State v. Stollings, COA24-138, ___ N.C. App. ___ (Dec. 17, 2024)

In this Rowan County case, defendant appealed after pleading guilty to possession of methamphetamine and drug paraphernalia and carrying a concealed handgun, arguing error in denying his motion to suppress as the products of an unlawful search and seizure. The Court of Appeals vacated the judgment, set aside the plea agreement in its entirety, and remanded for new proceedings on defendant’s motion to suppress.

In March of 2020, detectives were observing a fish game arcade when they saw a black SUV. After running the plates, they determined the SUV was registered to the spouse of defendant, a person one of the detectives was familiar with receiving information that defendant sold drugs in the past. Based only on this information, the detectives followed the SUV, eventually pulling it over near the Davidson County line for speeding 5 mph over the limit. During the stop, a K-9 unit performed an open-air sniff around the vehicle, alerting on the driver’s side near the gas lid. A detective searched defendant, finding methamphetamine in his pocket, and a search of the vehicle found a pistol near the center console and a set of scales, but no further contraband. Prior to trial, defendant filed a motion to suppress all the evidence, but the trial court denied the motion due to the K-9 alert. Defendant then entered into a plea agreement, reserving his right to appeal the denial.

Taking up defendant’s argument, the Court of Appeals began with the findings of fact, noting “material conflicts remain in the evidence as to whether the officers observed Defendant engage in suspicious activity, the basis for the search of Defendant’s person, and whether the K-9 positively alerted on Defendant’s vehicle for the presence of drugs.” Slip Op. at 5. The court then walked through Findings 19, 26, 27, 33, and 36, noting many of the findings simply recited the testimony of the detectives. The court highlighted findings 33 and 36, where the trial court recited testimony from two detectives regarding a K-9 alert and discussed troubling testimony about one detective waiving something near the rear tire where the K-9 was alleged to have alerted. This was not sufficient, as the court explained “[t]his witness testimony cannot substitute for a finding by the trial court that the K-9 alerted.” Id. at 12.

The court then reached conclusion of law 2, regarding the positive alert of the K-9 unit giving “reason” to search the vehicle and defendant’s person. Here the court pointed out that in conclusion of law 1, the trial court properly mentioned “probable cause,” but in conclusion 2, only mentioned “reason” to conduct the searches. Id. at 13. Additionally, “even if the trial court properly concluded the K-9 sniff gave probable cause to search the vehicle, it could not have given probable cause to search Defendant’s person.” Id. Because “the trial court’s denial of the Motion to Suppress was entered upon an improper legal standard,” the court remanded for new proceedings on the motion to suppress. Id. at 14.

Judge Gore concurred in the result only.