Summary
holding that an officer had reasonable suspicion of illegal activity particularized to a passenger in a vehicle stopped for a traffic violation where he was "moving from side to side inside the vehicle and [the officer] also recognized defendant as someone who had been identified to police as a drug dealer"
Summary of this case from State v. CampolaOpinion
No. COA05-1418.
Filed September 5, 2006.
1. Search and Seizure — investigatory search — reasonable suspicion
The trial court did not err in a possession with intent to sell or deliver cocaine case by concluding that an officer seized the occupants of the pertinent vehicle when he pulled behind the vehicle and that the officer did not violate defendant's constitutional rights by asking defendant to step out of the vehicle, because: (1) whether the officer seized the occupants of the vehicle when he pulled behind them or when he approached the vehicle, he had reasonable suspicion of two traffic violations and lawfully conducted a brief detention of the occupants of the vehicle; (2) the officer was justified in asking defendant to step out of the vehicle during the lawful stop of the vehicle; and (3) the officer had reasonable suspicion of criminal activity since the officer saw defendant moving from side to side inside the vehicle and also recognized defendant as someone who had been identified to police as a drug dealer.
2. Search and Seizure — exceeding scope of consent — inspecting defendant's genitals
An officer's search exceeded the scope of defendant's consent, and defendant is entitled to a new trial on charges of possession with intent to sell or deliver cocaine, because: (1) the officer inspected defendant's genitals after he simply obtained general consent to search defendant's person; (2) given the scope of the officer's first search of defendant, a reasonable person would not have expected the second search to entail such an intrusive genital inspection; (3) the fact that defendant did not expressly limit the scope of the second search does not make the second search reasonable; (4) defendant's reaction demonstrated that he could not reasonably have expected the excessive scope of the officer's second search; (5) the officer's testimony demonstrated that he did not have any reason to suspect that defendant was concealing weapons or contraband near his genitals, and the officer had already conducted a full search of defendant's person which had not uncovered any weapons or contraband when he conducted an inspection of defendant's genitals; (6) the officer's discovery of cash in defendant's pocket, while suspicious, did not authorize the officer to proceed with such an intrusive search; (7) the trial court did not make any findings that the two officers attempted to shield defendant's genitals from view; and (8) a reasonable person would not have expected police to pull his pants away from his body and expose his genitals in a parking lot of an apartment complex even if the encounter with police occurred in the early morning hours.
Judge STEELMAN concurring in part and dissenting in part.
Appeal by defendant from order on defendant's motion to suppress entered 16 December 2004 by Judge Albert Diaz and from judgment dated 22 March 2005 by Judge J. Gentry Caudill in Superior Court, Mecklenburg County. Heard in the Court of Appeals 7 June 2006.
Attorney General Roy Cooper, by Special Deputy Attorney General Douglas A. Johnston, for the State. Jarvis John Edgerton, IV for defendant-appellant.
Timothy Stone (defendant) was convicted of possession with intent to sell or deliver cocaine and of having attained the status of habitual felon. The trial court sentenced defendant to 130 months to 165 months in prison.
Defendant filed a motion to suppress evidence in August 2003, arguing he was entitled to "an order suppressing any and all evidence obtained during a search of the person of defendant on October 7, 2002, for the reason that such evidence was obtained as a result of the illegal search and seizure of defendant by Officer R.E. Correa of the Charlotte-Mecklenburg Police Department" (Officer Correa). The trial court conducted a suppression hearing on 8 December 2004 and in an order filed 16 December 2004, denied defendant's motion to suppress.
In its order denying defendant's motion to suppress, the trial court made the following uncontested findings of fact:
1. At approximately 3:30 a.m. on October 7, 2002, [Officer Correa] was on routine patrol in the Nations Ford area of Charlotte, North Carolina.
2. [Officer] Correa has been a CMPD officer for over six years. The Nations Ford area is part of the Steel Creek Division, where he has worked for three years. This particular area has a high incidence of drug and prostitution offenses.
3. On this date, [Officer] Correa noticed a burgundy Oldsmobile [(the vehicle)] leaving the Villager Lodge motel. . . .
4. [Officer] Correa began following the [vehicle]. The [vehicle] accelerated and turned right onto Farmhurst Drive. [Officer] Correa estimated that the [vehicle] was traveling at 50 mph, approximately 15 mph over the speed limit. [Officer] Correa, however, did not activate his blue lights or make any effort to stop the [vehicle].
5. The [vehicle] pulled into the parking lot of an apartment complex on Farmhurst Drive. [Officer] Correa pulled in directly behind the [vehicle] and shone his spot light on the vehicle.
6. [Officer] Correa saw two people in the [vehicle]. He also saw that the vehicle's license plate was displayed on the rear window instead of the bumper. Finally, he noticed that the passenger (in this case, . . . [d]efendant) was moving from side to side.
