# State v. Lombardo > Supreme Court of North Carolina · October 5, 1982 · 306 N.C. 594 URL: https://www.frixlaw.com/law-library/cases/9589273 ## Case - **Full name:** State of North Carolina v. Dennis Lombardo - **Court:** Supreme Court of North Carolina - **Decided:** October 5, 1982 - **Citations:** 306 N.C. 594; 295 S.E.2d 399; 1982 N.C. LEXIS 1545 - **Precedential status:** Published - **Opinion:** Dissent by Exum - **Judges:** Carlton, Exum, Copeland, Martin - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9589273 ## Opinion text Justice EXUM dissenting. I. I cannot agree with the majority’s decision to overrule State v. McMilliam, 243 N.C. 775 , 92 S.E. 2d 205 (1956) (McMilliam ID, in order to hold that evidence which has been unlawfully seized is no longer incompetent and inadmissible in probation revocation proceedings. The issue before us is not whether to extend the exclusionary rule to probation revocation hearings; it is whether to depart from the rule we have had for over twenty-six years that evidence which is the product of an illegal search and seizure may not be used to invoke criminal sanctions against a probationer. The majority correctly concludes in Part II-D of its opinion that State v. McMilliam, supra, holds that evidence unlawfully obtained “must be excluded in a probation revocation proceeding.” Because this Court has never overruled its precedent lightly, State v. Dixon, 215 N.C. 161, 167 , 1 S.E. 2d 521, 524 (1939), the pertinent question is whether there is a sufficiently sound basis for reversing McMilliam II. Put another way, the question is “whether the policies which underlie the proposed rule are strong enough to outweigh both the policies which support the existing rule and the disadvantages of making a change.” Walter v. Schaefer, Precedent and Policy, 34 U. Chi. L. Rev. 3 , 12 (1966). It can be demonstrated, when the competing policies are weighed in this matter, that McMilliam II should not be overruled. The majority’s reasons for recanting the McMilliam II rule are: (1) excluding unlawfully obtained evidence in a probation revocation proceeding does nothing to further deterrence of police misconduct absent knowledge by the police that the individual searched is a probationer; (2) permitting a probationer to assert the exclusionary rule would severely damage the probation system; (3) allowing illegally obtained evidence to be admitted does not contravene the policies of G.S. 15A-1343(b)(15); (4) the weight of authority is against the exclusion of illegally-obtained evidence in a probation revocation hearing; and (5) to overrule *606 McMüliam II is sound in light of experience with the exclusionary rule. The most significant reason given by the majority for its decision to overrule McMüliam II is that to do so will not reduce the exclusionary rule’s deterrence of police misconduct, which the Supreme Court in United States v. Calandra, 414 U.S. 338, 347 (1974), considered to be the rule’s “prime purpose.” To me, this argument falls in on itself. For by overruling McMüliam II the majority has simply carved out another exception to the exclusionary rule. Any rule, and whatever values the rule is designed to promote, must necessarily be compromised and its effectiveness reduced in direct proportion to the number of exceptions attached to it. As more exceptions are created to a rule’s application, the weaker the rule becomes. It makes no sense to say that a probation revocation hearing exception to the exclusionary rule does not reduce the deterrent value of the rule. Inexorably it will. The question is not whether the deterrent value of the exclusionary rule will be reduced by our overruling McMüliam II. The question is whether the benefits of continued application of the exclusionary rule to probation revocation hearings outweigh both the rule’s harmful effects and the disadvantages inherent in overruling one of our precedents. In Calandra, supra, the United States Supreme Court was faced with the question whether illegally-seized evidence should be suppressed in grand jury proceedings. The Court analyzed the problem by “weighing] the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context.” 414 U.S. at 349 . In balancing these factors, it determined not to extend the exclusionary rule because to do so “would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury.” 414 U.S. at 351-52 . Factors it considered significant were that grand juries are not presided over by judges, are not impeded by “evidentiary and procedural restrictions applicable to a criminal trial,” and do not “finally adjudicate guilt or innocence.” 