{ "id": 8520024, "name": "STATE OF NORTH CAROLINA v. MICHAEL RAY McDANIELS, Defendant/Appellant", "name_abbreviation": "State v. McDaniels", "decision_date": "1991-06-18", "docket_number": "No. 9010SC993", "first_page": "175", "last_page": "194", "citations": [ { "type": "official", "cite": "103 N.C. App. 175" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "31 ALR Fed 931", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "weight": 2, "opinion_index": -1 }, { "cite": "108 L.Ed.2d 603", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "pin_cites": [ { "parenthetical": "mem." } ], "opinion_index": 0 }, { "cite": "376 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "436" }, { "page": "435" }, { "page": "436" }, { "page": "436" } ], "opinion_index": 0 }, { "cite": "324 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2485742 ], "year": 1989, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0001-01" ] }, { "cite": "713 P.2d 370", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10409810 ], "year": 1986, "pin_cites": [ { "parenthetical": "reasonable expectation of privacy invaded by police use of dog to sniff locked safe from defendant's basement" } ], "opinion_index": 0, "case_paths": [ "/p2d/713/0370-01" ] }, { "cite": "521 F.2d 459", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 616149 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/f2d/521/0459-01" ] }, { "cite": "462 U.S. 696", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6193241 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "707" }, { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/us/462/0696-01" ] }, { "cite": "114 L.Ed.2d 619", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6227938 ], "year": 1991, "pin_cites": [ { "parenthetical": "closed container in stopped vehicle may be searched without warrant so long as police have probable cause to believe contraband or evidence of crime is contained therein" } ], "opinion_index": 0, "case_paths": [ "/us/500/0565-01" ] }, { "cite": "114 L.Ed.2d 297", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6221328 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/us/500/0248-01" ] }, { "cite": "389 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308673, 5304354, 5305838, 5307792, 5307378 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0366-01", "/nc/326/0366-02", "/nc/326/0366-05", "/nc/326/0366-04", "/nc/326/0366-03" ] }, { "cite": "386 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "96 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522580 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/96/0389-01" ] }, { "cite": "373 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "161", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526474 ], "year": 1988, "pin_cites": [ { "page": "695", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0686-01" ] }, { "cite": "296 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "482-83" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 99", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525868 ], "year": 1982, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0099-01" ] }, { "cite": "234 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "446", "parenthetical": "silence in face of consent by person in apparent control of car permits court to infer consent by person remaining silent, \"[e]ven assuming\" that person remaining silent \"was in some way a part owner of the car\"" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548301 ], "year": 1977, "pin_cites": [ { "page": "148", "parenthetical": "silence in face of consent by person in apparent control of car permits court to infer consent by person remaining silent, \"[e]ven assuming\" that person remaining silent \"was in some way a part owner of the car\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0145-01" ] }, { "cite": "121 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "255 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568698 ], "year": 1961, "pin_cites": [ { "page": "297-98" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0293-01" ] }, { "cite": "446 U.S. 544", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185389 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "554" }, { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/us/446/0544-01" ] }, { "cite": "305 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "700", "parenthetical": "Exum, J., dissenting in part and concurring in part" }, { "parenthetical": "defendant's signature on consent form was voluntarily, willingly and understandingly made, notwithstanding presence of at least ten officers at the scene, defendant's age of 17 and defendant's evidence that (i) he had an IQ in range between 50 and 65; (ii" } ], "opinion_index": 0 }, { "cite": "309 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762828 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "25", "parenthetical": "Exum, J., dissenting in part and concurring in part" }, { "parenthetical": "defendant's signature on consent form was voluntarily, willingly and understandingly made, notwithstanding presence of at least ten officers at the scene, defendant's age of 17 and defendant's evidence that (i) he had an IQ in range between 50 and 65; (ii" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0001-01" ] }, { "cite": "422 U.S. 873", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9550 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "881-82", "parenthetical": "approving investigative stop of moving vehicle" }, { "page": "617", "parenthetical": "approving investigative stop of moving vehicle" } ], "opinion_index": 0, "case_paths": [ "/us/422/0873-01" ] }, { "cite": "290 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569121, 8569032, 8569007, 8569080, 8569149 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0304-04", "/nc/305/0304-02", "/nc/305/0304-01", "/nc/305/0304-03", "/nc/305/0304-05" ] }, { "cite": "284 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "54 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523688 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/54/0494-01" ] }, { "cite": "442 U.S. 200", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531819 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0200-01" ] }, { "cite": "341 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "courier trafficking in cocaine" } ], "opinion_index": 0 }, { "cite": "315 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719265, 4714405, 4718935, 4716283, 4715262 ], "year": 1986, "pin_cites": [ { "parenthetical": "courier trafficking in cocaine" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0595-03", "/nc/315/0595-02", "/nc/315/0595-05", "/nc/315/0595-01", "/nc/315/0595-04" ] }, { "cite": "335 S.E.2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522019 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0292-01" ] }, { "cite": "367 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "691-92", "parenthetical": "facts supporting articulable suspicion for police encounter with defendant outside airport terminal" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522123 ], "year": 1988, "pin_cites": [ { "page": "28-29", "parenthetical": "facts supporting articulable suspicion for police encounter with defendant outside airport terminal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0015-01" ] }, { "cite": "460 U.S. 491", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195479 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "502", "parenthetical": "articulable suspicion to stop suspected drug courier in order to check identity, with subsequent discovery that suspect was traveling under an assumed name" }, { "page": "239", "parenthetical": "articulable suspicion to stop suspected drug courier in order to check identity, with subsequent discovery that suspect was traveling under an assumed name" } ], "opinion_index": 0, "case_paths": [ "/us/460/0491-01" ] }, { "cite": "407 U.S. 143", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9137003 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "146" }, { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/us/407/0143-01" ] }, { "cite": "312 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525588 ], "year": 1984, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0057-01" ] }, { "cite": "449 U.S. 411", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716341 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "413" }, { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/us/449/0411-01" ] }, { "cite": "302 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708459, 4708095, 4708334, 4706255 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0390-03", "/nc/308/0390-02", "/nc/308/0390-04", "/nc/308/0390-01" ] }, { "cite": "300 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "250", "parenthetical": "limited investigative stop is one of \"three tiers of police encounters\" and distinguishable from full-scale arrest" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519564 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "108-109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0106-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "21" }, { "page": "906" }, { "page": "26-27" }, { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "62 L.Ed.2d 143", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "444 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11384974, 11385039 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0907-01", "/us/444/0907-02" ] }, { "cite": "252 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "296 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570136 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0703-01" ] }, { "cite": "371 U.S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450611 ], "weight": 2, "year": 1963, "pin_cites": [ { "parenthetical": "confession, as well as physical evidence obtained as a direct result of an arrest unsupported by probable cause, must be suppressed" }, { "parenthetical": "confession, as well as physical evidence obtained as a direct result of an arrest unsupported by probable cause, must be suppressed" } ], "opinion_index": 2, "case_paths": [ "/us/371/0471-01" ] }, { "cite": "113 L.Ed.2d 690", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 11320254 ], "year": 1991, "opinion_index": 2, "case_paths": [ "/us/499/0621-01" ] }, { "cite": "462 U.S. 696", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6193241 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "703" }, { "page": "118" }, { "page": "722" }, { "page": "131", "parenthetical": "Blackmun, J., concurring" } ], "opinion_index": 2, "case_paths": [ "/us/462/0696-01" ] }, { "cite": "442 U.S. 200", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531819 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "213" }, { "page": "836" } ], "opinion_index": 2, "case_paths": [ "/us/442/0200-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "opinion_index": 2, "case_paths": [ "/us/392/0001-01" ] } ], "analysis": { "cardinality": 1564, "char_count": 44685, "ocr_confidence": 0.771, "pagerank": { "raw": 4.626913594614767e-07, "percentile": 0.9266702421646976 }, "sha256": "3445964c7b2c94c819aad96b4ea4a4fdcceb580f3656adf80f8bc107ba1f0c3e", "simhash": "1:2a80fd7a04d8ac77", "word_count": 7576 }, "last_updated": "2023-07-14T17:27:13.805826+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge COZORT concurs in separate opinion.", "Judge GREENE dissents in separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL RAY McDANIELS, Defendant/Appellant" ], "opinions": [ { "text": "PARKER, Judge.\nDefendant pled guilty to charges of trafficking in cocaine by conspiracy, trafficking in cocaine by possession and trafficking in cocaine by transportation. Pursuant to N.C.G.S. \u00a7 15A-979(b) defendant reserved his right to appeal the lower court\u2019s denial of his motion to suppress. The evidence presented by the State on voir dire tended to show that defendant traveled with a companion by private charter plane from Raleigh-Durham International Airport (herein \u201cRDU\u201d) to the New York City area late on a Saturday night. The two men returned to RDU a few hours later. Acting upon information from a concerned citizen, two agents of the State Bureau of Investigation (herein \u201cSBI\u201d) made inquiries and suspected criminal activity. The agents arranged for additional officers to assist and waited for defendant and his companion to return from their trip. For reasons to be discussed later, the agents decided not to stop the two men until they started driving their vehicle away from RDU. The SBI enlisted the assistance of the highway patrol for this stop. An identity check during the stop revealed that the car\u2019s driver and defendant passenger had chartered their flight under fictitious names. Two SBI agents asked the driver and defendant to step out of the car. After the men had been pat down searched, one of the agents asked for consent to search the vehicle. The driver indicated that the officers could search the car.\nIn the search, an agent located a handgun in the glove box, from which defendant had been observed withdrawing his hand after the car had been stopped. The agent also picked up a briefcase from the floor and asked both the driver and defendant if the case was his. Defendant stated that the case belonged to his cousin and objected to a search of the case without a warrant. The agent placed the case on the back seat and advised the driver that the SBI wished to use its drug detection dog, which had been brought to the scene. Neither defendant nor his companion objected. The dog was put through its standard routine and ultimately gave a positive reaction to the briefcase. Knowing that this dog signals, by scratching and biting, only in the presence of the odor of controlled substances it has been trained to recognize, the agents placed defendant and his companion under arrest. The agents then procured a search warrant before opening the briefcase, which contained two kilograms of cocaine. Additional facts will be detailed in discussion of the issues raised on appeal.