State v. Williams

McGEE, Judge,

dissenting.

I respectfully dissent from the majority holding because I do not believe the trial court’s findings of fact support a conclusion that *12Sergeant Cass had a reasonable suspicion sufficient to detain Defendant after the issuance of a warning citation for tinted windows.

At the suppression hearing, the trial court made the following relevant findings of fact:

2. That about 10:55 AM [Sgt. Cass] observed a white SUV with what appeared to be illegally tinted windows, at which time he initiated a traffic stop.
3. Sgt. Cass approached the vehicle and spoke with the occupants briefly, then asked the driver, later identified as [Ms.] Perez, to step out of the vehicle.
4. The officer had [Ms.] Perez step to the front of his vehicle and asked where they were coming from. [Ms.] Perez eventually stated they were coming from Houston, Texas, even though they were traveling south on the interstate.
5. That during this conversation [Ms.] Perez could not articulate their destination, even in general terms, even though she was driving the vehicle. [Ms.] Perez further stated that she and [Defendant] were cousins.
6. Sgt. Cass then spoke with the passenger, later identified as [Defendant], who was still seated in the vehicle.
7. During this conversation [Defendant] stated they were coming from Kentucky and headed to Club Kryptonite in Myrtle Beach.
8. When asked[,] [Defendant] said that [Ms.] Perez was her cousin and claimed a familial relationship initially, but then later stated they simply called each other cousins based on their close and long term relationship.
9. [Defendant] produced driver’s licenses from the states of Arizona and Texas and had indicated the car was owned by a friend of hers, that she intended to purchase it. The officer then at 11:04 AM told [Ms.] Perez that she was going to get a warning ticket, at which time she was seated in the vehicle.

I.

I disagree with the majority concerning the relevance of the trial court’s errors in its findings of fact.

*13A.

First, the trial court, by determining in Finding of Fact 4 that Ms. Perez only “eventually” stated that she was coming from Houston, suggests it found that Ms. Perez was being evasive or non-responsive when she was asked where she was coming from. An attempt to evade answering questions can be factored in a reasonable suspicion analysis. State v. McClendon, 350 N.C. 630, 637, 517 S.E.2d 128, 133 (1999).

Sergeant Cass testified at the hearing as follows:

And [I] asked [Ms. Perez] where she was coming from and she said that she had just flew out of Houston and not sure where she was coming from. So I started asking her, I said, no, I mean like right now, where are you coming from now? And she was making comments like from Houston. I’m like, right now you’re coming from Houston? And she said yeah. I was like, Houston what? Houston, Texas. I’m like, you’re going south on 77, you know, Houston is on further south and you’re indicating that’s where you’re coming from.
I had asked Ms. Perez where they were going and she said she wasn’t sure, that she was going to DJ somewhere, speaking of [Defendant], and she had it marked down on the map. So that’s when I walked back up talking with [Defendant]. And [Defendant] indicated they was [sic] going to Club Kryptonite, I believe is the way that you say it, and showed me a map to Myrtle Beach and then started asking me about directions on how to get there.
Q. Did you have a conversation at some point with [Defendant] about where they were coming from?
A. [Sergeant Cass] Yes, I did earlier when she was showing me the map.
Q. And what, if anything, did she indicate to you about where they were coming from?
A. There [sic] were coming from I believe it was Louisville, Kentucky. Yes, coming from Kentucky.
*14Q. And what had Ms. Perez told you about where they were coming from?
A. She didn’t know.
THE COURT: Well, I thought you said Houston, Texas.
[Sergeant Cass]: That’s what she originally said, that she had flown into Houston. And when I started saying Houston is here, you know, you’re coming south, she couldn’t tell me where she was coming from.

Sergeant Cass was asked at the hearing:

[Ijsn’t it correct that Ms. Perez told you right to begin with that she had come from Houston, and later on when you were talking to her in the side of the road and you asked her where she had come from and she said she had flown in from Houston?

