in his mouth until after the canine sniff.
Nonetheless, the majority points to the officer’s six years of experience in narcotics
detection as well as his belief that defendant was concealing something in his mouth
to support a finding of reasonable suspicion. Arguably, an experienced officer would
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take steps to determine what, if anything, was in a person’s mouth at the outset of a
stop when such a suspicion was the basis for the search of that person.
Because the officer neither questioned defendant about having an item in his
mouth nor did he search defendant’s mouth, I find it highly objectionable that the
purported evasive conduct that essentially tipped the scale in favor of finding
reasonable suspicion was the officer’s mere alleged suspicion that defendant had an
unknown object in his mouth. Had the officer taken any steps to confirm his
suspicion, a canine search of defendant’s vehicle would debatably have been
permissible based upon reasonable suspicion. Egregiously, the officer neglected to
investigate his suspicion, yet still felt justified in prolonging the stop to conduct a
canine sniff of the outside of defendant’s vehicle. Notably, the officers in I.R.T. and
Watson both demanded that the defendants spit out what was hidden in their mouths
as part of the investigatory stop.
To me, these facts suggest that the officer was acting on no more than an
“unparticularized suspicion or hunch” that defendant’s vehicle contained contraband
based on defendant’s presence in a high crime area. State v. Brown, 217 N.C. App.
566, 572, 720 S.E.2d 446, 450 (2011) writ denied, review denied, 365 N.C. 541, 742
S.E.2d 187 (2012) (citation and quotation omitted). It is well established that a
suspicion or hunch is insufficient to form the basis of reasonable suspicion. Id.
Because the facts of this case do not support a finding that the officer had reasonable
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suspicion to believe that criminal activity was afoot to justify the extension of the
traffic stop, I respectfully disagree with the majority’s opinion.
Because the officer lacked reasonable suspicion, under Rodriguez, the question
for this Court becomes whether the officer unlawfully prolonged an otherwise
completed traffic stop in order to conduct a canine sniff outside of defendant’s vehicle.
Again, an officer may conduct certain unrelated checks during an otherwise lawful
traffic stop, so long as he does so in a way that does not prolong the stop. Rodriguez
v. United States, ___ U.S. ___, ___, 191 L.Ed. 2d 492, 499 (2015). The unrelated checks
include: checking the driver’s license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile’s registration and proof
of insurance. Id. “These checks serve the same objective as enforcement of the traffic
code: ensuring that vehicles on the road are operated safely and responsibly.” Id.
However, “[l]acking the same close connection to roadway safety as the ordinary
inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”
Id.
In Rodriguez, the Supreme Court framed the “critical” question as “not
whether the dog sniff occurs before or after the officer issues a ticket, but whether
conducting the sniff adds time to the stop” Id. at ___, 191 L.Ed. 2d at 496. As the
Supreme Court opined, “[i]f an officer can complete traffic-based inquiries
expeditiously, then that is the amount of time reasonably required to complete [the
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stop’s] mission.” Id. at ___, 191 L.Ed. 2d at 499 (citation and quotation omitted)
(alteration in original). A traffic stop prolonged beyond that point is unlawful. Id.
The majority contends that “it is unclear from the trial court’s findings whether
the execution of the dog sniff prolonged the traffic stop.” I disagree. In the instant
case, the officer’s actions inevitably prolonged the traffic stop beyond the amount of
time reasonably required to complete the stop’s mission. After checking defendant’s
license and registration and confirming that the vehicle was registered to defendant,
the officer stood by defendant’s door and began issuing him a warning ticket. The
officer could have reasonably completed writing the citation in a matter of one to two
minutes. However, the officer struck up a conversation with defendant, which led to
the officer having defendant exit the vehicle, searching defendant’s pockets, calling a
backup officer, explaining the situation to the new officer, requesting that the new
officer complete the warning ticket, and finally getting the canine from the patrol
vehicle and conducting the sniff test. While this string of events may have only
extended the stop for minutes, the stop was nonetheless extended beyond the amount
of time required to reasonably complete the stop’s mission. I am of the impression
that the time it took for the officer to complete the traffic-based inquiries of checking
defendant’s license and registration constituted the reasonable amount of time for
the stop—any holdover thereafter was unreasonable because the officer lacked
reasonable suspicion. I recognize that past precedent has held that any delay in this
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case was de minimis. However, in light of the Supreme Court’s holding in Rodriguez,
we are no longer bound to follow the de minimis rule.
Because the officer had (1) finished completing the traffic-based inquiries of
checking defendant’s license and registration, (2) was in in the middle of issuing the
warning ticket, and (3) the additional time defendant was detained was used to
conduct a check that was unrelated to the officer’s otherwise lawful traffic stop, I am
of the opinion that the officer unreasonably extend the duration of the stop in order
to conduct a canine sniff of the outside of defendant’s vehicle. Further, by prolonging
the traffic stop, defendant’s Fourth Amendment rights were violated. Therefore, I
conclude that the trial court erred in denying defendant’s motion to suppress
evidence.
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