\nDefendant appeals denial of his motion to suppress on five grounds: (i) the drug agents making the investigative stop of the car lacked reasonable, articulable suspicion; (ii) defendant\u2019s detention was an intrusion even more serious than an investigative stop, requiring probable cause; (iii) there was no valid consent to the search of the car; (iv) sniffing of the briefcase by a drug detection dog was an illegal search; and (v) the warrant to search the briefcase was not based on probable cause. We find that the court\u2019s findings of fact were clearly supported by the evidence presented at an extensive suppression hearing and its conclusions of law are, therefore, conclusive for purposes of appellate review. State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 62 L.Ed.2d 143 (1979). The trial judge properly denied the suppression motion.\nI.\nAs to defendant\u2019s first assignment of error, the existence of reasonable suspicion establishes the constitutionality of a temporary investigative, warrantless seizure. Id. at 706, 252 S.E.2d at 779. The warrantless seizure of a person does not violate the Fourth Amendment so long as the officer is \u201cable to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.\u201d Terry v. Ohio, 392 U.S. 1, 21, 20 L.Ed.2d 889, 906 (1968); see also State v. Sugg, 61 N.C. App. 106, 300 S.E.2d 248, disc. rev. denied, 308 N.C. 390, 302 S.E.2d 257 (1983). Similarly, objective facts and circumstantial evidence, leading a trained officer to conclude that criminal activity may be occurring, are \u201ca sufficient basis to justify an investigative stop\u201d of a moving vehicle. United States v. Cortez, 449 U.S. 411, 413, 66 L.Ed.2d 621, 625 (1981).\nThe trial court found the entire eyewitness testimony of three SBI agents and a State trooper \u201ccredible and worthy of belief,\u201d, despite defense counsel\u2019s rigorous cross-examination of those witnesses at the hearing. That testimony disclosed the following facts supporting the officers\u2019 reasonable suspicion that defendant was involved in ongoing criminal activity. The facts known to the officers at the time of the stop \u201cmust be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by experience and training.\u201d State v. Harrell, 67 N.C. App. 57, 61, 312 S.E.2d 230, 234 (1984).\nReceiving information that an air charter agent suspected drug smuggling activity, the SBI learned that defendant and another man, using the names \u201cMr. Smith\u201d and \u201cMr. Jones\u201d without first names, had arranged to charter a plane from Carolina Charter Service (herein \u201cCarolina\u201d) to fly late at night to a location in New Jersey only a taxicab ride away from New York City. The officers knew that the New York City area is the source of about ninety percent of the illegal drugs brought into central North Carolina. The two men had made an identical trip the weekend before out of RDU, using a different airline charter service; the men had been referred to Carolina when they attempted to hire the service again and it had no available planes. Dressed in \u201cshiny,\u201d \u201csilky,\u201d \u201cflashy\u201d business suits, the two men took off around 6:30 p.m. and landed back in North Carolina at 1:30 a.m. Sunday. The men paid $1,270.00 in cash for their flight. Businessmen using private charter services usually pay by business check or credit card; the officers testified that paying by cash is \u201ca very common practice by people traveling as drug couriers.\u201d Drug smugglers are known to carry large amounts of cash; defendant carried a briefcase that the chief SBI agent surmised to be transporting cash to the New York area.\nFurther, the men gave Carolina two telephone numbers, which the SBI attempted to verify without success. One of the numbers was disconnected and the other did not show a separate phone listing for either a Smith or a Jones. An officer testified that \u201c[sjomeone who might be involved in narcotics trafficking does not tend to want to put down his correct phone number.\u201d Upon its arrival at RDU the car in which defendant was riding, with heavily tinted glass, first circled the parking area for Carolina and then drove away from the parking area before returning five to ten minutes later to park. The officers believed that the car\u2019s occupants might have been watching out for police. A police check on the parked car, made during the time the men were on their trip, revealed that the license plate was in the name of a Durham woman named Frye but was assigned to a different car and that the vehicle identification number was registered to an owner named neither Smith nor Jones in another part of the State. Finally, while the briefcase suggested a business transaction, late on Saturday night seemed to the SBI agents an unusual time to conduct business when combined with the other suspicious factors in the case.\nAt the suppression hearing the prosecutor asked the main SBI agent on the case if he considered these factors \u201cindividually, or did you consider [the factors] altogether in making this decision?\u201d The agent responded that \u201cit was the totality of everything.\u201d He later expanded on that point.\nQ. [T]o what extent if any was there one particular factor that you\u2019ve listed that by itself made you suspicious?\nA. I don\u2019t know that there was one factor. There were a number of factors, and they continued right up through the time that we talked to [the two men] on the side of the road once we discovered that they were traveling under fictitious names, we discovered that with certainty.\nWe agree with the trial court that these particularized facts raised a reasonable suspicion permitting the officers to make a forcible stop, for purposes of dispelling or confirming the agents\u2019 suspicions of criminal activity. It has long been the law that\n[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.\nAdams v. Williams, 407 U.S. 143, 146, 32 L.Ed.2d 612, 617 (1972); see also Florida v. Royer, 460 U.S. 491, 502, 75 L.Ed.2d 229, 239 (1983) (articulable suspicion to stop suspected drug courier in order to check identity, with subsequent discovery that suspect was traveling under an assumed name); State v. Allen, 90 N.C. App. 15, 28-29, 367 S.E.2d 684, 691-92 (1988) (facts supporting articulable suspicion for police encounter with defendant outside airport terminal); State v. Perkerol, 77 N.C. App. 292, 335 S.E.2d 60 (1985), disc. rev. denied, 315 N.C. 595, 341 S.E.2d 36 (1986) (courier trafficking in cocaine). We, therefore, overrule defendant\u2019s first assignment of error.\nII.\nNext, defendant argues that the detention of the car and its two occupants was tantamount to an arrest, requiring probable cause, given the circumstances attending the agents\u2019 decision to wait to stop him and his companion until the two of them were driving away from the airport. The facts developed during the suppression hearing do not support defendant\u2019s arguments with regard to the location of, or other circumstances surrounding, the stop.