414 U.S. at 343, 349-50 . To extend the rule “would delay and disrupt” proceedings and “[suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation *607 of issues only tangentially related to the grand jury’s primary objective.” Id. at 349 . This is the analysis used by the Fourth Circuit Court of Appeals, relying on Calandra , in United States v. Workman, 585 F. 2d 1205 (4th Cir. 1978), in which that court concluded that the exclusionary rule should apply in probation revocation proceedings. But see United States v. Winsett, 518 F. 2d 51 (9th Cir. 1975) (applied Calandra balancing test and concluded that exclusionary rule should not apply in probation revocation proceedings). Applying the exclusionary rule in probation revocation hearings, unlike the problems foreseen for grand jury proceedings by the Supreme Court in Calandra , has few significant harmful effects. In a probation revocation hearing in North Carolina a trial judge presides and routinely culls incompetent evidence. Thus, suppression hearings are handled by the presiding judge without unduly prolonging the proceedings. To apply the rule does not “severely damage” our probation system as the majority asserts; indeed, we have been applying the rule for at least twenty-six years without observable harmful effects. Since McMilliam II, the instant case is the first one to reach our appellate courts in which the applicability of the exclusionary rule in probation revocation proceedings has even been raised. That some guilty individuals will “go free” is admittedly a cost of excluding illegally-obtained evidence. But the cases in which the exclusionary rule is successfully asserted are few indeed and cases dismissed because of it are numerically insignificant. A study conducted by the United States General Accounting Office revealed that the rule has minimal impact on federal case outcomes. In only 1.3 percent of federal felony cases studied was evidence excluded as a result of a Fourth Amendment motion. Virtually no cases were dropped because of search and seizure problems — only four-tenths of 1 percent. Comptroller General of the U.S., Impact of the Exclusionary Rule on Federal Criminal Prosecution, Rep. No. GGD-79-45 (April 19, 1979); see generally, Hearings on Exclusionary Rule Legislation Before the Subcomm. on Criminal Justice of the House Comm, on the Judiciary (statement of Prof. William W. Greenhalgh, Chairperson of American Bar Association’s Criminal Justice Section’s Legislation Comm., on behalf of ABA). As noted, in North Carolina the exclusionary *608 rule’s applicability to probation revocation hearings has been raised in only two appellate cases in twenty-six years. On the other hand, continued application of the exclusionary rule in probation revocation hearings in our state will have the benefit of desirable simplicity. North Carolina courts have long followed the rule that evidence which is incompetent at trial is also incompetent in probation revocation hearings. State v. Hewett, 270 N.C. 348 , 154 S.E. 2d 476 (1967) (revocation of probation may not be supported by incompetent hearsay); State v. Morton, 252 N.C. 482 , 114 S.E. 2d 115 (1960) (must be sufficient competent evidence to support revocation); State v. Pratt, 21 N.C. App. 538 , 204 S.E. 2d 906 (1974) (hearsay evidence incompetent and insufficient to support revocation). The McMilliam II rule is simply another application of the more general proposition. The majority’s holding that evidence will not be excluded “so long as the enforcement officer does not know that the defendant is on probation” unduly complicates the law. How will this rule work? In the instant case there is no evidence that D’Azevedo and Johnson knew or did not know of defendant’s probationary status. The majority assumes, because defendant was convicted in North Carolina and seized and searched in Miami’s airport, that the officers were not aware of his probationary status. But these officers were on routine duty in the airport, and their work was reviewed by the captain of the Narcotic Investigation Section. It is at least possible, if not probable, that drug enforcement officers in Miami are aware of the status of individuals who have been convicted of drug violations in Eastern Seaboard states, particularly when such individuals, like defendant here, possess a Florida driver’s license. Even if there were evidence of the officers’ knowledge of defendant’s status, the majority gives no hint as to what kind of knowledge would invoke the exclusionary rule. Is mere knowledge that an individual is on probation, without knowledge of the specific conditions of his probation, sufficient? The majority offers little guidance for our trial courts who must administer its new rule. Overruling McMilliam II seriously undercuts the policies behind G.S. 15A-1343(b)(15) which states: “The court may not require as a condition of probation that the probationer submit to any other search that would otherwise be unlawful.” I fail to see *609 the majority’s “crucial distinction between the conditions that may be imposed on a probationer and the type of evidence that may be used to prove a violation of these conditions.” The broader policy served by this statute is that a probationer’s constitutional protection against unlawful searches should be equal to the protection accorded other citizens. But to admit evidence that was obtained through an unlawful search of a probationer achieves the same practical effect as requiring him to submit to it. It renders the protection of the statute meaningless. Finally, the McMilliam II rule protects certain basic principles of our jurisprudence. First, as the Fourth Circuit pointed out in United States v. Workman, supra, 585 F. 2d at 1211 : [T]he Supreme Court has never exempted from the operation of the exclusionary rule any adjudicative proceeding in which the government offers unconstitutionally seized evidence in direct support of a charge that may subject the victim of a search to imprisonment. Indeed, the Court has observed that standing to invoke the exclusionary rule ‘is premised on a recognition that the need for deterrence and hence the rationale for excluding the evidence are strongest where the Government’s unlawful conduct would result in imposition of a criminal sanction on a victim of the search.’ United States v. Calandra, 414 U.S. 338, 348 , 94 S.Ct. 613, 620 , 38 L.Ed. 2d 561 (1974). Second, excluding unlawfully obtained evidence assures the integrity of the judicial process and promotes the integrity of the executive branch. As stated in Mapp v. Ohio, 367 U.S. 643, 659 (1961): Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandéis, dissenting, said in Olmstead v. United States, 277 US 438, 485 (1928): ‘Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. ... If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’ Who is in more need than the probationer of the example the government sets by refusing to use the illegal actions of its *610 agents to exact a penalty? The government, assisted by the judiciary, does little to further the goal of probation — defendant’s rehabilitation — when it allows illegal means to be used to prove he has violated a condition of probation. In conclusion, I believe we should refuse to overrule McMilliam II even though it may be against the weight of authority from other jurisdictions. The better-reasoned approach, and the one which should be more meaningful to us, is that taken by our own Fourth Circuit Court of Appeals in United States v. Workman, supra, 585 F. 2d 1205 . I see little to be gained by abolishing the exclusionary rule in probation revocation proceedings and much to be lost. We are no wiser than the Court which decided McMilliam II, authored by Justice, later Chief Justice, Parker. The case is not clearly wrong. Indeed, to me, it is clearly right. It should remain the law in North Carolina. II. Because I believe unlawfully obtained evidence must be excluded in defendant’s probation revocation proceeding, I reach the second question raised by defendant. This question is whether his claim check was taken by law enforcement officers in the Miami airport in violation of his constitutional protection against unreasonable searches and seizures, thus tainting the subsequent identification of his luggage and evidence upon which the search warrant was based and in turn tainting the evidence seized during the subsequent search of his suitcase. The Fourth Amendment of the United States Constitution guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause.” This guarantee is applicable to the states. Mapp v. Ohio, supra, 367 U.S. 643 . The question is at what point a non-border stop of a traveler at an airport by law enforcement personnel triggers the protection of the Fourth Amendment^ The Fifth Circuit, sitting en banc, recently attempted to synthesize United States Supreme Court decisions on search and seizure and their own precedent in the context of the “stops, interrogations, and searches of suspected drug smugglers by law enforcement officers at airports.” United States v. Berry, 670 F. 2d 583, 588 (5th Cir. 1982). In a scholarly opinion by Judge Frank *611 M. Johnson, Jr., the Court developed a useful analytical framework for assessing the constitutionality of law enforcement activity in airports. The Court relied on Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, in rejecting the argument by the defendants that any interrogation police initiate at an airport must be held an impermissible seizure unless it is based on reasonable suspicion. United States v. Berry, supra, 670 F. 2d at 590-91 . In Terry , the Supreme Court balanced the government’s interest in effective police investigative techniques against the individual’s interest in personal security. 392 U.S. at 20-27 . It concluded that a police officer with reasonable grounds to believe that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or other’s safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. 392 U.S. at 30-31 . Subsequent cases have affirmed the proposition that an officer may make a brief investigatory stop, if not done too intrusively, when he has a reasonable suspicion that an individual is involved in criminal activity. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Adams v. Williams, 407 U.S. 143 (1972). The Court of Appeals in Berry also noted that the Supreme Court has not considered all contact between police and private citizens as being within the scope of the Fourth Amendment. For example, in Terry v. Ohio, 392 U.S. at 19 n. 16, the Court stated, “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” See also Sibron v. New York, 392 U.S. 40, 63 (1968). Cf. Schneckcloth v. Bustamonte, 412 U.S. 218, 225 (1973) (voluntariness of consent to a search at issue). *612 Thus, the Berry court concluded, 670 F. 2d at 591 , that Supreme Court cases have carved “three tiers of police-citizen encounters: communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief ‘seizures’ that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause.” As illustrated in Terry v. Ohio, supra, and our own opinion in State v. Rinck, 303 N.C. 551 , 280 S.E. 2d 912 (1981), a contact between a police officer and a citizen may be initiated on a reasonable, articulable suspicion of criminal activity and then develop into an arrest supported by probable cause. The “seizure” referred to in Berry has sometimes been referred to in our cases as “a brief stop,” “investigatory stop,” temporary detention “for purposes of investigating,” State v. Douglas, 51 N.C. App. 594, 596-97 , 277 S.E. 2d 467, 468-69 (1981), aff’d per curiam, 304 N.C. 713 , 285 S.E. 2d 802 (1982), or simply a “stop,” State v. Rinck, supra, 303 N.C. at 560 , 280 S.E. 2d at 920 . Defendant argues that the initial stop by Detective D’Azevedo was unlawful because it was not based on a reasonable suspicion that defendant was involved in criminal activity. However, as the Berry Court ably demonstrates, the Supreme Court has never decided whether an initial stop of a citizen in an airport is a seizure which must be supported by reasonable suspicion. 