Post by WaTcHeR on Sept 6, 2006 9:20:38 GMT -5
09.06.2006 - RALEIGH, N.C. - A man convicted of possessing cocaine after a Charlotte-Mecklenburg police officer found drugs by shining a light down his pants should get a new trial because the search was unreasonable, the state Court of Appeals ruled Tuesday.
The ruling in favor of Timothy Stone may serve as a warning to officers to more exactly describe the scope of their searches before they physically examine a suspect.
Officers spotted and recovered a pill bottle of crack cocaine between Stone's groin and testicles. A court sentenced him in March 2005 from roughly 10 1/2 years to 14 years in prison for drug and habitual felon convictions.
"We conclude that a reasonable person in defendant's circumstances would not have understood that he would be subjected to an inspection of his genitals," Judge Linda McGee wrote in the majority opinion that says a trial court judge erred by failing to suppress the evidence, the key element in the conviction.
Charlotte-Mecklenburg police Officer R.E. Correa said he spotted a speeding car with Stone inside leaving a hotel at 3:30 a.m. in October 2002. Correa pulled up next to the car when it stopped in a parking lot.
Stone was in the passenger seat, moving from side to side, according to the opinion. The driver appeared nervous and his hands were shaking. The officer had received an earlier tip that Stone was a drug dealer, according to the opinion.
Stone, who was wearing a jacket and a pair of drawstring sweat pants, stepped out of the car and told Correa he had no drugs or weapons. Correa asked if he could search Stone, who agreed.
Correa found more than $552 in cash in Stone's sweat pants pocket and asked again if Stone had any drugs. Stone again said no but allowed the search to continue.
With another officer now at the scene, Correa pulled the pants away from Stone's body and aimed his flashlight at his groin area.
Stone objected, but the two officers already had viewed the white cap of what appeared to be a pill bottle along his groin, the opinion said. The officers handcuffed Stone before Correa retrieved the bottle, which contained 26 grams of crack cocaine.
In court, Stone sought to have the evidence suppressed.
The officer "asked for the consent to search in the vaguest way possible," said Jarvis Edgerton IV, a Raleigh attorney representing Stone. "No reasonable person thinks that's what they're consenting to."
Mecklenburg Superior Court Judge Albert Diaz ruled that given the circumstances, the time of night and cash found on Stone, there was sufficient reason to suspect that Stone was hiding contraband, even under his clothes.
Stone appealed after his conviction, arguing the search exceed the scope of his consent. Correa didn't obtain specific approval to inspect his genitals, McGee ruled in saying a reasonable person would not have expected such an examination.
Although Correa had arrested drug suspects before with drugs in their groin area, he testified at the suppression hearing that he "was not really expecting to find anything, honestly," according to the opinion.
Judge Rick Elmore joined McGee in objecting to the search.
In the dissenting opinion, Judge Sanford Steelman wrote that Stone's clothes weren't removed such as in a strip search, which courts have earlier said requires probable cause or more specific consent from a suspect. Given the circumstances, including that the area where the car was stopped was known for a high incidence of drug offenses, the search "was objectively reasonable."
The state can appeal the ruling to the state Supreme Court. The state Attorney General's Office has not decided yet what it will do, spokeswoman Noelle Talley said.
www.myrtlebeachonline.com/mld/myrtlebeachonline/15445332.htm
The ruling in favor of Timothy Stone may serve as a warning to officers to more exactly describe the scope of their searches before they physically examine a suspect.
Officers spotted and recovered a pill bottle of crack cocaine between Stone's groin and testicles. A court sentenced him in March 2005 from roughly 10 1/2 years to 14 years in prison for drug and habitual felon convictions.
"We conclude that a reasonable person in defendant's circumstances would not have understood that he would be subjected to an inspection of his genitals," Judge Linda McGee wrote in the majority opinion that says a trial court judge erred by failing to suppress the evidence, the key element in the conviction.
Charlotte-Mecklenburg police Officer R.E. Correa said he spotted a speeding car with Stone inside leaving a hotel at 3:30 a.m. in October 2002. Correa pulled up next to the car when it stopped in a parking lot.
Stone was in the passenger seat, moving from side to side, according to the opinion. The driver appeared nervous and his hands were shaking. The officer had received an earlier tip that Stone was a drug dealer, according to the opinion.
Stone, who was wearing a jacket and a pair of drawstring sweat pants, stepped out of the car and told Correa he had no drugs or weapons. Correa asked if he could search Stone, who agreed.
Correa found more than $552 in cash in Stone's sweat pants pocket and asked again if Stone had any drugs. Stone again said no but allowed the search to continue.
With another officer now at the scene, Correa pulled the pants away from Stone's body and aimed his flashlight at his groin area.
Stone objected, but the two officers already had viewed the white cap of what appeared to be a pill bottle along his groin, the opinion said. The officers handcuffed Stone before Correa retrieved the bottle, which contained 26 grams of crack cocaine.
In court, Stone sought to have the evidence suppressed.
The officer "asked for the consent to search in the vaguest way possible," said Jarvis Edgerton IV, a Raleigh attorney representing Stone. "No reasonable person thinks that's what they're consenting to."
Mecklenburg Superior Court Judge Albert Diaz ruled that given the circumstances, the time of night and cash found on Stone, there was sufficient reason to suspect that Stone was hiding contraband, even under his clothes.
Stone appealed after his conviction, arguing the search exceed the scope of his consent. Correa didn't obtain specific approval to inspect his genitals, McGee ruled in saying a reasonable person would not have expected such an examination.
Although Correa had arrested drug suspects before with drugs in their groin area, he testified at the suppression hearing that he "was not really expecting to find anything, honestly," according to the opinion.
Judge Rick Elmore joined McGee in objecting to the search.
In the dissenting opinion, Judge Sanford Steelman wrote that Stone's clothes weren't removed such as in a strip search, which courts have earlier said requires probable cause or more specific consent from a suspect. Given the circumstances, including that the area where the car was stopped was known for a high incidence of drug offenses, the search "was objectively reasonable."
The state can appeal the ruling to the state Supreme Court. The state Attorney General's Office has not decided yet what it will do, spokeswoman Noelle Talley said.
www.myrtlebeachonline.com/mld/myrtlebeachonline/15445332.htm