\nThe officers testified that they stopped the suspects outside the parking area for several reasons. First, the charter service owner feared physical retaliation from drug smugglers against \u201ca couple of million dollars\u2019 worth of aircraft,\u201d if the suspects were stopped near his hangar and Carolina was suspected of being an informant. Therefore, the owner specifically requested that the stop be made away from the hangar. Second, the parking area for the charter service had \u201cno lights\u201d and adjoined a number of \u201clittle alleyways.\u201d \u201cIt\u2019s not the big parking lot; it\u2019s a driveway-parking-lot-type situation.\u201d The chief SBI agent testified that he \u201chad a lot of concern for confronting two individuals who I didn\u2019t know who they were in the dark, because there\u2019s no lights there whatsoever in that parking area there where the car was parked.\u201d \u201cIt\u2019s pretty dark in that area. And we wanted to be as safe as we could.\u201d Third, and perhaps paramount in the officers\u2019 minds, there is no X-ray or metal detector screening for weapons of passengers boarding private flights. The officers testified uniformly that they had considerable concern about their own safety and that of innocent bystanders. Finally, the officers also had safety concerns about a high-speed chase, \u201ceither in the area of the airport itself where people would be on foot and in vehicles and also out on the interstate highway.\u201d\nThe prosecutor asked the chief agent how the circumstances of defendant\u2019s travel affected the officers\u2019 decision about the location for the investigative stop.\nQ. You said that in an ordinary interdiction situation a vehicle\u2019s not involved, a car\u2019s not involved. How was this situation different from the ordinary interdiction or a general interdiction?\nA. We primarily operate in the terminals itself and are concerned with people getting on or getting off the commercial aircraft. This is one where it was a charter; and we knew the gentlemen were going to come off the plane, get in their car, and drive away. And we had to get them to the safest place for everyone concerned.\nAs the United States Supreme Court has observed, \u201ca perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify\u201d an arrest. Terry, 392 U.S. at 26-27, 20 L.Ed.2d at 909.\nDefendants were stopped a short distance from the charter service, before their car even passed the commercial airline terminals. In order to be able to intercept defendant\u2019s vehicle as it proceeded to one of the two major arteries out of the airport, the SBI had asked the highway patrol to place a car near each of those two possible egress points.\n[W]e determined that the safest place to stop them was at the intersection there on a small service road between Terminal C and Terminal A and B. It\u2019s an area that\u2019s lit up to the point of almost being daylight with extremely strong, bright streetlights; and it\u2019s out of the public.\nOther facts likewise fail to suggest the intrusiveness of an arrest. The duration of the investigative stop, up to the time the officers received consent to search the car, was \u201c[p]robably not two minutes.\u201d The brevity of an investigative stop is a key factor in justifying such a seizure. Dunaway v. New York, 442 U.S. 200, 60 L.Ed.2d 824 (1979); State v. Grimmett, 54 N.C. App. 494, 284 S.E.2d 144 (1981), disc. rev. denied and appeal dismissed, 305 N.C. 304, 290 S.E.2d 706 (1982); see also ALI, Model Code of Pre-Arraignment Procedure \u00a7 110.2(1) (1975) (recommending a maximum of twenty minutes for a Terry stop). During the two minutes of the stop in this case, the officers confirmed their suspicion that the travelers, \u201cMr. Smith\u201d and \u201cMr. Jones,\u201d purchased the tickets for their charter flight under assumed names. The names on the suspects\u2019 New Jersey driver\u2019s licenses were Michael McDaniels and Clark Waddell. After patting the suspects down for weapons, the officers obtained Waddell\u2019s consent to search. \u201cThe officer may question the driver and passengers . . . and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.\u201d United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 45 L.Ed.2d 607, 617 (1975) (approving investigative stop of moving vehicle). Adding the time it then took an agent and the dog to search the car, the total elapsed time from the officers\u2019 stopping the car up to defendant\u2019s arrest was ten to fifteen minutes, according to the chief SBI agent, or possibly twenty-five to thirty minutes, according to the State trooper\u2019s estimate.\nFurther, only the main agent approached the driver\u2019s side of the car upon its being stopped. The blue lights on the agent\u2019s car and the trooper\u2019s car \u201cup ahead,\u201d the only lights used to bring the suspects\u2019 car to a halt, were not left on. A second agent approached the front passenger side where defendant was sitting. \u201c[P]rior to the individuals being arrested, the only people who came to the car was myself, Agent Black, and Captain Brown was standing at the back of the car.\u201d The officer at each side of the car spoke in a normal, calm voice and used a non-threatening tone. The officers testified that the suspects were never surrounded and, in fact, other officers kept at \u201ca distance further than the length of this courtroom.\u201d Defendant makes much of the fact that there were a number of officers at the scene; however, our Supreme Court has refused to hold that police coercion exists as a matter of law even when ten or more officers are present with a suspect in his own home before the suspect consents to a search. State v. Fincher, 309 N.C. 1, 25, 305 S.E.2d 685, 700 (1983) (Exum, J., dissenting in part and concurring in part).\nMoreover, no weapons were visible on any officer except for the State trooper, who was in standard uniform. No weapons were drawn, nor was any police gun out of its concealed holster. Several officers were in plainclothes; a few had on jackets with official logos, although their dress was still casual. No officer\u2019s bulletproof vest was exposed to view. Finally, no force was used to get the occupants to step out of the car once it became apparent that both men were traveling under false names. The officers then informed the two men that this was a narcotics investigation.\nEven if, by show of authority, the officers \u201cseized\u201d defendant for Fourth Amendment purposes and our discussion indicates that there was such a seizure in this case, a seizure is not per se an arrest. Indeed, the United States Supreme Court, differentiating an informal encounter between an officer and a citizen from an investigative stop implicating constitutional protections, illustrates the meaning of \u201cseizure\u201d as follows.\nExamples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer\u2019s request might be compelled.\nUnited States v. Mendenhall, 446 U.S. 544, 554, 64 L.Ed.2d 497, 509 (1980). Only one of these factors, the presence at the scene of several officers, existed in this case. Finally, defendant complains that the stop occurred \u201clate at night, in a remote area of the airport property.\u201d We note that the lateness of the stop was determined solely by the time defendant himself had chosen for returning to the State from New Jersey; the allegedly remote area was very well lit and in fact a public road.