State v. Casey, 8226SC83

• Citation: 59 N.C.App. 99,296 S.E.2d 473
• Decision Date: 19 October 1982
• Docket Number: No. 8226SC83,8226SC83
• Parties: STATE of North Carolina v. Thomas Edward CASEY.
• Court: Court of Appeal of North Carolina (US)

Page 473

296 S.E.2d 473

59 N.C.App. 99

STATE of North Carolina v. Thomas Edward CASEY.

No. 8226SC83.

Court of Appeals of North Carolina.

Oct. 19, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. W. Dale Talbert, Raleigh, for the State.

B.R. Batts, Charlotte, for defendant-appellant.

JOHNSON, Judge.

I

Casey contends (1) that he was unlawfully seized in violation of his Fourth Amendment rights when he was taken to the officer's private office in the basement of the airport for an "investigatory detention" that was (a) not based upon probable cause and (b) neither brief nor based upon reasonable suspicion; (2) that his "voluntarily" accompanying the officer was not relevant; (3) that his consent to a search of the bags he carried was not voluntarily given but rather a result of the illegal stop and seizure and that; (4) the lack of probable cause to seize the bags and the implied threat that an illegal search would ensue regardless, precludes a finding that defendant's denial of ownership was a voluntary abandonment or that the disclaimer of ownership extinguished his reasonable expectation of privacy in the area searched. Hence, any evidence or consent obtained from defendant after his illegal detention was certainly the product of the "poison tree" (sic).

The trial court held a voir dire on the defendant's motion to suppress at the close of which it made findings of fact and conclusions of law. The findings of fact made by the court are conclusive on appeal if supported by competent evidence. State v. Williams, 303 N.C. 142, 277 S.E.2d 434 (1981); State v. Freeman, 295 N.C. 210, 244 S.E.2d 680 (1978).

The evidence presented by the State on voir dire tended to show that the defendant was observed meeting Donnie Joe Sport at the end of a concourse at Charlotte's Douglas Airport by Jack Davis, a SBI Agent and D.R. Harkey, a Charlotte Police Officer, who were on duty at Douglas Municipal Airport for the purpose of narcotics surveillance. Both officers had been trained by the Federal Drug Enforcement Administration in the art of intercepting domestic airline passengers suspected of acting as drug couriers smuggling narcotics into Charlotte area from other "source cities" in this country.

Officer Harkey testified that they were "taught to be on the lookout for anything that strikes us as unusual among people that are deplaning flights, people that are in a hurry, people that exchange baggage or packages without a lot of conversation. That is one thing we look for on incoming flights. We were told to screen the flights from source cities, which we did, just to be on the lookout for suspicious behavior that would draw our attention to individuals."

The officers' attention was attracted to defendant Casey because he held a newspaper headline up for Sport to read rather than saying hello. The officers then observed Sport push a yellow plastic bag and briefcase into defendant's hand as they walked together towards the baggage claim area. Agent Davis heard Casey give directions to his car to Sport. No other conversation took place.

As Casey left the terminal, the officers approached him and asked if they could speak with him. Casey agreed. The officers then identified themselves as police officers conducting a narcotics investigation. According to Agent Davis, Casey became "visibly nervous" as he provided the officers with his identification. When asked if the bags were his, Casey stated, "No." Officer Harkey asked Casey first if he was carrying any contraband in the plastic bag or briefcase and then whose bags he was carrying. Casey stated they were Mr. Sport's bags. Officer Harkey then left to talk with Sport and Agent Davis asked defendant if he would accompany him to a basement office inside the terminal. Davis advised Casey he was not under arrest but they were asking that he cooperate. At the time, Davis and Harkey were in plain clothes. No weapons were displayed and Casey was never physically touched. Casey agreed to accompany Davis to the basement office.

During this 8-10 minute interval, Officer Harkey was conducting an interview with Sport. Harkey testified during voir dire that Sport said, "You can search my bags" and that Harkey then asked, "Can we search your yellow bag and your briefcase." Sport responded, "Yes, you may search those if you want to." Whereupon Sport took off in a taxi, leaving his driver's license in Harkey's hand. Sport has not been heard from since.