7. [Officer] Correa approached the driver's side window. The driver appeared very nervous, his hands were shaking, and he would not look at [Officer] Correa.
. . .
10. [Officer] Correa then turned his attention to . . . [defendant, who was not wearing a seatbelt. [Officer] Correa recognized . . . [d]efendant, having previously received an anonymous tip that [defendant was a drug dealer. He asked [defendant for identification, but he could not produce one.
11. [Officer] Correa asked [defendant to step to the back of the vehicle. Defendant complied. [Officer] Correa asked [d]efendant if he had any drugs or weapons on his person. Defendant said no, which prompted [Officer] Correa to ask for consent to search. Defendant gave consent.
12. Defendant was wearing a jacket and a pair of drawstring sweat pants.
13. During the initial search, [Officer] Correa found $552.00 in cash in the lower left pocket of [d]efendant's sweat pants. After advising [defendant that it was not safe to carry such a large amount of cash in that manner as it could easily fall out, [Officer] Correa again asked [d]efendant if he had anything on him. Once again, [d]efendant denied having drugs or weapons and authorized [Officer] Correa to continue the search. By this time, Officer Gerson Herrera [(Officer Herrera)] had arrived as the backup officer.
14. [Officer] Correa checked the rear of [defendant's sweat pants and then moved his hands to the front of [d]efendant's waistband. At that point, [Officer] Correa pulled [d]efendant's sweat pants away from his body and trained his flashlight on . . . [d]efendant's groin area. Defendant objected, but by that time, both [Officer] Correa and [Officer] Herrera had already seen the white cap of what appeared to be a pill bottle tucked in between [d]efendant's inner thigh and testicles.
15. [Officer] Correa has made several arrests in the past after finding drugs concealed in a suspect's groin area. He immediately suspected that the pill bottle contained contraband. As a result, he and [Officer] Herrera grabbed the protesting [d]efendant and handcuffed him. [Officer] Correa then retrieved the pill bottle from [d]efendant's groin area.
16. Inside the bottle were approximately 130 rocks of crack cocaine weighing 26 grams.
The trial court concluded that Officer Correa "`seized' the occupants of the [vehicle] when he pulled in behind them in the apartment parking lot[,]" and that Officer Correa's traffic stop of the vehicle "was based on a `reasonable suspicion' (if not probable cause) that the driver had been speeding (in violation of N.C. Gen. Stat. § 20-141(b)) and was not properly displaying the vehicle's license tag (in violation of N.C. Gen. Stat. § 20-63(d))." The trial court further concluded that Officer Correa "did not violate [d]efendant's constitutional rights by asking him to step out of the [vehicle]." The trial court also concluded that "[b]efore seeking [d]efendant's consent to search, [Officer] Correa asked [d]efendant whether he had any drugs or weapons on his person. Thus, [d]efendant was on notice as to what [Officer] Correa would be looking for during a search." The trial court concluded that "although [Officer] Correa's search was intrusive, in the absence of [d]efendant placing any particular limit on the scope of the search, the Court finds that it was reasonable." The trial court further concluded as follows:
13. Additionally, the relevant attendant circumstances, including [Officer] Correa's prior sighting of the [vehicle] in a high drug area, the anonymous tip that [d]efendant was a drug dealer, the time of night, the driver's evasive demeanor and responses, and the large wad of cash found on [d]efendant's person, gave [Officer] Correa sufficient reason to suspect that [d]efendant might be hiding contraband and/or weapons somewhere on his person, including his groin area.
14. The search itself was limited and focused (in that the police did not remove or lower [d]efendant's pants), and took place in a private apartment complex parking lot during the early morning hours, with no opportunity for onlookers (other than the police) to gawk at . . . [d]efendant. On these facts, the Court finds that [Officer] Correa did not unlawfully impinge on [d]efendant's privacy interests.
The evidence introduced at trial was substantially similar to the evidence introduced at the suppression hearing. Defendant appeals.
Where a defendant has "failed to assign error to any findings of fact, our review [of the denial of a motion to suppress] is limited to the question of whether the trial court's findings of fact, which are presumed to be supported by competent evidence, support its conclusions of law and judgment." State v. Pickard, 178 N.C. App. 330, 334, 631 S.E.2d 203, 206 (2006). We apply de novo review to a trial court's conclusions of law. State v. Hernandez, 170 N.C. App. 299, 304, 612 S.E.2d 420, 423 (2005).
I.
