On a closely related note, last week the U.S. Supreme Court denied my cert petition about the extension of a car stop without reasonable suspicion in State v. Sellars, ___ N.C. App. ___, 730 S.E.2d 208 (2012), appeal dismissed, review denied, 366 N.C. 395, 736 S.E.2d 489 (2013). I'm writing this listserv post to ask everyone to be on the alert in your cases for the Sellarsissue because I think it's still a viable issue.
The question in Sellars was whether, after an officer completes a traffic stop by returning the driver's license and giving the driver a ticket, the officer may continue to detain the driver for a drug dog sniff without having reasonable suspicion to believe that there are drugs in the car. The issue isn't whether the officer can conduct a dog sniff, since the Supreme Court has held that a dog sniff is not a 4th Amendment search. Rather, the issue is whether the 4th Amendment prohibition against unreasonable seizures allows the officer to continue to detain the driver for any amount of time without reasonable suspicion to believe the driver or the car possesses evidence of a crime not related to the traffic violation. The NC COA held that an officer can continue to detain the driver without reasonable suspicion for a short ("de minimis") amount of time after the traffic stop has been completed to investigate other criminal wrongdoing. I say that's obviously wrong, that the stop cannot be extended without reasonable suspicion because the driver at that point is in the same position under the 4th Amendment that he or she was in before the stop began. The NCSC denied my PDR. And now the USSC has denied the cert petition.
Of course, it's impossible to know why the USSC denied cert, but it's clear that the case got someone's interest on the Court -- the Court ordered the state to respond to my petition after the state waived a response, and the Court relisted the case for a second conference. My guess: Sellars was an appeal by the state to the COA of the trial court's pretrial order granting the suppression motion, the case has not yet gone to trial, and the Court was reluctant to grant cert on a case that had not yet resulted in a conviction.
So, if the Sellars issue comes up in one of your cases, PLEASE preserve the 4th Amendment seizure issue, i.e., continued detention of the driver after the completion of the traffic stop, without reasonable suspicion. Also, note that the COA in Sellars held that the "de minimis" continued detention in that case -- 4 minutes and 37 seconds - was OK. If the continued detention in your case is substantially longer (e.g., the officer continued to detain the driver for 15 minutes to wait for the arrival of a K-9 unit), you might still win even under Sellars. Feel free to call me to discuss the issue. And please alert me to trial court suppression rulings on the Sellars issue in your cases, so we can take this issue up on appeal again - to the COA, to the NCSC and, if necessary, to the USSC.
Thanks.
Ben Dowling-Sendor
Benjamin Dowling-Sendor
Assistant Appellate Defender
Office of the Appellate Defender
123 W. Main Street, Suite 500
Durham, NC 27701
Phone: (919) 354-7210
Fax: (919) 354-7211