Sergeant Cass answered: “That is correct.”

Sergeant Cass’s undisputed testimony was that Ms. Perez initially told him she had flown into Houston, and that was where she was coming from. Upon further questioning by Sergeant Cass, Ms. Perez told him that she did not know where she and Defendant were driving from, or where they were headed, because Ms. Perez was unfamiliar with the geography of the area since she had only ever traveled to Tucson, Houston, and California. Ms. Perez said that Defendant had picked her up at the airport in Houston and that she (Ms. Perez) was driving Defendant to a club where Defendant was going to DJ a show. Ms. Perez told Sergeant Cass that she simply drove where Defendant told her to go, and that Defendant had the trip mapped out. When Sergeant Cass asked Defendant the same questions, Defendant told Sergeant Cass they were coming from Louisville, Kentucky, and were on their way to Myrtle Beach, South Carolina. Defendant showed Sergeant Cass a map and asked for help in determining the best route to Myrtle Beach.

To the extent the trial court’s finding of fact indicated Ms. Perez “eventually” told Sergeant Cass that she and Defendant were coming from Houston, it is not supported by the evidence presented at the hearing. There is no competent evidence in the record to support the trial court’s finding that, when Sergeant Cass asked Ms. Perez where she was coming from, Ms. Perez “eventually stated they were coming from Houston, Texas.” (Emphasis added).

*15The majority states that this error is not prejudicial, as “the finding of fact would still support the belief that Perez had identified, whether eventually or immediately, a point of origin that not only rendered her and Defendant’s route illogical but also contradicted the information provided by her passenger.” There is no dispute that if Defendant and Ms. Perez were heading directly from Houston to Myrtle Beach, their route on Interstate 77 South would be “illogical.” I have no quarrel with Sergeant Cass’s testimony that he was initially suspicious of Ms. Perez’s claim that she and Defendant were coming directly from Houston. As Sergeant Cass’s own statements on the video show, however, this initial suspicion whs alleviated.

Sgt. Cass: That was what was throwing me off awhile ago. I was like that ain’t makin’ sense. You don’t even know where you are at here. (Emphasis added).
Ms. Perez: Yeah, and then [Defendant is] like just drive me and I don’t know. I haven’t been out of... I only went to Houston ... I only went to California . . . [f]rom Tucson, I’ve only been to California and to Houston.
Sgt. Cass: Right.
Ms. Perez: And that’s my only places I’ve been, anywhere. Everything’s new to me right here.

Ms. Perez told Sergeant Cass right away that she did not know the details about the trip because it was Defendant’s “gig” and this was only the second trip Ms. Perez had ever taken outside Arizona — and the first to the Southeast. Ms. Perez told Sergeant Cass that Defendant had a map with their destination circled, and that Defendant was the one who knew the details about the trip. Ms. Perez just drove where Defendant instructed her to drive. Defendant’s statements to Sergeant Cass did not contradict Ms. Perez’s. In fact, they corroborated what Ms. Perez was stating: Defendant was headed to a “gig,” Defendant did have a map with their destination, and Defendant was able to tell Sergeant Cass the details of their trip. I do not believe the majority’s statement that Ms. Perez “had initially told the officer that she was coming from Houston right now” is supported by the record. Ms. Perez never stated that she was coming from Houston “right now,” only that she came from Houston. As was later clarified, so far as driving Defendant was concerned, her trip originated in Houston. Though Sergeant Cass’s initial confusion was understandable, subsequent events and his own testimony indicate that this confusion was cleared up before he issued the warning citation.

*16B.