Defendant argues the trial court erred by concluding that (1) Officer Correa seized the occupants of the vehicle when he pulled behind the vehicle and (2) Officer Correa did not violate defendant's constitutional rights by asking defendant to step out of the vehicle. "The Fourth Amendment to the Constitution of the United States and Section 20 of Article I of the North Carolina Constitution prohibits unreasonable searches and seizures." State v. Sanchez, 147 N.C. App. 619, 623, 556 S.E.2d 602, 606 (2001), disc, review denied, 355 N.C. 220, 560 S.E.2d 358 (2002). The prohibition against unreasonable searches and seizures applies to "`seizures of the person, including brief investigatory detentions such as those involved in the stopping of a vehicle.'" Id. (quoting State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994)).
"An investigatory stop must be justified by `a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'" Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (quoting Brown v. Texas, 443 U.S. 47, 51, 61 L.Ed.2d 357, 362 (1979)). "Similarly, an officer may frisk a person where the officer reasonably suspects that `criminal activity may be afoot and that the [person] with whom he is dealing may be armed and presently dangerous[.]'" State v. Shearin, 170 N.C. App. 222, 226, 612 S.E.2d 371, 375 (quoting Terry v. Ohio, 392 U.S. 1, 30, 20 L.Ed.2d 889, 911 (1968)), disc. review denied, 360 N.C. 75, 624 S.E.2d 369 (2005). In determining whether reasonable suspicion existed for a stop or frisk, a trial court must consider the totality of the circumstances. Shearin, 170 N.C. App. at 226, 612 S.E.2d at 376. Police may order passengers from a vehicle when they have made a lawful traffic stop of the vehicle. State v. Pulliam, 139 N.C. App. 437, 440-41, 533 S.E.2d 280, 283 (2000) (citing Maryland v. Wilson, 519 U.S. 408, 137 L.Ed.2d 41 (1997)).
In the present case, the unchallenged findings of fact show that Officer Correa observed the vehicle driving in excess of the speed limit. Officer Correa pulled behind the vehicle and shined his spot light on the vehicle. He saw that the vehicle's license plate was displayed in the rear window, rather than on the bumper. Officer Correa therefore had reasonable suspicion, if not probable cause, to believe that two traffic violations had occurred.
However, defendant argues the trial court erred by concluding that Officer Correa "`seized' the occupants of the [vehicle] when he pulled behind them in the apartment parking lot." In support of his argument, defendant cites State v. Foreman, 133 N.C. App. 292, 515 S.E.2d 488 (1999), aff'd as modified, 351 N.C. 627, 527 S.E.2d 921 (2000). In Foreman, the defendant was convicted of driving while impaired. Id. at 293, 515 S.E.2d at 490. The evidence at trial showed that a vehicle traveling towards a DWI checkpoint made a quick left turn before the checkpoint, at an intersection where a "DWI Checkpoint Ahead" sign was displayed. Id. An officer witnessed this action and began following the vehicle. Id. The officer saw the vehicle make another abrupt turn and lost sight of the vehicle. Id. The officer found the vehicle parked in a driveway and pulled behind the vehicle. Id. at 294, 515 S.E.2d at 490. The officer turned on his take-down lights and saw people scrunched down in the vehicle. Id. The vehicle's engine was turned off and the doors were closed. Id. at 294, 515 S.E.2d at 490-91. The officer called for backup and continued to watch the vehicle. Id. at 294, 515 S.E.2d at 491. Once backup arrived, the officer approached the vehicle, and saw the defendant in the driver's seat. Id.
Our Court held that the defendant "was seized, at the earliest, when backup arrived." Id. at 297, 515 S.E.2d at 493. Our Court also held that the facts available to the officer before the seizure were "sufficient to raise a reasonable and articulable suspicion of criminal activity." Id. at 298, 515 S.E.2d at 493. Our Supreme Court affirmed our Court's decision that the officer had reasonable suspicion of criminal activity, but held that the defendant was not seized until the officer approached the vehicle. Foreman, 351 N.C. at 630, 527 S.E.2d at 923.
In the present case, whether Officer Correa seized the occupants of the vehicle when he pulled behind them or when he approached the vehicle, Officer Correa had reasonable suspicion of two traffic violations and lawfully conducted a brief detention of the occupants of the vehicle. Defendant also argues the trial court erred by concluding that Officer Correa did not violate defendant's constitutional rights by asking defendant to step out of the vehicle. However, pursuant to Pulliam, Officer Correa was justified in asking defendant to step out of the vehicle during Officer Correa's lawful stop of the vehicle. See Pulliam, 139 N.C. App. at 440-41, 533 S.E.2d at 283. Moreover, Officer Correa did have reasonable suspicion of criminal activity because Officer Correa saw defendant moving from side to side inside the vehicle and also recognized defendant as someone who had been identified to police as a drug dealer. Accordingly, the trial court did not err.
II.
