Opinion: Daily Journal

Case of highway drug bust offers interesting split within N.C. Supreme Court

Judicial candidates on the campaign trail in North Carolina tend to avoid harsh criticism of their opponents. In contrast, written judicial opinions often feature pointed jabs.

The N.C. Supreme Court’s recent decision in State v. Reed offers a good example.

The case stems from a 2014 traffic stop that turned into a drug bust on Interstate 95 in Johnston County. The issue North Carolina’s highest court addressed in a Feb. 28 ruling was whether evidence in the drug case should have been thrown out because a State Highway Patrol trooper violated a driver’s Fourth Amendment rights.

Defendant David Michael Reed was driving 78 miles per hour in a 65 mph zone when Trooper John Lamm stopped him during a weekday morning rush hour. Reed had a New York driver’s license and was driving a rental car. Reed’s fiancée and passenger had rented the car in her name. The rental agreement limited the car’s use to New York, New Jersey, and Connecticut. The couple were traveling with a pit bull, and dog food was scattered along the car’s floorboard.

While conducting the traffic stop, Lamm had Reed sit in his patrol car, at one point ordering Reed to close the door. After confirming information about the car rental, Lamm indicated that the traffic stop was over. He planned to write Reed a warning ticket.

At this point, Lamm said, “I’m going to ask you a few more questions if it is OK with you.” Lamm testified during Reed’s trial that Reed had been free to leave at that point, but the trooper admitted he never offered Reed the chance to go.

Lamm’s testimony also indicated he would have continued to detain Reed, even if Reed had refused a request to search the rental vehicle and had asked to leave. At one point, a second state trooper arrived and positioned himself outside Lamm’s car door near Reed.

Lamm secured the fiancée’s permission to search the car. He found enough cocaine in the back seat to file trafficking charges. Reed pleaded guilty. He was sentenced to nearly six years in prison and a $100,000 fine.

Reed appealed, and a divided panel of the N.C. Court of Appeals agreed the drug evidence never should have been admitted into court. Two of three appellate judges concluded Lamm never should have extended the traffic stop past the point of deciding to issue the warning ticket.

In its first 4-3 split ruling this year, the Supreme Court agreed with the Appeals Court’s majority. “The officer impermissibly prolonged the traffic stop without a reasonable, articulable suspicion to justify his action to do so and without defendant’s voluntary consent,” concludes Justice Michael Morgan in his majority opinion. Chief Justice Cheri Beasley and Justices Anita Earls and Robin Hudson joined Morgan.

The case produced two separate dissents. Justice Mark Davis, joined by colleagues Sam Ervin IV and Paul Newby, chastises the majority for concluding that Lamm had no reasonable suspicion about Reed. Davis cites seven different facts in the case that were consistent with drug-dealing activity. (Among them: Drug dealers often scatter dog food in a car to throw off drug-sniffing dogs.)

“The majority fails to offer any explanation as to why these factors — when looked at together — were not enough to meet the relatively low standard necessary to establish reasonable suspicion,” Davis writes. “Instead, the majority examines each factor individually and in isolation despite the wealth of case law cautioning against such an approach. Not surprisingly, the majority fails to cite any case in which either this Court or the United States Supreme Court has held that reasonable suspicion was lacking in the face of anything close to the combination of circumstances presented here.”

“Here, the undisputed evidence showed that Trooper Lamm is an experienced law enforcement officer who has been employed by the State Highway Patrol for over 11 years, three of which were spent in the drug interdiction unit,” Davis adds. “I believe the majority errs in failing to take into any account whatsoever his training and experience upon being confronted by these circumstances.”

Davis warns of potential negative consequences for future law enforcement work. “Under the majority’s analysis, Trooper Lamm somehow acted unconstitutionally simply by responding in accordance with his training upon his recognition of seven factors that were suggestive of criminal activity,” he writes. “Based on the majority’s opinion, law enforcement officers in future cases who similarly observe a combination of circumstances that they have been taught to view as suspicious will presumably be forced to ignore their training and forego further investigation for fear of being deemed to have acted without reasonable suspicion.”

Newby chimes in with a separate dissent. “After the paperwork has been returned at the end of a traffic stop, can an officer ask an individual for consent to ask a few more questions?” Newby asks. “The majority seems to answer this question no, holding that asking for permission to ask a few more questions unlawfully prolongs the traffic stop. In so holding, the majority removes a long-standing important law enforcement tool, consent to search.”

“A traffic stop can be lawfully extended based on reasonable suspicion or consent,” Newby adds. In addition to the factors for reasonable suspicion articulated in Davis’ dissent, “I would also uphold the search of the car based on defendant’s consent to prolong the stop to answer a few more questions and the subsequent valid consent to search the car.”

Morgan responded to his colleagues’ criticism. “[W]hile the dissenters couch our decision in a manner which they view as creating uncertainty among law enforcement officers and upsetting established law regarding the concepts of reasonable suspicion and consent to search, their collective desire to extend and to expand the ample discretion afforded to law enforcement officers to utilize their established and recognized authority in the development of reasonable suspicion and the attainment of consent to search would constitute the type of legal upheaval which they ironically claim our decision in this case creates,” he writes.

“Clarity regarding a detained individual’s freedom to leave serves to preserve and to promote the safety of both the motorist and the investigating law enforcement officer; the equivocal, presumptive, and inarticulable observations of the trooper here which the dissenters would implement as legal standards would serve to detract from such clarity.”

Davis, Newby, and Beasley all appear on the November election ballot. The debate surrounding State v. Reed might offer voters more clarity about where these justices stand on issues linked to law enforcement and Fourth Amendment rights.

Mitch Kokai is senior political analyst for the John Locke Foundation.