\nFor all these reasons, this Court finds no irregularity, and certainly not a situation of arrest, in this investigative stop. The seizure in this case, supported as it was by reasonable suspicion, was constitutional. See, e.g., State v. Sugg, 61 N.C. App. at 108-109, 300 S.E.2d at 250 (limited investigative stop is one of \u201cthree tiers of police encounters\u201d and distinguishable from full-scale arrest).\nIII.\nDefendant\u2019s next assignment of error concerns the alleged invalidity of the driver\u2019s consent to police to search the car. We have considered each of defendant\u2019s specific contentions in this assignment: (i) the driver\u2019s consent was coerced by implied threat; (ii) even if consent was voluntary, the driver did not have apparent control or apparent custody of the stopped car and, therefore, could not give effective consent to the search; and (iii) even if the consent was voluntary, the scope of the consent did not extend to the sniffing of the air surrounding the briefcase. This Court agrees with the trial court\u2019s conclusion that defendant, because not the person in apparent control of the car, had no reasonable expectation of privacy \u201cas to any area within the vehicle.\u201d Nor do we disagree with the trial court\u2019s conclusions that defendant had apparent authority over the briefcase and that he exercised his lawful right to refuse to consent to a warrantless search of the interior of the briefcase. That refusal was not overridden.\nInitially, we note that defendant never objected to the driver\u2019s consent at the scene, nor did defendant ever assert ownership rights in either the car or any of its contents. Even if defendant had ownership rights in the contents of the car, and we find no evidence that he did, failure to speak and assert the personal right of immunity from unreasonable search and seizure \u201camount[s] to a voluntary consent to search,\u201d where the person who remains silent knows that the driver has given his verbal consent to a search. State v. Coffey, 255 N.C. 293, 297-98, 121 S.E.2d 736, 740 (1961); see also State v. Foster, 33 N.C. App. 145, 148, 234 S.E.2d 443, 446 (1977) (silence in face of consent by person in apparent control of car permits court to infer consent by person remaining silent, \u201c[e]ven assuming\u201d that person remaining silent \u201cwas in some way a part owner of the car\u201d).\nWe now turn to each of defendant\u2019s arguments concerning the search of the vehicle. First, the facts surrounding the driver\u2019s consent demonstrate no coercion by the police, implied or otherwise. When the driver\u2019s identification disclosed the name Waddell with a domicile in New Jersey, he was asked to step outside the car. The main SBI agent reported that he used a normal tone of voice and that the driver remained \u201cfairly composed.\u201d\nHe stepped out of the vehicle a short distance away from the car. I explained to him that we were involved in a narcotics investig\u00e1tion and would appreciate his cooperation. I asked him for his consent to conduct a search of the vehicle. He said to go ahead but the car was not his and nothing in it was his.\nThe officers\u2019 testimony that they used absolutely no force was not contradicted at the suppression hearing. Under these facts defendant has failed to make a showing of involuntary consent by the driver. See, e.g., State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983) (defendant\u2019s signature on consent form was voluntarily, willingly and understandingly made, notwithstanding presence of at least ten officers at the scene, defendant\u2019s age of 17 and defendant\u2019s evidence that (i) he had an IQ in range between 50 and 65; (ii) he suffered from a schizophreniform disorder; and (iii) he was more susceptible than average person to fear and intimidation); State v. Casey, 59 N.C. App. 99, 112, 296 S.E.2d 473, 482-83 (1982).\nSecond, under the applicable State statutes the consent was effective to bestow permission on the agent to search the car. N.C.G.S. \u00a7 15A-221(a) provides for warrantless searches and seizures \u201cif consent to the search is given.\u201d Under N.C.G.S. \u00a7 15A-222(2) the requisite consent \u201cmust be given\u201d either by the registered owner of the car \u201cor by the person in apparent control of its operation and contents at the time consent is given . . . .\u201d N.C.G.S. \u00a7 15A-222(2) (1988). \u201cOur courts have often found that consent given by the owner or person lawfully in control of a vehicle is sufficient to justify a search that yields evidence used against a non-consenting passenger.\u201d State v. Mandina, 91 N.C. App. 686, 695, 373 S.E.2d 155, 161 (1988) (citations omitted). A driver is in \u201capparent control\u201d of a car and its contents, whether the vehicle or its contents belong to him or to others. The officers at the scene had reason to believe that the driver was probably not the registered owner, since they had run a vehicle check earlier in the evening. Still, the driver\u2019s words of consent were sufficient to justify the agent\u2019s continuing assumption that the driver was lawfully in control of the car. If the driver had either refused to consent or told the agent that the car was stolen, this case would be different.\nThis Court also rejects defendant\u2019s argument that his companion\u2019s consent was limited in scope. Nothing in the record suggests that Waddell told the officers certain areas or certain items were \u201coff limits.\u201d Nor is there any record evidence of the driver\u2019s limiting the manner of search. In particular, there is no evidence that either defendant or the driver objected to police use of a dog to continue searching the car; nor did the driver ever attempt to modify or withdraw his initial consent to the search. These facts concerning the suspects\u2019 failure to object are similar to those in State v. Jones, 96 N.C. App. 389, 386 S.E.2d 217 (1989), disc. rev. denied and appeal dismissed, 326 N.C. 366, 389 S.E.2d 809 (1990), in which this Court found no restriction on the scope of a driver\u2019s consent to search a vehicle.\nFurther, contrary to defendant\u2019s contention, this Court also finds no Fourth Amendment violation in the SBI\u2019s handling of the briefcase during its investigation of the inside of the car. An agent searching the car picked up a briefcase on the back floorboard and first asked the driver and then defendant if it belonged to either man. After defendant told the agent the case belonged to his cousin and that he did not think the police should search the cousin\u2019s briefcase without a search warrant, the agent replaced the briefcase in the car, unopened. If defendant had a privacy interest at all, it was limited to the contents of the briefcase, as found by the trial court. Those contents were not examined until after the agents had procured a search warrant. We note further that under Florida v. Jimeno, \u2014 U.S. \u2014, 114 L.Ed.2d 297 (1991), a police officer may now search a closed container found in \u00e1 vehicle, where the officer has the suspect\u2019s general consent to search and the officer might reasonably believe the container holds the object of the search. See also California v. Acevedo, \u2014 U.S. \u2014, 114 L.Ed.2d 619 (1991) (closed container in stopped vehicle may be searched without warrant so long as police have probable cause to believe contraband or evidence of crime is contained therein).