State v. Stone

We examine today whether a passenger in a vehicle who gave consent to a generic search for weapons or drugs during a routine *51traffic stop subjected himself to an officer’s flashlight search inside his underwear. Under the circumstances here, we conclude he did not. We hold that this intrusion violated the defendant’s rights under the Fourth Amendment to the United States Constitution, which protects all persons from unreasonable searches and seizures, and entitles defendant Stone to a new trial;

Defendant was indicted for possession with intent to sell or deliver cocaine. Before trial, he moved to suppress the cocaine seized on three grounds: (1) that the original stop was unlawful, (2) that the officer’s search exceeded the scope of his consent, and (3) that the officer seized the pill bottle without probable cause.

The only issue before us is the one addressed by the dissent in the Court of Appeals, to wit, whether the search exceeded the scope of defendant’s consent. “When an appeal is taken pursuant to N.C.G.S. [§] 7A-30(2), the scope of this Court’s review is properly limited to the issue upon which the dissent in the Court of Appeals diverges from the opinion of the majority.” State v. Hooper, 318 N.C. 680, 681-82, 351 S.E.2d 286, 287 (1987) (citing N.C. R. App. P. 16(b)); Blumenthal v. Lynch, 315 N.C. 571, 577-78, 340 S.E.2d 358, 361 (1986)).

In denying defendant’s motion to suppress, the trial court made the following findings of fact, which have not been challenged on appeal:

1. At approximately 3:30 a.m. on October 7, 2002, CharlotteMecklenburg Police Officer R.E. Correa (“Correa”) was on routine patrol in the Nations Ford area of Charlotte, North Carolina.

2. 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, Correa noticed a burgundy Oldsmobile leaving the Villager Lodge motel. Correa recalled seeing the same vehicle in and around this particular motel on prior occasions. Correa has made numerous drug and prostitution arrests in and around the Villager Lodge motel.

4. Correa began following the Oldsmobile. The Oldsmobile accelerated and turned right onto Farmhurst Drive. Correa estimated that the car was traveling at 50 mph, approximately 15 *52mph over the speed limit. Correa, however, did not activate his blue lights or make any effort to stop the car.

5. The Oldsmobile pulled into the parking lot of an apartment complex on Farmhurst Drive. Correa pulled in directly behind the car and shone his spot light on the vehicle.

6. Correa saw two people in the car. 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, the Defendant) was moving from side to side.

10. Correa then turned his attention to the Defendant, who was not wearing a seatbelt. Correa recognized the Defendant, having previously received an anonymous tip that Defendant was a drug dealer. He asked Defendant for identification, but he could not produce one.

11. Correa asked Defendant to step to the back of the vehicle. Defendant complied. Correa asked Defendant if he had any drugs or weapons on his person. Defendant said no, which prompted 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, Correa found $552.00 in cash in the lower left pocket of Defendant’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, Correa again asked Defendant if he had anything on him. Once again, Defendant denied having drugs or weapons and authorized Correa to continue the search. By this time, Officer Gerson Herrera (“Herrera”) had arrived as the backup officer.

14. 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.

*53The trial court thereupon concluded that although the search was “intrusive,” it was reasonable under the circumstances. Defendant was convicted as charged, and he appealed both the order denying his motion to suppress and the judgment.

On 5 September 2006, the Court of Appeals held that the trial court erred by denying defendant’s motion to suppress and ordered a new trial. The panel held unanimously that the officer had grounds to stop the vehicle in which defendant was riding, and that asking defendant to step out of the vehicle was lawful. A majority held that the flashlight search inside defendant’s pants exceeded the scope of defendant’s consent. The dissent concluded that because a reasonable person would expect a search under these circumstances to include actions like those taken by this officer, the search was not beyond the scope of defendant’s consent.

On appeal, the State maintains that the dissent correctly determined that the search did not exceed the scope of the consent. The defendant argues that it did. We agree.

