State v. Smith, COA11–1335.

• Decision Date: 07 August 2012
• Docket Number: No. COA11–1335.,COA11–1335.
• Citation: 729 S.E.2d 120
• Parties: STATE of North Carolina v. Curtis SMITH, Jr.
• Court: North Carolina Court of Appeals

729 S.E.2d 120

STATE of North Carolina

v.Curtis SMITH, Jr.

No. COA11–1335.

Court of Appeals of North Carolina.

Aug. 7, 2012.

Appeal by State from order entered 2 June 2011 by Judge L. Todd Burke in Forsyth County Superior Court. Heard in the Court of Appeals 2 April 2012.

Attorney General Roy Cooper by Assistant Attorney General Derrick C. Mertz for the State.

Appellate Defender Staples Hughes by Assistant Appellate Defender Constance E. Widenhouse for defendant-appellee.

STEELMAN, Judge.

A drug dog's positive alert at the front side driver's door of a motor vehicle does not give rise to probable cause to conduct a warrantless search of the person of a recent passenger.

I. Factual and Procedural History

On 11 September 2010 at 11:02 p.m., Corporal M.S. McDonald (Officer McDonald) of the Winston–Salem Police Department heard loud music emanating from a 1972 Chevrolet automobile in a gas station parking lot. Officer McDonald observed three persons standing outside the vehicle. The driver, Mr. Leach (Leach), stood at the rear of the vehicle, pumping gas, while Curtis Smith, Jr. (defendant) stood next to the right front passenger door, and Mr. McCray stood outsidethe rear passenger door. Officer McDonald approached Leach and informed him that the music was too loud. McCray apologized, reached into the vehicle, and lowered the volume. Officer McDonald requested a driver's license and vehicle registration.

At 11:12 p.m., Officer McDonald returned to his patrol car, requested an additional unit, and verified Leach's license and vehicle registration via his on-board computer. Officers M.L. Canup (Officer Canup) and Singletary (Officer Singletary) arrived and requested identification from the two passengers. Officer McDonald checked defendant's past criminal history through his computer and found “an extensive local record which included numerous drug offenses,” including possession of marijuana in June 2010. Based upon the criminal histories of Leach, McCray, and defendant, Officer McDonald requested the assistance of K–9 Officer T.M. Jones (Officer Jones). Officer McDonald cited Leach for a noise ordinance violation. While Officer McDonald was preparing the citation, McCray and Leach became verbally aggressive with the officers, and Officer Canup warned them about their conduct. Defendant remained calm during the entire incident. McCray left the gas station.

At 11:20 p.m., after preparing the citation, Officer McDonald returned Leach's license and registration and began to explain the citation. Officer Jones arrived with the drug dog at 11:22 p.m., while Officer McDonald was still explaining the citation to Leach. At 11:24 p.m., Officer McDonald finished explaining the citation. Officer McDonald asked Leach if he had anything illegal in his motor vehicle. Leach replied “no.” Officer McDonald asked if he could search the motor vehicle. Leach responded that he was in a hurry, but the officers could look in through the windows. Officer McDonald had the drug dog sniff the exterior of the motor vehicle. Officer McDonald placed Leach and defendant at the rear of his patrol car. The dog alerted to a controlled substance at the driver's door.

Following this alert, Officer McDonald searched the vehicle and found no contraband other than an open container of alcohol in the rear seat area. Officer Jones advised Officer Canup to search Leach and defendant. Officer Canup searched defendant and found contraband. Defendant grabbed the cocaine and threw it across the police vehicle. On 18 April 2011, defendant was indicted for felony possession of cocaine and for resisting a public officer.

Defendant filed a motion to suppress evidence of the contraband found on his person. On 2 June 2011, the trial court granted defendant's motion to suppress, concluding that “there was no indicia of evidence as it relates to Mr. Smith regarding any reason why his Fourth Amendment rights would have been relinquished and he would have been subject to a search without a warrant.”

The State appealed and certified, pursuant to N.C. Gen.Stat. § 15A–979(c) (2011), “that this appeal [was] not taken for the purpose of delay and that the evidence suppressed as a result of the Court's Order [was] essential to the prosecution of the case.”

II. Motion to Suppress

The State's only argument on appeal is that the trial court erred in granting defendant's motion to suppress. We disagree.