\nFor each of the foregoing reasons, we reject these arguments in defendant\u2019s third assignment of error.\nIV.\nIf the driver\u2019s consent is deemed to be valid, defendant next argues that the alleged \u201csearch\u201d of the briefcase in the car by a police dog certified in drug detection was illegal. Defendant first contends that the drug detection dog was thrust into the car without giving either man opportunity to object. The facts developed at the suppression hearing, however, show only that the chief agent was keeping the driver advised and informed \u201cof what we were doing, because he had already given us consent to search the vehicle.\u201d \u201cIt was more an informational thing than anything else.\u201d The driver not having objected to the dog\u2019s being put into the car, the search proceeded.\nAs defendant mentions in his statement of the facts, the dog immediately jumped out of the car upon being introduced to the car\u2019s interior. The possible significance of the dog\u2019s unusual reaction, left unexplained by defendant, was explored on voir dire.\nQ. What if any unusual odor did you observe in the automobile?\nA. A very strong odor of deodorizers in the car. There were deodorizers hanging in more than one location inside the car, and there was a very strong odor in the car from those.\nThe COURT: Let me ask you about that. . . .\nDoes cocaine have any particular smell?\nA. Yes, sir, it does.\nThe COURT: Detectible to the human nose?\nA. Only if you\u2019re very close to where the cocaine is or if there\u2019s a large quantity of cocaine present ....\nThe dog\u2019s handler gave similar testimony:\nI feel the reason he jumped out of the vehicle was because the odor of the perfumes was so strong. I can only describe it as it smelled to me like somebody had dumped a bottle of cologne in the vehicle.\nNor, as defendant argues, did the sniffing of the exterior of the briefcase by a well trained and exceptionally skilled drug detection dog amount to a \u201csearch\u201d within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 707, 77 L.Ed.2d 110, 121 (1983); see also United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975). Defendant\u2019s authority on this point is not analogous to the consensual situation in the present case. Cf. People v. Unruh, 713 P.2d 370 (Colo. 1986) (reasonable expectation of privacy invaded by police use of dog to sniff locked safe from defendant\u2019s basement).\nIn this case the trial court also questioned the SBI dog handler about the use of the K-9. The handler testified about his experience with this dog, the only one used by the SBI at that time, the dog\u2019s qualifications and excellent track record and the significance of the dog\u2019s scratching and biting the briefcase. \u201cI knew at that point that there was, in fact, a controlled substance in that briefcase.\u201d The trial court then asked the handler whether he could possibly influence the dog to give a false positive alert. The handler replied: \u201cI know of no instance in which I could make the dog alert to \u2014 to a particular item because he\u2019s alerting to the odor [and not anything the handler does].\u201d Later the same witness explained to the court that \u201cthe dog cannot alert if he doesn\u2019t smell the narcotic odor.\u201d\nFinding no merit in any of defendant\u2019s arguments about the use of a trained drug dog, we overrule his fourth assignment of error.\nV.\nFinally, defendant attacks the warrant obtained for search of the briefcase for lack of probable cause. This attack is groundless. The magistrate, considering all the evidence contained in the officer\u2019s affidavit, properly determined under the totality of the circumstances \u201cwhether there exist[ed] a fair probability that evidence of a crime can be found in a particular place.\u201d State v. Greene, 324 N.C. 1, 8, 376 S.E.2d 430, 436 (1989), sentence vacated, \u2014 U.S. \u2014, 108 L.Ed.2d 603 (1990) (mem.). The information given to the magistrate established probable cause under the lay, nontechnical standard applied to probable cause for search warrants. Id. at 8, 376 S.E.2d at 435. There is no longer an independent requirement that an informant \u2014 here, defendant argues, the dog\u2014 be proven reliable. Id. at 8-9, 376 S.E.2d at 436.\nThe affidavit supporting application for the search warrant relates facts leading up to the police stop as well as specific details about the suspects\u2019 possession of a briefcase. The affiant states that once consent to search was obtained,\n[t]he SBI narcotic detection K-9 was put around and in the vehicle. During the sea[r]ch inside the vehicle the K-9 gave a positive alert to a brown briefcase located in the back floorboard. The K-9, Tazmanian, is certified by US Customs . . . .\nThe dog\u2019s certification extended to cocaine, heroin, marijuana and hashish. The briefcase contained cocaine. Initial certification of the dog occurred in 1983, with recertification on 1 September 1988. The magistrate issued the search warrant on 25 September 1988. This Court accords a magistrate\u2019s determination of probable cause great deference. Id. at 8, 376 S.E.2d at 436. We overrule the final assignment of error.\nAffirmed.\nJudge COZORT concurs in separate opinion.\nJudge GREENE dissents in separate opinion.", "type": "majority", "author": "PARKER, Judge." }, { "text": "Judge COZORT\nconcurring, with separate opinion.\nI am compelled to comment on the dissent\u2019s comparison of the stop in this case with the \u201ctypical airport stop case\u201d and the dissent\u2019s apparent conclusion that the evidence must be suppressed because the intrusion of the officers here was greater than that of the typical airport stop. That conclusion is unrealistic and ignores the need for the officers to make appropriate plans for their safety and that of innocent charter flight workers and other bystanders. The testimony in this case demonstrates admirable caution, given the situation, on the part of the officers. The defendant\u2019s darkened vehicle was parked in a dark area adjoining little alleyways. These circumstances must be considered when determining what constitutes appropriate constitutional intrusiveness. We should not demand, as the dissent apparently does, that one officer approach a darkened vehicle in a dark area, occupied by suspected drug couriers who may be armed, to \u201cask a few questions,\u201d in complete disregard of the safety of himself, other officers and bystanders. The stop in this case, though longer and with more officers than that approved in an open well-lighted airport, was constitutional under the circumstances.", "type": "concurrence", "author": "Judge COZORT" }, { "text": "Judge Greene\ndissenting.