State v. Stone

STEELMAN, Judge,

concurring in part and dissenting in part.

I concur with the first portion of the majority opinion affirming the trial court’s ruling as to the stop of the vehicle. However, I must respectfully dissent from the second part of the opinion with regard to the scope of defendant’s consent to Officer Correa’s search.

The two pertinent questions with respect to this issue are: (1) whether the search of defendant constituted a strip search, thus requiring specific consent; or (2) whether the search, if not a strip search, was objectively reasonable such that it did not exceed the defendant’s scope of consent.

*307 Appellant does not argue that any of Judge Diaz’s findings of fact are erroneous. This Court is therefore bound by these findings and our review is limited to whether the conclusions of law are supported by the findings of fact. Stale v. Tate, 300 N.C. 180, 184 , 265 S.E.2d 223, 226 (1980). The trial judge found that defendant gave consent to search his person on two separate occasions, one before Officer Correa found $552.00 in defendant’s pocket and one after. The trial judge also found that “[a]t no time prior to Correa and Herrera finding the pill bottle in [defendant's underwear did the [defendant limit the scope of either search.”

I: Strip Search

“A search of the person may range from a Terry-type pat-down to a generalized search of the person to the more intrusive strip search or body cavity search.” Hughes v. Commonwealth, 31 Va. App. 447, 455 , 524 S.E.2d 155, 159 (2000). “These three categories [pat-downs, strip searches, and body cavity searches] are subject to different standards because of the varying degrees of intrusion that they entail.” United States v. De Gutierrez, 667 F.2d 16, 19 (5th Cir. 1982). Courts have consistently held pat-downs and generalized searches of the person are within the scope of a consent search, but the heightened intrusions of strip searches and cavity searches are objectively unreasonable unless supported by probable cause or specific consent. See, e.g., United States v. Rodney, 956 F.2d 295 (D.C. Cir. 1992); Johnson v. State, 613 So. 2d 554 (Fla. 1993); Hughes, 31 Va. App. 447 , 524 S.E.2d 155 .

Although many states have statutory definitions for “strip search,” our legislature has not chosen to define this term. Cf. Amaechi v. West, 237 F.3d 356, 365 (4th Cir. 2001). Neither the United States Supreme Court nor the appellate courts of North Carolina have defined the term “strip search.” Because other states’ statutes are not binding upon our courts and there is no common law definition within North Carolina, “we must give it that meaning generally recognized by lexicographers.” Clinard v. White, 129 N.C. 182, 183 , 39 S.E. 960 , 960 (1901). Ntrip search is defined as “[a] search of a person conducted after that person’s clothes have been removed, the purpose usu. being to find any contraband the person might be hiding.” Black’s Law Dictionary 1378 (8th ed. 2004).

In the instant case, the trial court in its findings described the search of the defendant:

*308 Correa checked the rear of Defendant’s sweat pants and then moved his hands to the front of Defendant’s waistband. At that point, Correa pulled Defendant’s sweat pants away from his body and trained his flashlight on the Defendant’s groin area. Defendant objected, but by that time, both Correa and Herrera had already seen the white cap of what appeared to be a pill bottle tucked in between Defendant’s inner thigh and testicles.

Applying the aforementioned definition of strip search, the facts as found by the trial court show that there was no removal of defendant’s clothing during Officer Correa’s search of defendant. Officer Correa only “pulled [defendant's sweat pants away from his body” without removing them. Therefore, I conclude that Officer Correa’s search of defendant did not rise to the level of a strip search, and therefore, the specific consent of defendant to perform a strip search was not required.

II: Scope of Consent

“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)). “ ‘The scope of the search can be no broader than the scope of the consent.’ ” State v. Johnson, 177 N.C. App. 122, 124 , 627 S.E.2d 488, 490 (2006) (quoting State v. Jones, 96 N.C. App. 389, 397 , 386 S.E.2d 217, 222 (1989)). “ ‘When an individual gives a general statement of consent without express limitations, the scope of a permissible search is not limitless. Rather it is constrained by the bounds of reasonableness[.]’ ” Johnson, 177 N.C. App. at 125 , 627 S.E.2d at 490 (quoting United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 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?” Johnson, 177 N.C. App. at 125 , 627 S.E.2d at 490 (quoting Florida v. Jimeno, 500 U.S. 248, 251 , 114 L. Ed. 2d 297, 302 (1991) (holding that it was “objectively reasonable for the officer to believe that the scope of the suspect’s consent permitted him to open a particular container within [an] automobile”)). “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the partic *309 ular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 , 60 L. Ed. 2d 447, 481 (1979). In determining whether a search is reasonable under the Fourth Amendment, a court must balance “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.” Wolfish, 441 U.S. at 559 , 60 L. Ed. 2d at 481 . “[S]earches akin to strip searches can be justified in public places if limited in scope and required by unusual circumstances.” State v. Smith, 118 N.C. App. 106, 117 , 454 S.E.2d 680, 687 (1995) (Walker; J., concurring in part and dissenting in part) (emphasizing that the availability of “less intrusive means does not automatically transform an otherwise reasonable search into a Fourth Amendment violation”), rev’d per curiam per dissent, 342 N.C. 407 , 464 S.E.2d 45 (1995), cert. denied, 517 U.S. 1189 , 134 L. Ed. 2d 779 (1996).

