Appeal by defendant from judgment entered 26 July 2006 by
Judge W. Osmond Smith, III, in Alamance County Superior Court.
Heard in the Court of Appeals 24 May 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Ashby T. Ray, for the State.
Law Offices of J. Darren Byers, P.A. by J. Darren Byers for
Defendant appeals from the judgment entered following his
entry of guilty pleas to four felony drug offenses and one
misdemeanor. In his guilty plea, defendant preserved the right to
appeal the order entered by Judge Narley L. Cashwell denying his
motion to suppress evidence seized during a search of the vehicle
in which he was a passenger, and it is that order which is the sole
subject of our review.
Defendant contends that the trial court erred when it denied
his motion to suppress. He argues that the motion to suppress
should have been granted because his Fourth Amendment rights wereviolated by: (1) the initial stop and search of the vehicle in
which he was traveling, and (2) the search of his personal luggage
which was inside the vehicle. We conclude that defendant lacked
standing to assert any Fourth Amendment rights in regard to the
stop and search of the vehicle. We further conclude that law
enforcement had probable cause to search his luggage. Accordingly,
the trial court's denial of his motion to suppress is affirmed.
On 1 August 2004, defendant and his alleged co-conspirator,
Joel Salazar Alvardo
(See footnote 1)
chartered a flight from Riverside, California
to Burlington, North Carolina. They traveled from the airport to
a nearby hotel in a van which was owned by the charter company and
driven by the pilot of the charter plane. En route to the hotel,
the van in which they were traveling was stopped for a traffic
violation. During the traffic stop, the van driver consented to a
search of the van and for a drug dog to enter the van. When the
drug dog alerted on a suitcase in the back of the van, Deputy Crain
of the Alamance County Sheriff's Department opened and searched the
suitcase. He discovered fifty one-kilogram packages of cocaine
inside the suitcase.
Defendant was indicted by the Alamance County Grand Jury on 16
August 2004 for: (1) possession of fifty kilograms of cocaine with
intent to manufacture, sell and deliver, (2) two counts of
trafficking in cocaine, (3) conspiring to traffic in cocaine, and(4) possession of drug paraphernalia. A superseding indictment was
issued on 27 June 2005, charging defendant with: (1) possession
with intent to sell and/or deliver cocaine, (2) trafficking by
transporting cocaine, (3) trafficking by possessing cocaine, (4)
conspiring to traffic in cocaine, and (5) possession of drug
paraphernalia. On or about 1 March 2006, defendant filed a motion
to suppress all evidence seized as a result of the traffic stop and
resulting search of the suitcase. Defendant's motion was heard at
the 6 March 2006 Criminal Session of Superior Court, Alamance
County, with Judge Narley L. Cashwell presiding. The motion to
suppress was denied by order filed on or about 21 June 2006.
Defendant pled guilty on 26 July 2006, reserving his right to
appeal the denial of his motion to suppress, pursuant to N.C. Gen.
Stat. § 15A-979.
(See footnote 2)
Defendant requests review of the order denying
his motion to suppress upon the appeal of the judgment of
II. Traffic Stop
A. Standard of Review
In any case or controversy before the North
Carolina courts, subject matter jurisdiction
exists only if a plaintiff has standing. If a
court finds at any stage of the proceedings
that it lacks jurisdiction over the subject
matter of a case, it must dismiss the case for
want of jurisdiction.
Sarda v. City/Cty. of Durham Bd. of Adjust.
, 156 N.C. App. 213,
215, 575 S.E.2d 829, 831 (2003) (internal citations and quotations
omitted). Questions of subject matter jurisdiction are reviewed de
. Harris v. Matthews
, 361 N.C. 265, 271, 643 S.E.2d 566, 570
Defendant contends that his Fourth Amendment rights were
violated when the car in which he was riding was stopped and
searched, and that the trial court therefore erred when it denied
his motion to suppress the evidence produced by that search.
A passenger in a vehicle which he does not own or have a
possessory interest in, and was not driving at the time of the
search, has no legitimate expectation of privacy in the vehicle,
and therefore has no standing to assert Fourth Amendment rights in
the vehicle. State v. Melvin
, 53 N.C. App. 421, 424, 281 S.E.2d
97, 100 (1981) (citing Rakas v. Illinois
, 439 U.S. 128, 58 L. Ed.
2d 387 (1978)), cert. denied
, 305 N.C. 762, 292 S.E.2d 473 (1982).
The record contains no evidence that defendant owned, had a
possessory interest in or was driving the vehicle which was
searched. Accordingly, we must dismiss this assignment of error
for lack of standing. Melvin
, 53 N.C. App. at 424, 281 S.E.2d at
III. Search of the Suitcase
Defendant next contends that the search of the suitcase by
Deputy Crain violated his Fourth Amendment rights.
A. Standard of review
[A] trial court's conclusion that a police officer had either
(See footnote 3)
or reasonable suspicion to detain or search a
defendant is reviewable de novo
. State v. Parker
, ___ N.C. App.
___, ___, 644 S.E.2d 235, 240 (2007).
It is elementary that personal luggage is protected by the
Fourth Amendment and that a search of such luggage requires a
warrant, unless the law allows for a warrantless search. U.S.
Const. amend. IV; California v. Acevedo
, 500 U.S. 565, 114 L. Ed.
2d 619 (1991). However, sniffing of the exterior of [luggage] by
a well trained and exceptionally skilled drug detection dog [does
not] amount to a 'search' within the meaning of the Fourth
Amendment. State v. McDaniels
, 103 N.C. App. 175, 189, 405 S.E.2d
358, 367 (1991)(citing United States v. Place
, 462 U.S. 696, 707,
77 L. Ed. 2d 110, 121 (1983)), aff'd
, 331 N.C. 112, 413 S.E.2d 799
(1992). Further, a positive alert for drugs by a specially trained
drug dog gives probable cause to search the area or item where the
dog alerts. United States v. Jeffus
, 22 F.3d 554, 557 (4th Cir.
1994). If a law enforcement officer has probable cause to believe
that the vehicle contains evidence of a crime, the officer may
conduct an immediate warrantless evidentiary search of the vehicle,including closed containers found therein. Parker
, ___ N.C. App.
at ___, 644 S.E.2d at 242.
As we concluded above, defendant had no standing to challenge
the entry of the drug dog into a vehicle which he did not own, have
a possessory interest in, or drive. Moreover, the driver of the
vehicle consented to a search of the vehicle and entry by the drug
dog. When the specially trained drug dog alerted on the suitcase,
Deputy Crain was given probable cause to search it. Because Deputy
Crain had probable cause, the search of the suitcase did not
violate defendant's Fourth Amendment rights. Accordingly, this
assignment of error is overruled.
We conclude that defendant did not have standing to challenge
the search of the vehicle in which he was merely a passenger.
Furthermore, we conclude that the search of the suitcase inside the
vehicle was conducted with probable cause. Accordingly, we hold
that defendant's Fourth Amendment rights were not violated, and the
trial court did not err when it denied defendant's motion to
suppress. Accordingly, the order denying defendant's motion to
suppress is affirmed.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).