State v. Pittman
State v. Pittman
Opinion of the Court
The facts, as determined by the lower court, are that on 19 April 1991, Officers J.M. Ferrell and J.A. Gunn were at the Amtrak railroad station in High Point patrolling as part of a drug interdiction operation. At 1:30 a.m., the officers observed the defendant,
After Officer Ferrell ended his conversation with the man, a Honda automobile pulled up to the train station, and the man put his bag in the trunk. The man then motioned to the defendant to approach the car and he placed her bag in the trunk and the two of them got in the car and left. Officers Gunn and Ferrell compared the information they had gathered from the defendant and the man, noting particularly that both said they were travelling alone and did not know the other. When the officers observed the two leaving in the same car, their suspicions were aroused. Officers Gunn and Ferrell followed the car and had a uniformed police car stop the Honda. Before speaking to the defendant a second time, a call was made for a female officer to go to the scene. Officer Gunn asked the defendant to get out of the car and asked her why she had misrepresented that she was travelling alone as well as several other questions. The officers requested to search the defendant, and she refused. The female officer, Sherry Byrum, had arrived and was instructed to conduct a search of defendant’s person. Because of the hour, defendant was taken to the police station where the search was conducted in the ladies public rest room. The search uncovered two bags of cocaine:
The issue on appeal is whether the lower court committed prejudicial error by denying the defendant’s motion to suppress evidence seized in violation of the defendant’s rights as guaranteed by the United States Constitution, the North Carolina Constitution, and N.C. Gen. Stat. § 15A-974. Defendant makes three contentions in support of her appeal.
The second contention defendant makes is that the stop of the car in which defendant was a passenger was an arrest without probable cause. In support, defendant asserts that because she had already been questioned once, there was no other investigative work to be done; therefore, the second stop was an arrest. The State asserts that defendant lacks standing to challenge the stop of the vehicle. However, the State is precluded from raising the argument of lack of standing on appeal because it failed to raise lack of standing to defeat the Fourth Amendment claim at the suppression hearing in the lower court. State v. Cooke, 306 N.C. 132, 138, 291 S.E.2d 618, 621-22 (1982).
This Court has found that “[i]t is well-settled law that a police officer may make a brief investigative stop of a vehicle if justified by specific, articulable facts giving rise to reasonable suspicion of illegal activity.” State v. Reid, 104 N.C. App. 334, 342, 410 S.E.2d 67, 71 (1991), disc. review allowed, 331 N.C. 121, 414 S.E.2d 765 (1992). Reasonable suspicion is determined by the totality of the
So long as a stop is investigative, the police only need to have a reasonable suspicion. Reid, supra. However, if the police conduct a full search of an individual without a warrant or consent, they must have probable cause, and there must be exigent circumstances. State v. Mills, 104 N.C. App. 724, 730, 411 S.E.2d 193, 196 (1991). Whether there were exigent circumstances need not be considered because probable cause to search did not exist. The United States Supreme Court compared the difference between investigative stops and situations which required probable cause in Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229 (1983).
Detentions may be “investigative” yet violative of the Fourth Amendment absent probable cause. In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest.
Id. at 499, 75 L. Ed. 2d at 237.
The State asserts that the police had probable cause to search the defendant based on information gathered from the questioning of the defendant during the second stop. However, Officer Ferrell called for a female officer specifically to conduct a search of the defendant, and he did so before the second stop and further questioning of the defendant began. When the decision to search the defendant was made, the police were working from the limited information gathered from the first stop, and at that point there was no probable cause. Assuming arguendo that the decision to search was made subsequent to the second stop, we also find insufficient evidence of probable cause to permit a search of the defendant’s person.
Lastly, defendant contends that three of the lower court’s findings of fact are not supported by the record. Defendant failed to properly preserve for review by this Court these remaining assignments of error. N.C.R. App. P. 10(b) (1975).
For the reasons stated above, we conclude that the search of the defendant’s person was conducted in violation of the right
Reversed.
Concurring Opinion
concurring in the result.
I concur with the majority on the disposition of the issues concerning the two investigatory stops. As to the issue of the search of the defendant, however, I concur only in the result. The majority cites no authority, and indeed my research can disclose no case law, for the proposition, implied by the majority, that, for the purpose of determining the existence of probable cause for a warrantless search, a search begins when law enforcement officers make the decision to search. The proper time to determine whether there is probable cause to justify a warrantless search is immediately before law enforcement officers begin the actual search because, at any point prior to that, the officers may abandon the search, and the target of the aborted search would have suffered no constitutional harm. To the extent that the majority opinion implies that we measure probable cause at an earlier point in time, I disavow it.
I believe that the officers in this case in actuality arrested defendant without probable cause immediately prior to searching her. I would therefore find the search in violation of defendant’s Fourth Amendment right and agree with the majority that the trial court should have granted defendant’s motion to suppress.
Reference
- Full Case Name
- State of North Carolina v. Mary Alice Pittman
- Cited By
- 11 cases
- Status
- Published