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The trial court erred in a trafficking in cocaine, conspiracy, possession with intent to sell
and deliver cocaine, and possession of drug paraphernalia case by denying defendant's motion to
suppress evidence seized pursuant to a search of his vehicle where a plastic wall panel was
removed by a law enforcement officer from the interior of defendant's van, thereby facilitating
discovery of cocaine, because: (1) applying the test of objective reasonableness, neither the
officer nor defendant could reasonably have interpreted defendant's general statement of consent
to include the intentional infliction of damage to the vehicle; (2) although an individual
consenting to a vehicle search should expect that search to be thorough, he need not anticipate
that the search will involve the destruction of his vehicle, its parts or contents; (3) unless an
individual specifically consents to police conduct that exceeds the reasonable bounds of a general
statement of consent, that portion of the search is impermissible; (4) the trial court's findings do
not address, nor does the testimony of the officer reveal, the presence of probable cause
necessary to extend the scope of the instant search beyond the limitation of reasonableness; (5)
save for the search itself, no evidence nor any finding of fact suggested the officer suspected the
van contained contraband or that defendant was involved in any criminal conduct; (6) taking the
presence of inappropriate or out of place glue as the totality of the circumstances, that solitary
factor standing alone was wholly inadequate and insufficient to establish probable cause
justifying search beyond the reasonable scope of defendant's consent; and (7) the alterations to
the vehicle must be such that an officer may reasonably believe a crime is being committed, and
the officer must go beyond the inarticulable hunch that all customized vehicles contain hidden
compartments and point to specific factors which justify the objectively reasonable conclusion
that particular alterations indicate a hidden compartment which may contain contraband.
Attorney General Roy Cooper, by Assistant Attorney General
Martin T. McCracken, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for defendant-appellant.
JOHN, Judge.
Defendant appeals the trial court's denial of his motion tosuppress evidence seized pursuant to a search of his motor vehicle.
Defendant argues, inter alia, the search was unconstitutional
because it exceeded the reasonable scope of any valid consent and
therefore constituted a warrantless search without probable cause.
We agree
On 13 August 2003, Detective Steven Ray Lovin (Lovin) of the
Robeson County Sheriff's Department stopped defendant's Plymouth
Voyager van because the license plate was partially obscured.
Detaining defendant in his patrol vehicle, Lovin wrote a warning
ticket, returned defendant's license and registration, and
indicated defendant was free to leave. Notwithstanding, Lovin then
inquired if he could ask defendant “a few questions,” whereupon
defendant resumed his seat in the patrol vehicle. Lovin described
“a lot of problems on Interstate 95, people transporting illegal
guns and drugs, large sums of money exceeding $10,000, drugs like
cocaine, marijuana, things like that.” Lovin then asked defendant
if he had “anything like that in his vehicle.” Defendant replied
“no” several times. At that point Lovin asked if it was “alright
with [defendant] if we search the van? ” Lovin testified defendant
responded “yeah.” Lovin and Deputy Sheriff James Hunt (Hunt) then
proceeded to search the vehicle. The officers discovered
approximately ten kilograms of cocaine as a result of the search.
In his testimony, Lovin acknowledged the cocaine was “not in
plain view,” and described the process of locating it as follows:
On the inside wall on the passenger's side
where the door slides open, when that door
slides open, there is a wheel well, the hump,
and there is the whole entire wall. There isa piece of rubber that comes down that wall.
It's glued there. It shouldn't be. If you
pull that glue off, or if you pull that piece
of rubber off, there is a piece of plastic for
the inside wall. If you pull that piece of
plastic back, you can look down inside there
and see into the wall, the actual outer wall
and the inner wall of the vehicle. There's
two. If you're sitting in the back seat and
look, and here is the wall, the plastic gray
that you would normally see. Okay? Between
this wall and the outer wall, which is the
metal part of the vehicle, is where the kilos
were at on that one side, as well as the
passenger's side.
Lovin further indicated he was unable to say whether Hunt used a
tool or whether he “was able to pull things apart with his hands to
see inside the door.”
Prior to trial, defendant moved to suppress the evidence.
Following a hearing, the motion was denied.
Defendant subsequently
pled guilty pursuant to a plea agreement to
two counts of
trafficking in cocaine, one count of conspiracy, one count of
possession with intent to sell and deliver cocaine, and one count
of possession of drug paraphernalia. The convictions were
consolidated for judgment and defendant was sentenced to a 175 to
219 months active term of imprisonment.
Pursuant to N.C.G.S. §
15A-919(b) (1979), defendant expressly reserved his right to appeal
the denial of his motion to suppress.
“The scope of review on appeal of the denial of a defendant's
motion to suppress is strictly limited to determining whether the
trial court's findings of fact are supported by competent evidence,
in which case they are binding on appeal, and in turn, whether
those findings support the trial court's conclusions of law.” State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893
(1993)(citations omitted).
“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), appeal dismissed
and disc. review denied, 326 N.C. 366, 389 S.E.2d 809 (1990); State
v. Belk, 268 N.C. 320, 322, 150 S.E.2d 481, 483 (1966)). “The
scope of the search can be no broader than the scope of the
consent.” Id. (citing United States v. Ross, 456 U.S. 798, 821, 72
L. Ed. 2d 572, 591 (1982)). In the case sub judice, the trial
court concluded the search of defendant's vehicle was consensual,
but made no determination as to whether that consent was limited.
