STATE OF NORTH CAROLINA
Nos. 95 CRS 69712;
95 CRS 69713
RODNEY O'NEAL BURRELL
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Douglas A. Johnston, for the State.
J. Clark Fischer, for defendant-appellant.
On 23 October 1995, Sergeant William Grey (Sergeant Grey) was patrolling Interstate 85 in Guilford County. While completing an unrelated traffic stop, Sergeant Grey observed Rodney O'Neal Burrell (defendant) make eye contact with him while driving by erratically in a silver Nissan Sentra. Sergeant Grey pursued defendant, who weaved in and out of the travel lanes, until defendant pulled to the side of the road after Sergeant Grey activated his vehicle's blue lights.
Sergeant Grey advised defendant that he had stopped him because his driving wasn't very good. He believed that defendant was either impaired or fatigued. Although Sergeant Grey did not detect any impairing substance or odor of alcohol, he did noticethat defendant was nervous, fidgety, and looked like he'd been traveling for a while. Defendant explained his erratic driving resulted from trying to change a cassette tape. Defendant produced his driver's license and a rental contract for the car in the name of Tammy Davis (Davis). The rental contract described the vehicle as beige rather than silver, referenced both a Nissan and Toyota, and did not authorize additional drivers. Defendant explained that Davis had rented the car for him to travel from Charlotte to Vance County for traffic court, but he was mistaken as to the correct court date.
After several minutes of questioning, Sergeant Grey issued defendant a warning ticket for the erratic driving. As defendant was exiting the patrol car, Sergeant Grey asked him if he had any drugs or weapons in the Nissan. Defendant replied that he did not, and Sergeant Grey observed that defendant's hands were shaking. Sergeant Grey then asked defendant if he could search his car, and defendant replied, Go ahead. Sergeant Grey then obtained defendant's signature on a consent to search form, stating that defendant read and understood the search form.
Sergeant Grey asked defendant to stand approximately thirty feet in front of the car while he searched numerous areas of the car _ the passenger seat, driver's seat, back seat, glove compartment, console, and trunk. During this search, Sergeant Grey observed that the car had been driven approximately 1,400 miles and that a bottle of No-Doze, a bag of toiletries, and a change of clothes were inside the car. Sergeant Grey concluded, based uponthese factors, that defendant was on a longer trip than defendant initially had stated.
Sergeant Grey then proceeded to open the hood of the car to search the engine compartment. Specifically, Sergeant Grey looked for signs of disturbance of the thin layer of dust accumulated since the vehicle was last serviced or cleaned. After finding fresh fingerprints on the air filter compartment, Sergeant Grey opened the compartment. Sergeant Grey clarified that at no point in his attempt to access the air filter compartment did he damage or dismantle any portion of the compartment. During the search, Sergeant Grey found hidden behind the air filter a spherical-shaped package wrapped in black electrical tape and containing pelletized heroin. Defendant did not object to the scope of the search or express a desire to leave.
In his sole argument on appeal, defendant contends that the trial court erred by denying his motion to suppress because the search of the engine compartment exceeded the reasonable scope of defendant's consent. We disagree.
The standard of review of the denial of a motion to suppress is limited to determining whether the trial court's findings of fact are supported by competent evidence and, in turn, whether those findings support the court's conclusions of law. See State v. Pulliam, 139 N.C. App. 437, 439.40, 533 S.E.2d 280, 282 (2000). If supported by competent evidence, the trial court's factual findings are binding; however, the court's conclusions of law are reviewablede novo. See State v. Parker, 137 N.C. App. 590, 594, 530 S.E.2d 297, 300 (2000).
The general rule, pursuant to the Fourth Amendment of the United States Constitution and Article I, section 20 of the North Carolina Constitution, is that issuance of a warrant based upon probable cause is required for a valid search. See State v. Jones, 96 N.C. App. 389, 397, 386 S.E.2d 217, 222 (1989), appeal dismissed and disc. rev. denied, 326 N.C. 366, 389 S.E.2d 809 (1990). Although our courts recognize an exception to this rule when the search is based on the consent of the detainee[,] . . . [t]he scope of the search can be no broader than the scope of the consent. Id. (internal citations omitted). '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.' State v. Johnson, 177 N.C. App. 122, 125, 627 S.E.2d 488, 490 (alteration omitted) (quoting United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990)), vacated in part on other grounds, 360 N.C. 541, 634 S.E.2d 889 (2006). '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?' State v. Stone, __ N.C. App. __, __, 634 S.E.2d 244, 249 (2006) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302 (1991)).