Officer Harkey returned to the basement area. The defendant was advised by the officers that Sport had consented to a search of his luggage and of the briefcase and bag. Agent Davis then advised Casey that he could refuse to permit a search. Defendant allowed the search. Both officers testified that Casey kept the bags in his possession throughout the 8-10 minute encounter and never set them down until requested to do so by Davis. When the bags were opened, Agent Davis discovered contraband in the yellow plastic bag. The briefcase contained personal papers and items belonging to Sport. Defendant's name appeared once in an address book contained in the briefcase. Defendant was immediately arrested after the search. Neither officer claims to have known Mr. Sport or the defendant before the day of arrest.

The defendant presented no evidence during the voir dire and failed, during his cross-examination to elicit any conflicting evidence material or relevant to the trial court's findings of fact.

The trial court specifically found that defendant told the officers that the bags were not his, but belonged to Mr. Sport; that defendant was informed that he was not under arrest; that he assented to a request to go to the private office; that he was advised that he could refuse to permit a search of the briefcase and bag, and that he agreed to the search. In addition, the trial court made a separate finding that defendant was not coerced or threatened in any way, never placed under arrest and that no weapon was ever displayed by either of the officers.

The findings of fact by the trial court are supported by competent evidence and are therefore binding on this court. State v. Williams, supra; State v. Freeman, supra.

Based upon its findings of fact, the trial court concluded as a matter of law:

(1) the defendant, having specifically disclaimed ownership of the bags, had no reasonable expectation as to the privacy of their contents.

(2) the defendant freely and voluntarily consented to a search of the bags by the officers.

(3) the materials found in the bags by the officers are admissible in evidence.

The thrust of defendant's argument is that his consent to the search of the yellow plastic bag and briefcase was tainted by the law enforcement officers' warrantless "seizure" of his person in violation of his Fourth Amendment rights. Defendant equates the private office with a police station and maintains that the request that he accompany the officers was inherently coercive. No authority is cited in support of this proposition other than the ALI Model Code of Pre-arraignment Procedure Sec. 2.01(3) and commentary p. 91 (Tent.Draft No. 1, 1966). Defendant contends that he was subjected to an unreasonable seizure in that his detention in the basement office was not supported by probable cause and was neither brief nor based upon reasonable suspicion that he was engaged in narcotics trafficking.

The State maintains that the type of investigatory stop and detention involved in this case requires only that the officer has a reasonable suspicion, based upon objective facts, that the person is engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); State v. Thompson, 296 N.C. 703, 252 S.E.2d 776 (1979).

The State argues that no seizure occurred; but if a seizure is found, that reasonable or founded suspicion existed in this case based on Casey's behavior consistent with the DEA Drug Courier Profile, an "informally compiled abstract of characteristics thought to be typical of persons carrying illicit drugs." In its brief, the State urges that this court approve use of the profile as a basis for investigatory stops.

A

The legality of searches and seizures based upon the "Drug Courier Profile" has been the subject of much judicial discussion since the inception of the Drug Enforcement Administration's (DEA) narcotics surveillance program in the nation's major airports. ¹

This Court analyzed a remarkably similar encounter between Agent Davis, Officer Harkey, and another domestic air passenger in State v. Grimmett, 54 N.C.App. 494, 284 S.E.2d 144 (1981). The officers observed Grimmett and a companion near the baggage pickup area in the Charlotte Airport. They had previously been seen a few days earlier departing for Daytona Beach, Florida. The officers concluded that Grimmett's behavior pattern in the airport fell within the "drug courier profile." Harkey then approached Grimmett in a public area outside the terminal, identified himself, stated the purpose of his approach, and asked if Grimmett would talk with him. Grimmett first agreed to talk to Harkey, then subsequently agreed to accompany Harkey into the terminal. At no time did Harkey display a weapon or use physical force or contact or threaten Grimmett. On the basis of the following language from Terry v. Ohio, this Court found no seizure during the initial encounter:

"Obviously, not all personal intercourse between policemen and citizens involves 'seizure' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred. 392 U.S. at 19, n. 16, 88 S.Ct. at 1879, n. 16, 20 L.Ed.2d at 905, n. 16."

Id. at 501, 284 S.E.2d at 149, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Casey's initial encounter with Harkey and Davis was virtually identical and cannot be considered a "seizure." Casey's main ...