Furthermore, “[t]he scope of a search is generally defined by its expressed object.” Jimeno, 500 U.S. at 251 , 114 L. Ed. 2d at 303 ; see also, United States v. Zapata, 180 F.3d 1237, 1243 (1999) (stating that “[t]o ascertain what conduct is within the ‘bounds of reasonableness,’ we must consider what the parties knew to be the object (or objects) of the search”). Because “[d]ealers frequently hide drugs near their genitals[,]” the reasonable person would understand that “a request to conduct a body search for drugs reasonably includes a request to conduct some search of [the genital] area.” Rodney, 956 F.2d at 297-98 (emphasis added). The court in Rodney explained the meaning of “some search”:

Although Jimeno states the test “generally” used to determine the scope of a consent to search, we doubt that the Supreme Court would have us apply that test unflinchingly in the context of body searches. At some point, we suspect, a body search would become so intrusive that we would not infer consent to it from a generalized consent, regardless of the stated object of the search. For example, although drugs can be hidden virtually anywhere on or in one’s person, a generalized consent to a body search for drugs surely does not validate everything up to and including a search of body cavities.

Rodney, 956 F.2d at 298 .

In Rodney , the Court nonetheless found the police did not exceed the scope of the search allowed by the suspect’s generalized consent in the following circumstances:

*310 [The policeman] asked Rodney whether he was carrying drugs on his person. After Rodney again said no, [the policeman] requested permission to conduct a body search. Rodney said “sure” and raised his arms above his head. [The policeman] placed his hands on Rodney’s ankles and, in one sweeping motion, ran them up the inside of Rodney’s legs. As he passed over the crotch area, [the policeman] felt small, rock-like objects. Rodney exclaimed: “That’s me!” Detecting otherwise, [the policeman] placed Rodney under arrest.

Rodney, 956 F.2d at 296 . The Court in Rodney concluded that the search undertaken “was not unusually intrusive, at least relative to body searches generally. It involved a continuous sweeping motion over Rodney’s outer garments, including the trousers covering his crotch area. In this respect, the search was no more invasive than the typical pat-down frisk for weapons described by the Supreme Court over two decades ago[.]” Rodney, 956 F.2d at 298 (D.C. Cir. 1992). The Court in Rodney described this search as “the sort of careful frisk described in Terry v. Ohio[.]” Rodney, 956 F.2d at 296 (quoting Terry, 392 U.S. at 17, 20 L. Ed. 2d at 903 n.13 (“The officer must feel with sensitive fingers every portion of the [defendant’s] body. A thorough search must be made of the [defendant’s] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.” (citation omitted)). Ultimately, the Court in Rodney concluded that the consent search of the suspect was objectively reasonable. Rodney, 956 F.2d at 298 .

In the instant case, this Court must decide whether the police exceeded the scope of a suspect’s generalized consent with regard to a search of his body for drugs by pulling back the suspect’s pants for a brief moment and visually examining his genital region. Officer Correa was familiar with the practice of drug dealers hiding drugs near their genitals. He had “made several arrests in the past after finding drugs concealed in a suspect’s groin area.” After asking defendant if he had any drugs or weapons on his person, Officer Correa asked whether he could search defendant’s body, and defendant consented. In the trial court’s conclusions of law, the court stated that because of the officer’s questions, defendant was on notice as to what Officer Correa would be looking for during the search. 1 Officer Correa “asked him [for consent to search] twice. The first time I asked for *311 consent to pat down and search. The second time I asked him if he had anything on him that I needed to know about.” Officer Correa tes-tifed that he asked, “do you mind if I search[,] and he said no, go ahead.” Officer Correa did not ask defendant to remove his clothes, nor did Officer Correa remove defendant’s clothes. Neither were defendant’s genitals, nor any private part of defendant’s body, exposed to anyone except police officers of the same sex as defendant, and defendant’s genitals were only exposed to Officer Correa and Officer Herrera for a fleeting moment. The search itself was limited and focused on hidden contraband in the groin area and took place in a private apartment complex parking lot during the early morning hours, with no opportunity for any onlookers. See Smith, 118 N.C. App. at 117 , 454 S.E.2d at 687 ; United States v. Bazy, 1994 WL 539300 (D. Kan. 1994) (holding that a trooper’s search of defendant’s underwear to remove crack cocaine was reasonable because defendant was not required to remove clothing or submit to visual body cavity search, and because public view was blocked by defendant’s clothes, troopers and patrol cars). The attendant circumstances, including the anonymous tip that defendant was a drug dealer, the time of night, the high drug area, the large amount of cash found on defendant, and the suspicious actions of defendant and the driver, considered in the aggregate, are sufficient to support the conclusion that the search conducted by Officers Correa and Herrera was objectively reasonable.

When balancing “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,” I find the search of defendant to be objectively reasonable and within the scope of defendant’s consent. Wolfish, 441 U.S. at 559 , 60 L. Ed. 2d at 481 . For these reasons, I would affirm the trial court’s denial of defendant’s motion to suppress evidence.

. See Hensley v. Industrial Maint. Overflow, 166 N.C. App. 413 , 419 n.1, 601 S.E.2d 893 ; 898 n.1 (2004) (stating that “[findings of fact that are mislabeled conclusions of law are, nonetheless, factual findings.”); citing Gainey v. N.C. Dept. of Justice, 121 N.C. App. 253 , 257 n.1, 465 S.E.2d 36 , 40 n.1 (1996)).