The majority considers the error in the trial court’s ninth Finding of Fact to be de minimis-. “[Defendant] produced driver’s licenses from the states of Arizona and Texas[.]” In fact, as Ms. Perez had indicated, Defendant did not have a driver’s license. When asked for identification by Sergeant Cass, Defendant produced two identification cards, not driver’s licenses. One was from Arizona, where both Ms. Perez and Defendant indicated Defendant had lived for most of her life, and the other was from Texas, where both Ms. Perez and Defendant indicated Defendant had moved and was currently living. No competent evidence exists supporting the trial court’s finding of fact that Defendant produced driver’s licenses from two different states. Having driver’s licenses from multiple states is a violation of N.C. Gen. Stat. § 20-4.25 (2009).

C.

The majority holds that the trial court’s fifth Finding of Fact was supported by competent evidence. The fifth finding states:

That during [the conversation between Sergeant Cass and Ms. Perez,] [Ms.] Perez could not articulate [Ms. Perez’s and Defendant’s] destination, even in general terms, even though she was driving the [SUV],

As discussed above, Ms. Perez did not know the name of the last city she and Defendant had been in, nor their destination. Ms. Perez, after being asked by Sergeant Cass if the SUV was hers, answered: “No, it’s [Defendant’s]. I’m driving for her because she doesn’t have a license and she’s gonna go D.J. somewhere.” Sergeant Cass then asked where they were coming from, and Ms. Perez responded: “From Houston. I flied [sic] out because she wanted me to drive for her. So that’s why I flew out because we’re driving, umm, I’m not even sure where we’re driving to. Ask her because she knows everything because it’s her gig.”

Though Ms. Perez had already volunteered that she did not know their destination, Sergeant Cass again asked her where she and Defendant were heading. Ms. Perez again indicated that she was uncertain, but that Defendant had a map with their destination circled. Sergeant Cass then questioned Defendant, who was still seated in the SUV, about their trip, and Defendant stated that they were coming from Louisville, Kentucky, and heading to Club Kryptonite in Myrtle Beach, South Carolina. Defendant showed Sergeant Cass a map, and asked him for directions.

*17The competent evidence shows that, though Ms. Perez did not know the name of their destination city, she told Sergeant Cass that they were heading to a club where Defendant had a “gig,” and that Defendant could provide more detailed information about their destination. The information provided by Ms. Perez was corroborated by Defendant when Sergeant Cass questioned Defendant. I would hold that the competent evidence does not support the trial court’s finding of fact that Ms. Perez “could not articulate their destination, even in general terms[.]” (Emphasis added).

II.

I would note that subsequent to its denial of Defendant’s motion to suppress, the trial court stated that “it was a close case.” The pertinent findings that support the trial court’s conclusion that Sergeant Cass had a reasonable articulable suspicion to detain Defendant after the issuance of the warning citation are: (1) Sergeant Cass stopped the SUV, in which Defendant was a passenger, because the SUV “appeared to [have] illegally tinted windows.” (2) Ms. Perez, who was driving, did not know the name of the destination city for that day’s drive. (3) Defendant initially stated that Ms. Perez was her cousin, but later stated she and Ms. Perez “simply called each other cousins based on their close and long term relationship.” (4) Defendant stated the SUV was owned by a friend of hers, but she intended to purchase it.

I do not include the trial court’s finding that suggests Ms. Perez only eventually told Sergeant Cass that she was coming from Houston. I also do not include, as a supporting finding of fact, that Defendant had two driver’s licenses — one from Arizona and one from Texas. Most importantly, Sergeant Cass never testified that the fact Defendant had two identification cards from two different states contributed to his belief that criminal activity may have been afoot. Further, because the two identification cards were entirely consistent with information provided by both Defendant and Ms. Perez concerning Defendant’s prior and current residency, I do not find them particularly relevant. Had Sergeant Cass testified to their relevance in making his determination, and had Defendant produced two driver’s licenses from different states, as the trial court erroneously found, this evidence might have been entitled to more weight.