670 F. 2d at 591-94 . In United States v. Mendenhall, 446 U.S. 544 (1980), the Court considered the question of whether a stop by Drug Enforcement Administration Agents (DEA) of an airline passenger who fit aspects of a “drug courier profile” 1 was a *613 seizure. The Court was unable, however, to achieve a majority opinion on whether a seizure occurred. In addition, in Mendenhall the defendant was found to have freely consented to accompany the DEA agents to their office and to the search of her person. In another airport case, Reid v. Georgia, 448 U.S. 438 (1980) (per curiam), the Court did not address the issue of whether the defendant had been seized when he was approached by a DEA agent who identified himself as such and asked defendant and another man for their airline ticket stubs and identification. The Court merely decided that the state court decision could not stand in that it held the stop was a lawful “seizure” based on reasonable suspicion because the defendant fit the DEA drug courier profile in a number of respects. The Berry Court examines Mendenhall and Reid along with Brown v. Texas, 443 U.S. 47 (1979) (detention of pedestrian in high crime area), Delaware v. Prouse, 440 U.S. 648 (1979) (automobile stop case), and United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (stop of vehicles at border checkpoints). It determined that no case answered the question whether an airport stop is always an impermissible seizure if unsupported by reasonable suspicion or probable cause. 2 It did determine from the precedent, however, that the proper analytic approach to answering the question is by “weighing the intrusion on an individual’s Fourth Amendment interest against the government interest.” 670 F. 2d at 594 . The Court balanced the “very substantial” governmental interest in ending drug smuggling against the intrusion on an individual’s Fourth Amendment privacy interests. Id. at 594-595 . It concluded “that airport stops of individuals by police, if of extremely restricted scope and conducted in a completely non-coer *614 cive manner, do not invoke the Fourth Amendment.” Id. at 594 . The balance is “extremely delicate” and the difference between “voluntary, unintrusive communication between police and citizens” and “forced interrogation by police that is so intrusive as to be a seizure, regardless of the government interests involved, rests on fine distinctions in the degree of coercion police may use in an airport stop.” Id. at 595 . The test the Court used of when a seizure has occurred is the same suggested by Justice Stewart in Mendenhall. Id. A stop is a seizure “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” 446 U.S. at 554 . If a stop has been deemed a seizure it is constitutional only if based on a reasonable suspicion, 670 F. 2d at 598 , or as we have said, “reasonable grounds to believe that criminal activity may be afoot.” State v. Rinck, supra, 303 N.C. at 559 , 280 S.E. 2d at 919 . The Supreme Court has held that mere similarity of a defendant with aspects of the DEA drug courier profile does not give rise to a reasonable suspicion because generally the “circumstances describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure.” Reid v. Georgia, supra, 448 U.S. at 441 . The Berry Court concluded that the presence of a particular factor on a drug courier profile does not preclude its use if an officer, in light of his experience and the circumstances of the particular case, can demonstrate it supports a reasonable suspicion that an individual is involved in smuggling drugs. 670 F. 2d at 601 . The Court went on to discuss when a seizure may be so intrusive as to be tantamount to an arrest which must be supported by probable cause. It stated that if individuals are required, without their consent, to accompany police to an airport office, it is an arrest which must be supported by probable cause. Id. at 601-03 . We have said that an arrest occurs when “law enforcement officials interrupt [one’s] activities and significantly restrict his freedom of action.” State v. Rinck, supra, 303 N.C. at 558 , 280 S.E. 2d at 919 . On the facts regarding the two defendants in Berry , the Court concluded that the initial stop to ask an individual’s identification and travel plans, even though motivated by the agent’s *615 suspicion that the individual was a drug smuggler, was not a seizure. When it was determined from that stop that Berry was attempting to hide his true identity, was traveling with a companion, and initially had given a false name to the agents, there was a reasonable suspicion justifying a seizure of him and his companion in light of their earlier nervousness and the officers’ knowledge that Berry had the name of a person for whom they had been