In the instant case, defendant analogizes his situation to that presented in State v. Johnson, 177 N.C. App. 122, 627 S.E.2d488. In Johnson, the investigating officer initially noted no drugs in plain view, but located a trafficking quantity of narcotics after removing a plastic wall panel from the passenger side door. Johnson, 177 N.C. App. at 123.24, 627 S.E.2d at 489.90. In holding the officer's actions constitutionally invalid, this Court drew a distinction between consent to a general search of a vehicle and consent to an intrusive search, noting that '[a]lthough 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 125, 627 S.E.2d at 490.91 (quoting Strickland, 902 F.2d at 942); see, e.g., Strickland, 902 F.2d at 942 (slashing of spare tire and investigating its contents); United States v. Garcia, 897 F.2d 1413, 1419.20 (7th Cir. 1990) (opening of door panels); United States v. Gastellum, 927 F. Supp. 1386, 1390 (D. Colo. 1996) (removing interior panels that had been fastened with screws, pulling up carpet, and removing seats); State v. Swanson, 838 P.2d 1340, 1343.44 (Ariz. 1992) (ripping or tearing a car apart by removing door panels) , cert. denied, 507 U.S. 1006, 123 L. Ed. 2d 270 (1993).
The instant case, however, is distinguishable from Johnson. In Johnson, a plastic wall panel from the car door was removed by the officer facilitating the discovery of cocaine, and this Court held that the defendant's consent did not include the intentional destruction of or damage to his vehicle or its parts or contents. Johnson, 177 N.C. App. at 125, 627 S.E.2d at 490. Here, SergeantGrey testified that at no point in his attempt to access the air filter compartment did he damage or dismantle any portion of the air filter compartment.
Instead, the case sub judice is more analogous to cases that involved non-destructive actions and that permitted more extensive vehicle searches as being within the scope of consent. See, e.g., United States v. Zapata, 180 F.3d 1237, 1243 (11th Cir. 1999) (after the officer explained that he was concerned about interstate transportation of drugs, weapons, and large sums of money, the defendant's consent to search his vehicle authorized a search of the area behind the interior door panels); United States v. McSween, 53 F.3d 684, 686 (5th Cir. 1995) (consent to a search of a car properly included a search under the hood); United States v. Crain, 33 F.3d 480, 484.85 (5th Cir. 1994) (consent to a search of a car properly included a search beneath the seat); Strickland, 902 F.2d at 942 (consent to a search of a car for drugs authorized the officer to examine the spare tire in the trunk, to remove it to search around the spare tire compartment, and to roll the spare tire on the pavement); State v. Castellon, 151 N.C. App. 675, 679.81, 566 S.E.2d 696, 699.700 (2002) (after being given a warning ticket and while leaving the patrol car, the defendant's consent to search his vehicle included the trunk).
The 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 Zapata, 180 F.3d at 1243 (To ascertain what conduct is within the 'bounds of reasonableness,' we must consider what the parties knewto be the object (or objects) of the search.). Here, Sergeant Grey asked defendant if he had any drugs or weapons in the Nissan. Defendant replied that he did not. Sergeant Grey then asked defendant if he could search his car, and defendant told him that he could. As such, the expressed object of the search was the car, and defendant was on notice that Sergeant Grey would be looking for drugs or weapons in areas of the car that could reasonably have contained drugs or weapons. See Zapata, 180 F.3d at 1243 (Because both [the officer] and [the defendant] knew that the objects of [the officer's] search were drugs, guns, other weapons, and money _ due to [the officer's] concern over transportation of these items _ the search was within the scope of [the defendant's] consent as long as the area behind the interior door panel might reasonably have contained drugs, guns, other weapons, or money.). The trial court also made the following findings of fact, which were supported by competent evidence: (1) Sergeant Grey had training and experience in drug interdiction and was familiar with indicators of drug couriers and drug packaging; (2) there were inconsistencies with the rental contract for the car; (3) defendant appeared nervous; (4) defendant consented to the vehicle search and signed a written consent to search form; (5) defendant stood approximately thirty feet in front of the car during the search; (6) Sergeant Grey observed that the rental car had been driven over 1,400 miles; (7) Sergeant Grey located various items in the car that caused him to form the opinion that defendant had been on a longer trip than defendant previously represented to Sergeant Grey;and (8) Sergeant Grey, upon opening the hood, observed hand prints on the air filter cover, unlatched it, and discovered controlled substances. Additionally, at no time during the search did defendant request that Sergeant Grey stop the search of the vehicle. See State v. Aubin, 100 N.C. App. 628, 634, 397 S.E.2d 653, 657 (1990) (holding that the search did not exceed the scope of the consent when the defendant stood by the officer as the officer searched the car and lifted the bottom portion of the back seat up and out of its position). The trial court's findings thus support its conclusion that the search of defendant's vehicle was consensual.
We hold that there was sufficient evidence to support the trial court's findings of fact and that the trial court's findings support its conclusions of law. Accordingly, we find no error in the trial court's denial of defendant's motion to suppress.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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