The majority includes added “findings” in its opinion that were not made by the trial court. The trial court did not find that Ms. Perez “did not know the name of the city from which the pair travelled!;]” the trial court only found that Ms. Perez told Sergeant Cass that they *18came from Houston, which was corroborated by Defendant. The majority seems to find some relevance in the fact that tinted windows may pose a threat to officers, as tinted windows make it more difficult for officers to observe what is happening inside a vehicle when they approach. While true, this fact has no relevance in the case before us, and the trial court made no finding of fact related to this danger. There is no evidence or testimony that Sergeant Cass ever felt threatened. The trial court made no finding of fact involving Ms. Perez’s statement that the SUV belonged to Defendant. Sergeant Cass gave no testimony that he found this suspicious. No inference can be made from the findings of fact that the trial court considered it suspicious that Ms. Perez, who had a “close and long term relationship”1 with Defendant, stated that Defendant “owned” the SUV whereas Defendant stated that she was in the process of purchasing the SUV from a friend. The trial court made no finding of fact that the route of Defendant and Ms. Perez south on Interstate 77 was a “suspicious” route to take from Kentucky to Myrtle Beach. Sergeant Cass never questioned Ms. Perez or Defendant concerning this route, and never testified that he found it even the least bit suspicious. Sergeant Cass never raised the issue of this route at the suppression hearing, and our Court does not make factual determinations. The majority further discusses the purported “nervousness” of Ms. Perez in support of its determination. Notably, the trial court made no finding of fact related to Sergeant Cass’s testimony that, when Ms. Perez got into his cruiser, “she then became very nervous and said that she was nervous because of seeing cars getting hit on the TV[,]” and that she appeared “fidgety.” I assume the trial court considered this testimony and rejected it as having no relevance to its determinations. Further, Sergeant Cass did not testify that Ms. Perez’s “nervousness” was a basis for his suspicion. Sergeant Cass did not charge Ms. Perez with any crime whatsoever — he only issued Ms. Perez a warning citation for the tinted windows infraction.

The State argues that the case before us is factually analogous to State v. McClendon, 350 N.C. 630, 517 S.E.2d 128 (1999), stating that both cases “involved nervousness, vague and unreasonable travel information, inconsistent stories and ownership of the vehicle by an absent third party.” I first note that, though the State relies heavily on the assertion that Ms. Perez was acting nervous during the stop, the trial court made no finding of fact to support that assertion, and I find *19little evidence that would support such a finding. Therefore, it is improper to consider any “nervousness” on the part of Ms. Perez.

Nor did the trial court find as fact that Defendant and Ms. Perez gave inconsistent stories. The State argues that Defendant and Ms. Perez gave inconsistent stories regarding their relationship to each other, and the majority states that the trial court’s findings “demonstrate a totality of the circumstances characterized by uncertainties and inconsistencies])]” However, the trial court made no finding that Defendant’s “story” was inconsistent with Ms. Perez’s “story.” The trial court merely found that Defendant first stated she and Ms. Perez were cousins and later stated that they called each other cousins “based on their close and long term relationship.” Ms. Perez gave the exact same “story” to Sergeant Cass, though this is not mentioned in the trial court’s findings of fact. See State v. Myles, 188 N.C. App. 42, 50-51, 654 S.E.2d 752, 758 (2008).

Ms. Perez volunteered that she did not know the name of their destination city, but told Sergeant Cass that Defendant did, and had the destination circled on a map. When Sergeant Cass asked Defendant their destination, she answered readily, and showed him the map Ms. Perez had mentioned. Ms. Perez’s knowledge of the travel information can reasonably be termed vague, but it does not appear to be unreasonable, and the trial court made no such finding. Defendant’s knowledge of their travel information was not vague. Defendant told Sergeant Cass where they were driving from, that they were headed to Myrtle Beach, showed him a map, and even asked for the best route.