Assuming without deciding that the trial court's characterization
of the search as consensual was proper, we first discuss
defendant's contention that the search at issue exceeded the
reasonable scope of defendant's consent.
“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 . . . .” 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 haveunderstood by the exchange between the officer and the suspect?”
Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302
(1991)
(citations omitted);
see also United States v. Urbina, 431
F.3d 305, 310 (8th Cir. 2005)
(“We measure the scope of consent
under the Fourth Amendment using a standard of objective
reasonableness, considering what an objectively reasonable person
would have understood the consent to include.”)
(citing United
States v. Fleck, 413 F.3d 883, 892 (8th Cir. 2005)).
In the instant case, a plastic wall panel was removed by a law
enforcement officer from the interior of defendant's van, thereby
facilitating discovery of the cocaine. Applying the test of
“objective reasonableness,” Florida v. Jimeno, 500 U.S. at 251, 114
L. Ed. 2d at 302, to this circumstance, we hold neither Lovin nor
defendant could reasonably
have interpreted defendant's general
statement of consent “to include the intentional infliction of
damage to the vehicle. . . .” Strickland, 902 F.2d at 941
-42.
“Although an individual consenting to a vehicle search should
expect that search to be thorough, he need not anticipate that the
search will involve the destruction of his vehicle, its parts or
contents.” Id. at 942; see also United States v. Garcia, 897 F.2d
1413, 1419-20 (7th Cir. 1990)(opening of door panels during search
“is inherently invasive” and extends beyond scope of general
consent to search); United States v. Gastellum, 927 F.Supp. 1386,
1390 (D. Colo. 1996)(searching panels of trunk, removing interior
panels that had been fastened with screws, pulling up carpet, and
removing seats exceeded permissible scope of consent); UnitedStates v. Orrego-Fernandez, 78 F.3d 1497, 1505-06 (10th Cir.
1996)(search did not exceed scope of consent where police searched
no hidden compartments); State v. Swanson, 172 Ariz. 579, 583, 838
P.2d 1340, 1344 (1992), cert. denied, 507 U.S. 1006, 123 L. Ed. 2d
270 (1993)(even “unqualified consent to search a vehicle does not
give law enforcement officer's [sic] license, absent some further
basis, to start ripping or tearing a car apart. This would, in the
Court's mind, apply to removing door panels.”).
Moreover,
“[u]nless an individual specifically consents to police conduct
that exceeds the reasonable bounds of a general statement of
consent, that portion of the search is impermissible.” Strickland,
902 F.2d at 9
42 (reasonable person would not understand general
consent to search automobile as authorizing slashing of spare tire
and investigating its contents).
Notwithstanding,
[i]t is well settled that a vehicle may be
searched without either permission or a
warrant if there is probable cause to believe
that it contains contraband or other evidence
which is subject to seizure under law and
exigent circumstances necessitate the search
or seizure. A vehicle search conducted
pursuant to probable cause may include any
item and compartment in the car that might
contain the object of the search. Moreover,
such a search may include some injury to the
vehicle or the items within the vehicle, if
the damage is reasonably necessary to gain
access to a specific location where the
officers have probable cause to believe that
the object of their search is located.
Id. (citations omitted); see also State v. Poczontek, 90 N.C. App.
455, 457, 368 S.E.2d 659, 660-61 (1988)
(“[a]n officer may search an
automobile without a warrant if he has probable cause to believethe vehicle contains contraband, and he has probable cause if based
upon the totality of the circumstances known to him 'he believes
there is a “fair probability that contraband or evidence of a crime
will be found” therein.'”)(citations omitted).
Here, however, the trial court's findings do not address, nor
does the testimony of Lovin reveal, the presence of probable cause
necessary to extend the scope of the instant search beyond the
limitation of reasonableness.
The trial court simply found that,
“upon inspection of the van, glue was found on one side of the
panels which the officer determined was inappropriate or out of
place.” Lovin's testimony indicated defendant was cooperative and
that his appearance seemed normal.
Save for the search itself, no
evidence nor any finding of fact suggested Lovin suspected the van
contained contraband or that defendant was involved in any criminal
conduct. Taking the presence of “inappropriate” or “out of place”
glue as the “totality of the circumstances,” see Poczontek, 90 N.C.
App. at 457, 368 S.E.2d at 661, presented herein, we believe that
solitary factor, standing alone, to be wholly inadequate and
insufficient to establish probable cause justifying search beyond
the reasonable scope of defendant's consent. See Orrego-Fernandez,
78 F.3d at 1504-05 (“Alterations to vehicles do not automatically
create reasonable suspicion. The alterations to the vehicle must
be such that a trooper may reasonably believe a crime is being
committed. The trooper must go beyond the inarticulable hunch that
all customized vehicles contain hidden compartments and point to
specific factors which justify the objectively reasonableconclusion that particular alterations indicate a hidden
compartment which may contain contraband.”).
Accordingly,
defendant's motion to suppress should have been granted.
Because we conclude on the basis of the foregoing discussion
that the trial court erred in denying the motion to suppress, we do
not address defendant's remaining assignments of error. The trial
court's denial of defendant's motion to suppress is reversed, and
this matter is remanded to the trial court for such further
proceedings as may be consistent with our opinion herein.
Reversed and remanded.
Judges BRYANT and CALABRIA concur.
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