Defendant also argues the trial court erred by concluding that Officer Correa's search did not exceed the scope of defendant's consent. We agree. "Generally, the Fourth Amendment and article I, § 20 of the North Carolina Constitution require issuance of a warrant based on probable cause for searches. However, our courts recognize an exception to this rule when the search is based on the consent of the detainee." State v. Jones, 96 N.C. App. 389, 397, 386 S.E.2d 217, 222 (1989) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L.Ed.2d 854, 858 (1973) and State v. Belk, 268 N.C. 320, 322, 150 S.E.2d 481, 483 (1966)), disc, review denied, 326 N.C. 366, 389 S.E.2d 809 (1990).
"The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of `objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302 (1991). In the context of a search upon probable cause, the United States Supreme Court has stated that the test of reasonableness "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559, 60 L.Ed.2d 447, 481 (1979).
In the present case, Officer Correa asked defendant if he had any drugs or weapons on his person, and defendant said he did not. Officer Correa asked for consent to search defendant and defendant gave consent. Officer Correa searched defendant and found $552.00 in cash in a pocket of defendant's pants. Officer Correa advised defendant it was not safe to carry that much cash and again asked defendant if he had any drugs or weapons. Defendant said he did not and again gave Officer Correa consent to search his person. Officer Correa pulled defendant's sweat pants away from defendant's body and "trained his flashlight on . . . [d]efendant's groin area." Defendant objected, but Officer Correa had already seen a white pill bottle cap "tucked in between [d]efendant's inner thigh and testicles."
We conclude that Officer Correa exceeded the scope of defendant's consent when he inspected defendant's genitals. First, Officer Correa did not obtain specific consent to visually inspect defendant's genitals. Officer Correa simply obtained general consent to search defendant's person. Second, given the scope of Officer Correa's first search of defendant, a reasonable person would not have expected the second search to entail such an intrusive genital inspection. Third, the fact that defendant did not expressly limit the scope of the second search does not make the second search reasonable. Defendant could not reasonably have expected that Officer Correa would visually inspect defendant's genitals. Therefore, defendant had no reason to limit the scope of the second search. This is further demonstrated by defendant's reaction when Officer Correa pulled defendant's sweat pants away from defendant's body and trained his flashlight on defendant's genitals. Defendant objected to this intrusion; however, the trial court found that Officer Correa had already seen the white cap of the pill bottle. Nevertheless, defendant's reaction demonstrates that he could not reasonably have expected the excessive scope of Officer Correa's second search.
We also examine Officer Correa's justification for the search. Although the trial court concluded that the attendant circumstances "gave [Officer] Correa sufficient reason to suspect that [d]efendant might be hiding contraband and/or weapons somewhere on his person, including his groin area[,]" this conclusion was erroneous. At the suppression hearing, Officer Correa testified that when he asked for consent to search defendant a second time, he "was not really expecting to find anything, honestly." Officer Correa also testified on cross-examination that "[w]hen I ask if I can search, I check everywhere. That's just standard procedure, that's just the way I was taught, that you search everywhere because drugs, guns, money, weapons, anything can be concealed under their clothing as well." Officer Correa's testimony demonstrates that he did not have any reason to suspect that defendant, in particular, was concealing weapons or contraband near his genitals. Rather, Officer Correa conducted genital searches as a matter of course. Furthermore, Officer Correa had already conducted a full search of defendant's person, which had not uncovered any weapons or contraband, when he conducted an inspection of defendant's genitals. Because Officer Correa's first full search did not uncover any weapons or contraband, Officer Correa reasonably did not expect to find anything on his second search, and accordingly had little justification for conducting a visual inspection of defendant's genitals. Officer Correa's discovery of the cash in defendant's pocket, while suspicious, did not authorize Officer Correa to proceed with such an intrusive search.
The trial court also concluded that "[t]he search itself was limited and focused (in that the police did not remove or lower [d]efendant's pants), and took place in a private apartment complex parking lot during the early morning hours, with no opportunity for onlookers (other than the police) to gawk at . . . [d]efendant." However, the trial court did not make any findings that Officer Correa or Officer Herrera attempted to shield defendant's genitals from view. A reasonable person would not have expected police to pull his pants away from his body and expose his genitals in a parking lot of an apartment complex, even if the encounter with police occurred in the early hours of the morning.
In view of the factors examined above, we conclude that a reasonable person in defendant's circumstances would not have understood that he would be subjected to an inspection of his genitals. See Jimeno, 500 U.S. at 251, 114 L.Ed.2d at 302. We further conclude that the need for an inspection of defendant's genitals was outweighed by the significant invasion of defendant's personal rights. See Bell, 441 U.S. at 559, 60 L.Ed.2d at 481. Accordingly, we hold that the trial court erred by denying defendant's motion to suppress and defendant is entitled to a new trial.
New trial.
Judge ELMORE concurs.
Judge STEELMAN concurs in part and dissents in part with a separate opinion.