The Fourth Amendment protects citizens from unreasonable searches and seizures, but permits searches to which a suspect consents. See Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585 (1967) (stating that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions” (footnote call number omitted)). This Court has also held that by waiver and consent to search “free from coercion, duress or fraud, and not given merely to avoid resistance,” a defendant relinquishes the protection of the Fourth Amendment, against an unlawful search and seizure. State v. Little, 270 N.C. 234, 239, 154 S.E.2d 61, 65 (1967) (citations omitted).

“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, 250-51, 114 L. Ed. 2d 297, 302 (1991) (citations omitted). The United States Supreme Court has recently affirmed that passengers searched during traffic stops may challenge the constitutionality of those searches. Brendlin v. California,-U.S.-,-, 127 S. Ct. 2400, 2406, 168 L. Ed. 2d 132, 139 (2007) (noting that the Court has never indicated “any distinction between driver and passenger that *54would affect the Fourth Amendment analysis” of standing to challenge a search of one’s person).

To determine whether defendant’s general consent to be searched for weapons or drugs encompassed having his pants and underwear pulled away from his body so that his genital area could be examined with a flashlight, we consider whether a reasonable person would have understood his consent to include such an examination. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302.

This Court has not written an opinion specifically addressing a similar consent search, but it has adopted a dissent from the Court of Appeals in a factually similar case involving a search based on probable cause. State v. Smith, 342 N.C. 407, 407, 464 S.E.2d 45, 46 (1995). In State v. Smith, the Court of Appeals granted a new trial, holding a search based on probable cause and exigent circumstances unreasonable because the scope and manner of the search were “intolerable.” 118 N.C. App. 106, 116, 454 S.E.2d 680, 686, rev’d per curiam on other grounds, 342 N.C. 407, 464 S.E.2d 45 (1995), cert. denied, 517 U.S. 1189, 134 L. Ed. 2d 779 (1996). Although the defendant in Smith did not give consent, the officers had probable cause and exigent circumstances, as well as a specific tip from an informant that defendant “would have the cocaine concealed in his crotch or under his crotch.” Id. at 112-13, 454 S.E.2d at 684-85. This Court reversed the Court of Appeals for the reasons stated in the dissenting opinion, holding that the scope of the search was not unreasonable. Smith, 342 N.C. at 407, 464 S.E.2d at 46. We conclude that Smith is inápposite in our evaluation of this search based on consent.

Several cases from other jurisdictions, while not binding upon this Court, have discussed the reasonableness of similar consent searches. “A suspect’s consent can impose limits on the scope of a search in the saíne way as do the specifications of a warrant.” United States v. Milian-Rodriguez, 759 F.2d 1558, 1563 (11th Cir.) (citation omitted), cert. denied, 474 U.S. 845, 88 L. Ed. 2d 112 (1985). Even when an individual gives a general consent without express limitations, the scope of a permissible search has limits. It is constrained by the bounds of reasonableness: what the reasonable person would expect. United States v. Blake, 888 F.2d 795, 800-01 (11th Cir. 1989). In Blake, the court affirmed the trial court’s ruling that “the consent given by the defendants allowing the officers to search their ‘persons’ could not, under the circumstances, be construed as authorization for the officers to touch their genitals in the middle of a public area.” Id. at 800. The court went on to explain that “it cannot be said that a rea*55sonable individual would understand that a search of one’s person •would entail an officer touching his or her genitals.” Id. at 800-01. See also Justice v. City of Peachtree, 961 F.2d 188, 191 (11th Cir. 1992) (citing Doe v. Calumet City, Ill., 754 F. Supp. 1211, 1218 (N.D. Ill. 1990) (“[D]eeply imbedded in our culture ... is the belief that people have a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have their ‘private’ parts observed or touched by others.” (footnote call number omitted)).

The United States Supreme Court has said that the “constant element in assessing Fourth Amendment reasonableness in consent cases is the great significance given to widely shared social expectations.” Georgia v. Randolph, 547 U.S. 103, 111, 164 L. Ed. 2d 208, 220 (2006). The search of these intimate areas would surely violate our widely shared social expectation; these areas are referred to as “private parts” for obvious reasons.