A. Standard of Review

“The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law.” State v. Biber, 365 N.C. 162, 167–68, 712 S.E.2d 874, 878 (2011). “However, when, as here, the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal.” Biber, 365 N.C. at 168, 712 S.E.2d at 878. Conclusions of law are reviewed de novo. Id.

B. Analysis

“The Fourth Amendment of the United States Constitution and Article I, Section 20 of the North Carolina Constitution prohibit unreasonable searches and seizures.” State v. Downing, 169 N.C.App. 790, 794, 613 S.E.2d 35, 38 (2005). The same provisions “require the exclusion of evidence obtained by unreasonable searches and seizures.” State v. McLamb, 186 N.C.App. 124, 125–26, 649 S.E.2d 902, 903 (2007).

The “touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” State v. Robinson, 148 N.C.App. 422, 428, 560 S.E.2d 154, 158 (2002) (internal quotation marks omitted). “The Fourth Amendment allows reasonable searches and seizures based upon probable cause.” State v. Harris, 95 N.C.App. 691, 696, 384 S.E.2d 50, 52 (1989).

“Probable cause has been defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.” State v. Yates, 162 N.C.App. 118, 122, 589 S.E.2d 902, 904 (2004) (internal quotation marks omitted). “This Court has determined that probable cause to search exists when a reasonable person acting in good faith could reasonably believe that a search of the defendant would reveal the controlled substances sought which would aid in his conviction.” State v. Pittman, 111 N.C.App. 808, 813, 433 S.E.2d 822, 825 (1993) (internal quotation marks omitted).

We note that a sniff by a well-trained narcotics dog has been held not to be a search under the Fourth Amendment.

The United States Supreme Court discussed the Fourth Amendment implications of a canine sniff in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). There, the Court treated the sniff of a well-trained narcotics dog as sui generis because the sniff disclose[d] only the presence or absence of narcotics, a contraband item. Id. at 707, 103 S.Ct. 2637, 77 L.Ed.2d at 121. As the United States Supreme Court explained in Illinois v. Caballes, since there is no legitimate interest in possessing contraband, a police officer's use of a well-trained narcotics dog that reveals only the possession of narcotics does not compromise any legitimate privacy interest and does not violate the Fourth Amendment. 543 U.S. 405, 408–09, 125 S.Ct. 834, 160 L.Ed.2d 842, 847 (2005).

State v. Washburn, 201 N.C.App. 93, 97, 685 S.E.2d 555, 558 (2009) (internal quotation marks omitted) (alteration in original). We further note that the search of the motor vehicle following the alert by the drug dog was proper. Id. at 100, 685 S.E.2d at 560.

In the instant case, the sole issue is whether a drug dog's positive alert to a motor vehicle while defendant, a former passenger within the motor vehicle, was outside the vehicle constitutes probable cause to search defendant's person without a search warrant. The State argues that a positive drug dog alert on a motor vehicle provides “probable cause to search the vehicle and its recent occupants, including defendant, for the source of the odor.” No North Carolina case so holds. This is a question of first impression for North Carolina.

i. State's Authorities

The State cites U.S. v. Anchondo, 156 F.3d 1043 (10th Cir.1998); State v. Riggs, 328 N.C. 213, 400 S.E.2d 429 (1991); and Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), in support of its argument.

In Anchondo, a vehicle operated by defendant and occupied by a passenger were stopped at a checkpoint. Anchondo, 156 F.3d at 1044. “While one border patrol agent asked the men routine questions, another agent walked a drug-sniffing canine around the exterior of the defendant's sedan.” Id. The opinion does not indicate that defendant was inside or outside of the motor vehicle during the dog sniff. The Tenth Circuit Court of Appeals held that the dog's alert provided the probable cause necessary to arrest defendant. Anchondo, 156 F.3d at 1045. The decision in Anchondo has been held to stand for the proposition that a positive alert given by a drug dog followed by a negative search of the vehicle results in probable cause to search the driver of the vehicle. Whitehead v. Com., 278 Va. 300, 316, 683 S.E.2d 299, 306 (2009) (citing Anchondo, 156 F.3d at 1045). However, Anchondo can be distinguished from the instant case in that in there was no indication whether defendant was inside the motor vehicle when the drug dog made the positive alert. Further, the positive alert was made on defendant's own motor vehicle, which is distinguishable from the instant case, in where defendant was merely a passenger.

In Riggs, the North Carolina Supreme Court upheld a warrant to search defendant's residence even though “there was no direct evidence of the presence of contraband within its walls.” Riggs, 328 N.C....