STATE OF NORTH CAROLINA
v
.
Guilford County
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.
JACKSON, Judge.
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.
No Error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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