BLOC informed Sergeant Cass that the SUV was not stolen and there was nothing otherwise suspicious about the SUV; and Sergeant Cass testified he “knew that [Defendant] was... going to purchase the. vehicle from her friend.” There is nothing inherently suspicious about a person driving a friend’s vehicle, especially when that person has made arrangements to purchase the vehicle from the friend. I contrast these facts to those in McClendon, upon which the State relies:

Trooper Lisenby lawfully stopped defendant and asked for his driver’s license and registration. Defendant could not find the registration, and instead produced the title to the car. The title, however, was in the name of Jema Ramirez, instead of defendant’s name. Trooper Lisenby was entitled to inquire further regarding the ownership of the car to determine whether it was stolen. It was defendant’s responses to questions asked during such inquiry *20that aroused Lisenby’s, and later Sergeant Cardwell’s, suspicions that criminal activity was afoot.
Upon reviewing the evidence and the trial court’s findings, we find several factors that gave rise to reasonable suspicion under the totality of the circumstances. First, when asked who owned the car, defendant said his girlfriend, but would not give Trooper Lisenby her name. It was only after defendant had been asked several times that he said his girlfriend “Anna” owned the car. When Trooper Lisenby inquired “Anna?” defendant said “I think so.” However, “Anna” was not the name listed on the title as the owner of the car. Second, although defendant seemed unsure of who owned the car, the address of the owner listed on the title and the address on defendant’s driver’s license were the same, which would seem to indicate that they both lived in the same residence. Third, defendant was extremely nervous, sweating, breathing rapidly, sighing heavily, and chuckling nervously in response to questions. He also refused to make eye contact when answering questions. We conclude that these facts, when viewed in the totality of the circumstances, allowed the officers to form a reasonable suspicion that criminal activity was afoot.

McClendon, 350 N.C. at 637, 517 S.E.2d at 133. I do not find the facts in the present case to be analogous to those in McClendon-, and the facts in this case provide far less than those in McClendon in support of a finding of reasonable suspicion.

I find that the facts in the present case are more analogous to those in State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998); Myles, 188 N.C. App. 42, 654 S.E.2d 752; and Falana, 129 N.C. App. 813, 501 S.E.2d 358, where our appellate courts reversed the denial of the defendants’ motions to suppress, and remanded for the trial courts to vacate the judgments entered. The majority finds Falana and Myles distinguishable. Our Court in Falana relied on Pearson in reaching its holding. In Pearson, the following facts were relied upon to support the officer’s reasonable suspicion:

[The officer] observed that the defendant was nervous and had a rapid heart rate. . . . The defendant told Trooper Cardwell that he had had little sleep the previous night. He said that he and his fiancée had left the Charlotte area the day before and spent the night at his parents’ home near the Virginia state line.
Trooper Cardwell next spoke with the defendant’s fiancée in the defendant’s car while the defendant remained seated in the patrol *21car. She said that the couple had spent the previous night in New York visiting the defendant’s parents. On each trip to and from the defendant’s car, Trooper Cardwell looked into the car for drugs or weapons. He saw nothing suspicious.

Pearson, 348 N.C. at 274, 498 S.E.2d at 599.

We cannot hold that the circumstances considered as a whole warrant a reasonable belief that criminal activity was afoot or that the defendant was armed and dangerous. The defendant was stopped at 3:00 p.m. on an interstate highway. Both officers testified that he was polite and cooperative. He had a slight odor of alcohol but not enough to be charged with driving while impaired. This should not give rise to a reasonable suspicion of criminal activity.
The nervousness of the defendant is not significant. Many people become nervous when stopped by a state trooper. The variance in the statements of the defendant and his fiancée did not show that there was criminal activity afoot. The officers testified the defendant was frisked because it was standard procedure to do so when a vehicle is searched.
The officers had never before encountered the defendant. They were not aware of any criminal record or investigation for drugs pertaining to him. The defendant was polite and cooperative. The bundle in his pants was not obvious and was not noticed by either officer.