\nI agree with the majority that the defendant was seized for Fourth Amendment purposes. See California v. Hodari D, \u2014 U.S. \u2014, 113 L.Ed.2d 690 (1991). However, I disagree that the seizure was constitutional. Instead I agree with the defendant that the \u201cinitial stop and detention . . . constituted a more serious intrusion than that allowed on mere reasonable suspicion and was tantamount to an arrest.\u201d\nIn order to apply the law to the evidence, it is necessary to expound some on the facts as shown in the record. Agent Turbeville testified on direct and cross-examination as follows:\nQ. Agent Turbeville, to what extent if any did you plan to stop that car for further investigation?\nA. Well, first of all, we had to decide where we were going to stop them at; and we determined that the safest place to stop them was at the intersection there on a small service road between Terminal C and Terminal A and B. It\u2019s an area that\u2019s lit up to the point of almost being daylight with extremely strong, bright streetlights; and it\u2019s out of the public. And once they reached that point I radioed ahead to Sergeant George to turn on his blue light, who was directly in front of them and at the stop sign, which would prevent them from running. And I was behind them so they would not get out into traffic and pose any danger for anyone.\nTHE COURT: Were you in radio contact with him [Sergeant George]?\nA. Yes. And once we got to this area here (indicating), which is ano extremely well-lit area, that\u2019s when I asked him, when he pulled up to that stop sign, I asked Sergeant George to turn on his blue light. And there was no place for the car to go at that point. He couldn\u2019t get around us because there\u2019s an island in the road there.\nQ. Right. Okay. Now, again to describe when the car stopped, you indicated with your diagram where the cars were, where did the police individuals go at the time the suspect car was stopped?\nA. I went to the driver\u2019s door. Special Agent Black went to the passenger door. Captain Brown was at the rear of the vehicle, and Sergeant George exited his car and was standing by the front door with the front door open to his car.\nQ. So, there was an officer in front of the car, behind the car, and on both sides of the car?\nA. That\u2019s correct.\nQ. And did you say Officer Black went to the passenger door?\nA. Yes.\nQ. And you went to the other door?\nA. Driver\u2019s door.\nQ. Where were the other officers?\nA. In the other vehicles?\nQ. Yes, sir?\nA. They all stayed with their vehicles. I\u2019m not sure if all of them got out or not. I don\u2019t recall all of them being out of their vehicles, but they all stayed at their vehicles. Nobody came up. I had directed them earlier not to come up to the car.\nQ. Well, did Mr. McDaniels voluntarily walk up to the front of the vehicle?\nA. Again, you\u2019d [sic] to ask Agent Black about that.\nQ. Did Mr. Waddell voluntarily walk up to the front of the car?\nA. He walked \u2014 he got out of the car voluntarily and he came over, sort of to the side of the front of the vehicle, yes, sir.\nQ. He walked with you?\nA. Yes.\nQ. A police officer?\nA. Yes.\nQ. Identified himself as a police officer?\nA. Yes.\nQ. In the presence of seven or eight other police officers?\nA. Yes.\nQ. Four other police vehicles?\nA. Yes.\nSummarized, the State\u2019s evidence shows the following: The vehicle in which the defendant was a passenger was stopped near the airport at approximately 2:00 a.m. One officer blocked the defendant\u2019s path and turned on his blue light. Another officer came up behind the defendant in another vehicle and turned on his blue light. When the defendant\u2019s car stopped, one officer went to the driver\u2019s door, another officer went to the passenger\u2019s door, another officer went to the rear of the vehicle, and another officer went to the front of the vehicle. A total of four police vehicles surrounded the defendant\u2019s vehicle. There were approximately nine police officers at the scene. Other than the four officers who came to the defendant\u2019s vehicle, the other officers remained in or near their vehicles. The defendant was asked by one of the officers to step out of the vehicle. After getting out of the vehicle, the defendant was subjected to a \u201cpat down\u201d search. Then the driver of the vehicle was asked by one of the officers if he would consent to a search of the vehicle. The driver agreed.\nIn Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1968), our United States Supreme Court recognized a \u201cnarrowly drawn\u201d exception to the probable cause requirement of the Fourth Amendment for seizures of the person that do not rise to the level of an arrest. Therefore, Terry defined a special category of Fourth Amendment seizures. If the \u201cnature and extent of the detention are minimally intrusive,\u201d a seizure may be supported on less than probable cause. United States v. Place, 462 U.S. 696, 703, 77 L.Ed.2d 110, 118 (1983). The \u201ccritical threshold issue\u201d of whether the seizure qualifies as a Terry stop or instead amounts to a defacto arrest is the \u201cintrusiveness of the seizure.\u201d Id. at 722, 77 L.Ed.2d at 131 (Blackmun, J., concurring). The lower the magnitude of the intrusion, the more likely it qualifies as a Terry stop.\nHere, the seizure of the defendant is indistinguishable from a traditional arrest, and \u201cany \u2018exception\u2019 that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are \u2018reasonable\u2019 only if based on probable cause.\u201d Dunaway v. New York, 442 U.S. 200, 213, 60 L.Ed.2d 824, 836 (1979). This case is unlike the typical airport stop case, wherein an officer approaches an individual and asks a few questions in a minimally intrusive manner. The Fourth Amendment requires more to justify the maximal intrusion in this case. Because the State concedes there was no probable cause to stop the defendant, the defendant\u2019s motion to suppress the evidence obtained as a result of this unlawful stop should have been allowed. Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441 (1963) (confession, as well as physical evidence obtained as a direct result of an arrest unsupported by probable cause, must be suppressed). I therefore would reverse the ruling of the trial court on the defendant\u2019s motion to suppress and grant the defendant a new trial.", "type": "dissent", "author": "Judge Greene" } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Francis W. Crawley, for the State.", "Cheshire, Parker, Hughes & Manning, by Joseph Blount Cheshire, V, and George Bullock Currin, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL RAY McDANIELS, Defendant/Appellant\nNo. 9010SC993\n(Filed 18 June 1991)\n1. Searches and Seizures \u00a7 12 (NCI3d| \u2014 narcotics \u2014 stop of car at airport \u2014 reasonable suspicion\nThe trial court in a cocaine prosecution correctly denied defendant\u2019s motion to suppress, which was based on the issue of reasonable suspicion to make an investigatory stop, where SBI agents received information that an air charter agent suspected drug smuggling activity; defendant and another man, using the names \u201cMr. Smith\u201d and \u201cMr. Jones\u201d without first names, had arranged to charter a plane to fly late at night to a location in New Jersey a short distance from New York City; the officers knew that the New York City area is the source of about ninety percent of the drugs brought into central North Carolina; the two men had made an identical trip the weekend before from RDU using a different charter service which had no planes available on this occasion; the two were dressed in \u201cshiny,\u201d \u201csilky,\u201d \u201cflashy\u201d business suits; they took off around 6:30 p.m. and landed back in North Carolina about 1:30 a.m. on Sunday; they paid in cash for their flight, which is common for drug couriers while businessmen usually pay by business check or credit card; the two men gave the charter service two telephone numbers, one of which was disconnected and the other did not show a separate listing for a Smith or Jones; the car in which they were riding, which had heavily tinted glass, circled the parking lot when it arrived, drove away, then returned five or ten minutes later; a check on the car while the men were on their flight revealed that the license plate was in the name of a Durham woman and was assigned to a different car; the vehicle identification number was registered to an owner named neither Smith nor Jones in another part of the state; and, while defendant carried a briefcase, late Saturday night seemed to the agents an unusual time to conduct business.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 41-43.\n2. Searches and Seizures \u00a7 12 (NCI3d)\u2014 narcotics \u2014 stop of car at airport late at night \u2014constitutional\nA stop of a car containing suspected drug couriers late at night at an airport was supported by a reasonable suspicion and was constitutional where there was reasonable suspicion that the occupants of the car had chartered an aircraft to fly to the New York area for narcotics; the charter service owner feared retaliation if his business was suspected of being the informer and requested that the stop be made away from his hangar; the charter service parking area had no lights and adjoined a number of alleyways; there is no screening for weapons on private flights; the chief SBI agent was concerned about the safety of a confrontation at that location; the officers were also concerned about the safety of a high speed chase at the airport or on the highway; the suspects were stopped a short distance from the charter service; the duration of the investigative stop was \u201cprobably not two minutes\u201d up to the time the officers received consent to search the car; the officers confirmed their suspicions that the suspects had purchased tickets for their charter flight under assumed names; the total time from stop to arrest was ten to fifteen minutes by one estimate and twenty-five to thirty by another; only the main agent approached the driver\u2019s side of the car; the blue lights on the vehicles used to make the stop were turned off; a second officer approached the passenger side of the car, where this defendant was sitting; the officers spoke in a calm, normal voice with a nonthreatening tone; the suspects were never surrounded; the only weapon visible was that of a state trooper; no weapon was drawn; and no force was used to get the occupants to step out of the car. Even if the officers seized defendant for Fourth Amendment purposes, a seizure is not per se an arrest.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 41-43.\n3. Searches and Seizures \u00a7 11 (NCI3d) \u2014 narcotics \u2014 search of vehicle \u2014 valid\nA motion to suppress in a cocaine trafficking prosecution, based in part on the alleged invalidity of the consent to a search of a car, was properly denied because defendant had no expectation of privacy in the car in which he was a passenger because he was not in apparent control of the car. Moreover, defendant never objected to the driver\u2019s consent at the scene and never asserted ownership rights in either the car or any of its contents; even if defendant had ownership rights in the contents of the car, failure to speak and assert the personal right of immunity from unreasonable search and seizure amounts to a voluntary consent when that person knows the driver has given his verbal consent to search. The facts surrounding the consent demonstrate no coercion by the police, implied or otherwise, and the consent was effective to bestow permission to search under N.C.G.S. \u00a7 15A-222(2) and N.C.G.S. \u00a7 15A-221(a). Although the officers had reason to believe that the driver was probably not the registered owner, the driver\u2019s words of consent were sufficient to justify the agent\u2019s continuing assumption that the driver was lawfully in control of the car and nothing in the record suggests that the driver\u2019s consent was limited in scope, including any objection to the use of a dog to continue searching the car.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 49, 53, 96.\n4. Searches and Seizures \u00a7 11 (NCI3d)\u2014 narcotics \u2014 search of briefcase inside vehicle \u2014 valid\nThere was no Fourth Amendment violation in the SBI\u2019s handling of a briefcase during its investigation of the inside of a car where an agent searching the car picked up a briefcase on the back floorboard and asked the driver and then defendant if it belonged to either, defendant told the agent that the case belonged to his cousin and that he did not think the police should search the briefcase without a warrant, the agent placed the briefcase on the backseat unopened, a dog later alerted to the briefcase, a warrant was obtained, and cocaine was found inside. If defendant had a privacy interest, it was limited to the contents of the briefcase, which were not examined until after the agents procured a search warrant.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 96, 97, 99.\nUse of trained dog to detect narcotics as unreasonable search in violation of Fourth Amendment. 31 ALR Fed 931.\n5. Searches and Seizures \u00a7 23 (NCI3d)\u2014 narcotics \u2014 search warrant \u2014probable cause \u2014 trained drug dog\nThere was probable cause to issue a warrant to search for narcotics in a briefcase where the supporting affidavit related the facts leading up to the stop as well as details about the suspects\u2019 possession of the briefcase, a dog alerted to the briefcase inside the car, and the dog had been certified by U.S. Customs.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 64, 68-70, 97.\nUse of trained dog to detect narcotics as unreasonable search in violation of Fourth Amendment. 31 ALR Fed 931.\nJudge COZORT concurring.\nJudge Greene dissenting.\nAppeal by defendant from order entered 15 June 1990 by Judge Donald W. Stephens in WAKE County Superior Court. Heard in the Court of Appeals 9 April 1991.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Francis W. Crawley, for the State.\nCheshire, Parker, Hughes & Manning, by Joseph Blount Cheshire, V, and George Bullock Currin, for defendant-appellant." }, "file_name": "0175-01", "first_page_order": 205, "last_page_order": 224 }