Although the individual’s subjective understanding of the scope of his or her general consent to search is not controlling, we note that defendant evidently did not expect this search by flashlight to occur. Defendant said “Whoa” when the officer pulled out his waistband to look, and the court found as fact that defendant objected when the officer “pulled Defendant’s sweatpants away from his body and trained his flashlight on Defendant’s groin area.” His subjective response, while not dispositive of the reasonableness of the search, is an indication that it exceeded his expectations.

The State and the dissent cite United States v. Rodney, 956 F.2d 295, 298 (D.C. Cir. 1992), for the proposition that, in a search for drugs, a suspect could reasonably expect some search of his genital area, such as “a continuous sweeping motion over [the suspect’s] outer garments.” The State and the dissent contend that such touching is no less intrusive than the flashlight-illuminated visual search conducted here.

In Jimeno, the United States Supreme Court observed that “the scope of a search is generally defined by its expressed object.” 500 U.S. at 251, 114 L. Ed. 2d at 303 (citing United States v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572 (1982)). The following year in Rodney, the D.C. Circuit noted that drug dealers frequently hide contraband in the genital area, and thus, a “request to conduct a body search for drugs reasonably includes a request to conduct some search of that area.” 956 F.2d at 298. The Rodney court specifically held “only that [the defendant’s] generalized consent authorized the kind of ‘traditional frisk *56search’ undertaken here.” Id. The court noted that it “expressfed] no view on questions involving putatively consensual searches of a more intrusive nature,” such as a search involving “direct ‘frontal touching’ ” of a suspect’s genitals as disapproved in Blake. Id. However, Rodney, a federal case, is not binding on this Court, and we have never addressed the issue of whether a deliberate touching of a suspect’s genitals through clothing exceeds the scope of a permissive search. Accordingly, we are considering for the first time the question of whether the scope of a general consent search necessarily includes consent for the officer to move clothing in order to observe directly the genitals of a clothed suspect.

We conclude here that a reasonable person in defendant’s circumstances would not have understood that his general consent to search included allowing the law enforcement officer to pull his pants and underwear away from his body and shine a flashlight on his genitals. See Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302. Although these events occurred at 3:30 a.m., the search occurred in the parking lot of an apartment complex, as opposed to a secluded area or police station. Both Officers Correa and Herrera were present during the search. The record does not indicate that the officers asked defendant to step behind a car door, used their bodies to screen defendant from public view, or took other action to shield defendant during the search, as the officers did in Smith. 118 N.C. App. at 109, 454 S.E.2d at 682. Nor did they ask defendant to clarify the scope of his consent. Officer Correa testified that he was “not really expecting to find anything, honestly” during his search of defendant, unlike in Smith where the officers had specific information that cocaine was hidden in the defendant’s crotch. Id. at 112-13, 454 S.E.2d at 684.

We conclude defendant’s general consent to search did not authorize the officer to employ the very intrusive measures undertaken here. In concluding otherwise and denying defendant’s motion to suppress, the trial court focused on reasonableness from the officer’s perspective, rather than on the reasonable expectations of the person in defendant’s circumstances. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302 (“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?”).

Because today’s decision is necessarily predicated on its facts, see United States v. Drayton, 536 U.S. 194, 201,153 L. Ed. 2d 242, 252 (2002) (“per se rules are inappropriate in the Fourth Amendment con*57text,” as “the proper inquiry necessitates a consideration of ‘all the circumstances surrounding the encounter.’ ”) (quoting Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 402 (1991)), we observe that different actions by the officer could have led to a different result. We conclude that the defendant, acting as a “reasonable person,” would not have understood that his general consent to a search permitted the officer to pull his pants away and look into his genital area with a flashlight. Accordingly, the Court of Appeals correctly decided that the trial court erred by denying defendant’s motion to suppress and correctly held that, as a result, defendant should receive a new trial.

AFFIRMED.