Id. at 276, 498 S.E.2d at 600-01. Unlike in the case before us, the defendant in Pearson and his fiancée clearly gave conflicting statements concerning where they had spent the previous night. The defendant in Pearson was found to have been nervous and to have had a rapid heart rate. Nervousness was not a factor in the trial court’s findings of fact in the present case. As in Pearson, Sergeant Cass had no outside information concerning Defendant or Ms. Perez to suggest they might be involved in criminal activity. Sergeant Cass, though making multiple trips between Ms. Perez and the SUV never noticed any suspicious items on Defendant, on Ms. Perez, or in the SUV.

In Myles our Court held that signs of extreme nervousness — the driver’s “heart was beating unusually fast[;]” and the driver “was sweating profusely and wiped his hands on his pants, despite the fact it was a cool day and [the officer] had the air conditioner running in his car” — and arguably inconsistent stories given by the defendant and his cousin, were not sufficient to give rise to a reasonable suspi*22cion. Myles, 188 N.C. App. at 43-44, 50-51, 654 S.E.2d at 753-54, 58. In rejecting the argument that contradictory statements existed, our Court stated:

However, Gilmore’s [the arresting officer’s] testimony revealed defendant and Croon’s [the defendant’s cousin’s] stories were not contradictory. Gilmore testified as follows:
Q: But did you make an issue of the fact that the [rental] car was late being turned in as being one of your concerns?
A: Yes, sir, I just asked [Croon]. I said the car was supposed to be back yesterday, and he said well, he called and extended it, which is nothing uncommon.
Q: And what did you discuss with [the defendant]?
A: ... I also asked him as far as the extension on the rental agreement. [Defendant] told me he had extended it until the following Wednesday. ... I believe that’s basically the gist of the conversation with him.
Q: And your basis for searching the car for the determination you made to search the car was exactly what?
A: . . . [Croon] was asked how long they would be staying in Fayetteville, he told me that — he initially told me about a week. When he told me that, he kind of looked down. . . . And throughout that conversation he told me that he was going to be looking for employment there and he may be staying if he did find it. When I questioned [the defendant] about the rental agreement as far as the length of the stay and when the rental agreement or the rental car was supposed to be turned back in, when he told me — first he told me it was supposed to be back on Wednesday, but then he told me he was supposed to stay for a week.
Thus, both [the] defendant and Croon told Gilmore the rental agreement had been extended until the following Wednesday. Croon told Gilmore initially they were staying in Fayetteville a week but then later said he may stay longer if he found employment. [The defendant] corroborated Croon’s story by saying they were “supposed to stay [in Fayetteville] for a week.”

*23Id. at 50-51, 654 S.E.2d at 758. I find the “inconsistencies” argued by the majority to be analogous to the “inconsistencies” argued and discounted in Myles. Defendant and Ms. Perez stated they were cousins, then clarified that they just called each other cousins. Ms. Perez stated that they were coming from Houston, and that she did not know their destination, but Defendant did. Defendant corroborated this information through her own statements and actions. In the present case, there was no finding of nervousness, much less a finding of extreme nervousness, and only superficially contradictory statements that were later clarified by subsequent events.

The first finding in support of the trial court’s conclusion was the reason for the stop itself — Sergeant Cass “observed a white SUV with what appeared to be illegally tinted windows.” When considered in context, Ms. Perez’s uncertainty concerning their destination, Defendant’s statement that she and Ms. Perez were cousins, immediately followed by her explanation that they were not actually related by blood but were so close that they called each other cousins, the fact that the SUV was owned by a third party, and the apparently “illegally tinted windows,” do not support a conclusion that reasonable suspicion existed that criminal activity might be afoot. When all of the trial court’s relevant findings of fact are considered, I would hold they do not support its conclusion that a reasonable suspicion existed justifying the extended detention of Defendant. I would reverse the trial court’s denial of Defendant's motion to suppress.

. I note that the trial court did not find this “close relationship” as fact; the trial court found as fact that Defendant had stated such.