told to watch. The Court further found that the subsequent decision of Berry and his companion to accompany the agents to their office and to submit to a search was freely given consent under facts not pertinent to the question raised by defendant Lombardo. Upon the principles enunciated in Berry , with which I agree, and the Supreme Court precedents on which it is based, I conclude that the initial stop of defendant by Officer D’Azevedo was a permissible encounter outside the prohibition of the Fourth Amendment. D’Azevedo identified himself and asked defendant to speak with him for a moment. Defendant stopped and D’Azevedo asked for his ticket and identification. Even though D’Azevedo stopped defendant because he says his suspicions were aroused by his nervousness and his actions with his claim check, 3 there is no evidence that the officers conveyed that impression to Lom-bardo or that his decision to identify himself was the product of coercion. 4 A citizen may choose to cooperate with police requests. Whether defendant’s increased nervousness and the discrepancy in names on his ticket and license gave rise to a reasonable suspicion for a more intrusive investigation constituting a seizure by D’Azevedo need not be decided because there was no justification for Johnson’s grabbing defendant from behind and seizing his claim check from him while D’Azevedo was *616 writing down defendant’s name and license number. Johnson was about ten yards behind defendant. He did not know at that time that there was any discrepancy in the names on the driver’s license and the ticket. He did note that defendant appeared to be extremely nervous. His concern for D’Azevedo’s safety aroused by defendant putting his claim check into his pocket and continuing to reach deeper into the pocket is unreasonable in light of his previous observation that defendant was wearing very tight jeans. If defendant’s jeans were indeed very tight, then the presence of a weapon would have been apparent before defendant reached into his pocket. Because none was noted by Johnson and because there was no basis for believing at that point that the claim stub was evidence of a crime, I believe he had no justification for grabbing defendant. Furthermore, Johnson’s actions in grabbing defendant, securing him against a ticket counter while advising him he was a police officer and not to struggle was an arrest, State v. Rinck, supra, and not merely a temporary detention which may be based on a reasonable suspicion of criminal activity. As an arrest, it must be supported by showing probable cause. There being no probable cause at that time for defendant’s arrest, Johnson’s subsequent taking of the claim check from defendant and use of it to retrieve defendant’s luggage was impermissible, as was his having the luggage sniffed by the U.S. Customs dog. Thus the search warrant obtained with this information and the marijuana obtained from the search of defendant’s luggage were unlawful as being fruits of an illegal arrest. I believe the trial court properly suppressed this evidence of defendant’s possession of illegal drugs at his probation revocation hearing. I believe the decision of the Court of Appeals should be reversed. Justices Copeland and Martin join in this dissent. . A “drug courier profile” is a list prepared by the DEA of characteristics it believes many drug smugglers possess. Apparently, the list of characteristics changes from airport to airport. United States v. Berry, 670 F. 2d at 698 -99 n. 17. In Elmore v. United States, 595 F. 2d 1036 , 1039 n. 3 (5th Cir. 1979), cert. denied, 447 U.S. 910 (1980), the following list was given of factors which may be found on a profile: The seven primary characteristics are: (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; (3) unusual itinerary, such as rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers. *613 The secondary characteristics are (1) the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport; (2) immediately making a telephone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or distribution cities. . The Supreme Court has granted certiorari to review a case in which a Florida Appellate Court held that a motion to suppress should have been granted because the defendant’s consent to search his luggage had been tainted by a previous improper confinement. Florida v. Royer, 389 So. 2d 1007 (Fla. Dist. Ct. App. 1980) (rehearing en banc), pet. for review denied, 397 So. 2d 779 (Fla. 1981), cert. granted, --- U.S. ---, 102 S.Ct. 631 , 70 L.Ed. 2d 612 (1981). . Neither officer indicated that their suspicions were aroused because defendant fit particular factors in a drug courier profile. . I must re-emphasize the point stressed in Berry that the distinction between “voluntary, unintrusive communication” and “forced interrogation” constituting a seizure is subtle. 670 F. 2d at 696 . The record before us shows that defendant produced his driver’s license and ticket in response to the question: “May I please see your ID and ticket?” These words are not facially coercive and no other circumstances up to this point are indicative of coercion. Furthermore, D’Azevedo, prior to asking for defendant’s identification had requested defendant to stop and had identified himself as a police officer. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9589273. Public record. Not legal advice.