Red Bull Gives You Reeeasonable Suspiciiion

STATE v. EUCEDA-VALLE, NC Court of Appeals No. COA06-898, http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060898-1.htm , on appeal from Vance County Superior Court, before Judges Levinson, McCullough, Bryant, opinion by Levinson, filed 20 Mar 2007.

LONG STORY SHORT: Along with several other well-recognized drug courier behaviors, numerous empty Red Bull cans on the floor added up to enough reasonable suspicion under the Fourth Amendment to detain motorists for a K9 sniff. Binding in NC unless reversed by the NC Supreme Court.

FACTS: Defendant, with one passenger, was doing 71 in a 65 and following too closely on I-85 when Officer Spence of Henderson, NC PD stopped him. Defendant had a valid license but the car was registered to someone else. Defendant and the passenger's hearts were beating so hard, their shirts were nearly bouncing off their chests. Only one key, not on a keychain, was in the ignition. Inside the car, Officer Spence could smell a strong odor of air freshener, consistent with an effort to mask the smell of drugs, and noticed several empty cans of Red Bull energy drink, consistent with a driver trying to stay alert on a long trip.

Officer Spence asked Defendant to sit with him in the patrol car. Defendant was so nervous that Officer Spence could see Defendant's carotid artery pulsing. Officer Spence asked for K9 backup and began writing a warning ticket for speeding. Defendant would not look at him, and claimed he had the car for two or three days and was going to Richmond. This was materially different from how the passenger described the trip. The K9 officer arrived as Officer Spence was finishing the warning ticket, and he detained Defendant long enough for the K9 to alert on Defendant's car. The officers found ten packages in the trunk totaling 4.98kg of cocaine, all wrapped in fabric softener sheets.

PROCEDURE: North Carolina indicted Defendant and the passenger in Vance County Superior Court for trafficking in cocaine by transporting more than 400g, conspiracy to traffic more than 400g, and maintaining a vehicle for controlled substances. Defendant moved to suppress the cocaine, arguing that the totality of the circumstances did not establish reasonable suspicion. The trial court entered extensive findings of fact and ruled that Officer Spence had articulable and reasonable suspicion that criminal activity, probably involving controlled substances, was afoot. MOTION TO SUPPRESS DENIED. Defendant went to trial and was convicted as charged. He appealed his convictions and sentences to the North Carolina Court of Appeals.

DECISION: Trial courts' rulings on motions to suppress are entitled to great deference on appeal, because the trial court was there to evaluate witness credibility. Defendant did not challenge any factual findings on appeal, leaving only questions of law. Under both the Fourth Amendment and the North Carolina Constitution, Article I Section 20, a K9 sniff that detects only contraband is not an unreasonable search. An officer may not detain a person just to conduct a K9 sniff unless the totality of circumstances establish reasonable suspicion of criminal activity. Here, there were enough hallmarks of drug activity--strong air freshener scent, extreme nervousness, non-owner driver, single key in the ignition, different stories, and evidence of heavy Red Bull consumption to stay awake--to support a reasonable and cautious LEO's suspicion that criminal activity is afoot. DENIAL OF SUPPRESSION AFFIRMED.

However, other than both men being nervous in the same car, there was no evidence of conspiracy to traffic. Had the passenger been armed, or possessed drugs or a large amount of cash, that might have made a difference, but here, not enough evidence existed for a reasonable jury to eliminate reasonable doubt, and the trial court should have acquitted Defendant of conspiracy as a matter of law. REVERSED IN PART.

EDITORIAL: Maybe you saw the Australian Grand Prix, where David Coulthard tried to cut inside Alexander Wurz on Turn Three and wrecked both of them. Well, at least Alex's onboard cam caught a bodacious shot of the Red Bull logo on DC's car as he bounced over Alex's front fuselage (and nearly decapitated poor Alex). Is that why they say "Red Bull Gives You Wiiings"? Now we see that Red Bull, through no fault of its own, might be the drink of choice for long-haul dope drivers. Happily, they also say "there is no such thing as bad publicity."

There's always more to learn about drug activity telltales. How about a lot of coffee cups to stay awake--and to mask drug smells more convincingly? The dryer sheets are really getting to be cliche.