{ "id": 11916879, "name": "STATE OF NORTH CAROLINA v. ALFREDO F. SMITH, JR.", "name_abbreviation": "State v. Smith", "decision_date": "1995-03-07", "docket_number": "No. 9412SC419", "first_page": "106", "last_page": "118", "citations": [ { "type": "official", "cite": "118 N.C. App. 106" } ], "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": "104 L. Ed. 2d 1046", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "1994 WL 539300", "category": "reporters:specialty_west", "reporter": "WL", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "121 L. Ed. 2d 117", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "961 F.2d 964", "category": "reporters:federal", "reporter": "F.2d", "year": 1992, "opinion_index": 0 }, { "cite": "755 F. Supp. 448", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7388739 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/f-supp/755/0448-01" ] }, { "cite": "462 U.S. 640", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6192095 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "645" }, { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/us/462/0640-01" ] }, { "cite": "441 U.S. 520", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1780223 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "559" }, { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/us/441/0520-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "17" }, { "page": "903-04" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "2 L. Ed. 2d 586", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1958, "opinion_index": 0 }, { "cite": "356 U.S. 914", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171714, 6171561, 6171147, 6171471, 6171252, 6171349, 6171636 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/us/356/0914-07", "/us/356/0914-05", "/us/356/0914-01", "/us/356/0914-04", "/us/356/0914-02", "/us/356/0914-03", "/us/356/0914-06" ] }, { "cite": "247 F.2d 745", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 397657 ], "weight": 2, "year": 1957, "pin_cites": [ { "page": "750" }, { "page": "751" } ], "opinion_index": 0, "case_paths": [ "/f2d/247/0745-01" ] }, { "cite": "358 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726601, 4731024, 4726903, 4730779, 4730591 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0172-05", "/nc/320/0172-01", "/nc/320/0172-02", "/nc/320/0172-04", "/nc/320/0172-03" ] }, { "cite": "354 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "347" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169678 ], "year": 1987, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0145-01" ] }, { "cite": "358 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3650729 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/us/358/0307-01" ] }, { "cite": "400 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "433", "parenthetical": "North Carolina Supreme Court has accepted Gates as appropriate standard for showing probable cause under both federal and state constitutions" } ], "opinion_index": 0 }, { "cite": "328 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537437 ], "year": 1991, "pin_cites": [ { "page": "219", "parenthetical": "North Carolina Supreme Court has accepted Gates as appropriate standard for showing probable cause under both federal and state constitutions" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0213-01" ] }, { "cite": "77 L. Ed. 2d 1453", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "463 U.S. 1237", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6264512, 6263312, 6263604, 6263838, 6263038 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/1237-05", "/us/463/1237-02", "/us/463/1237-03", "/us/463/1237-04", "/us/463/1237-01" ] }, { "cite": "462 U.S. 213", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187462 ], "weight": 9, "year": 1983, "pin_cites": [ { "page": "238" }, { "page": "548" }, { "page": "241" }, { "page": "550" }, { "page": "246" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/us/462/0213-01" ] }, { "cite": "94 L.Ed 513", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1949, "opinion_index": 0 }, { "cite": "338 U.S. 839", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3940009, 3949892 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/us/338/0839-02", "/us/338/0839-01" ] }, { "cite": "93 L.Ed. 1879", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1949, "pin_cites": [ { "page": "1890" } ], "opinion_index": 0 }, { "cite": "338 U.S. 160", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3943769 ], "year": 1949, "pin_cites": [ { "page": "175-76" } ], "opinion_index": 0, "case_paths": [ "/us/338/0160-01" ] }, { "cite": "322 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "146", "parenthetical": "quoting Brinegar v. United States, 338 U.S. 160, 175-76, 93 L.Ed. 1879, 1890, reh'g denied, 338 U.S. 839, 94 L.Ed 513 (1949)" } ], "opinion_index": 0 }, { "cite": "312 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750239 ], "year": 1984, "pin_cites": [ { "page": "261", "parenthetical": "quoting Brinegar v. United States, 338 U.S. 160, 175-76, 93 L.Ed. 1879, 1890, reh'g denied, 338 U.S. 839, 94 L.Ed 513 (1949)" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0251-01" ] }, { "cite": "411 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "196" }, { "page": "197" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523891 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "730" }, { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0724-01" ] }, { "cite": "173 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "one who seeks to justify warrantless search has burden of showing exigencies of situation made search without warrant imperative" } ], "opinion_index": 0 }, { "cite": "276 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562400 ], "year": 1970, "pin_cites": [ { "parenthetical": "one who seeks to justify warrantless search has burden of showing exigencies of situation made search without warrant imperative" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0518-01" ] }, { "cite": "233 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "86" }, { "page": "86" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552482 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "586" }, { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0584-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "1994 WL 539300", "category": "reporters:specialty_west", "reporter": "WL", "year": 1994, "pin_cites": [ { "page": "8" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1129, "char_count": 30631, "ocr_confidence": 0.756, "pagerank": { "raw": 7.413738467400493e-07, "percentile": 0.9693431933676442 }, "sha256": "03fcd7e7ccd7601cdacc24f3b1bb5be531a3ca04d820215decf86d3946a544c4", "simhash": "1:a22178427796054b", "word_count": 4964 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge EAGLES concurs.", "Judge WALKER concurs in part and dissents in part." ], "parties": [ "STATE OF NORTH CAROLINA v. ALFREDO F. SMITH, JR." ], "opinions": [ { "text": "GREENE, Judge.\nAlfredo F. Smith, Jr. (defendant) appeals from judgments entered 11 February 1993 in Cumberland County Superior Court, after a jury found him guilty of one count of intentionally keeping and maintaining a vehicle used for the purpose of unlawfully keeping or selling controlled substances and one count of possession with intent to manufacture, sell and deliver a controlled substance. Defendant received fifteen years imprisonment.\nDefendant was indicted for maintaining a vehicle to keep and sell controlled substances and for possession with intent to manufacture, sell and deliver a controlled substance on 27 July 1992. On 10 February 1993, defendant filed a pre-trial motion to suppress evidence and an affidavit supporting this motion, claiming the search and seizure of defendant on 12 May 1992 was illegal. Before trial, the trial court conducted a suppression hearing on defendant\u2019s motion.\nThe State\u2019s evidence tended to show the following: Officer Cook has known defendant for the two to three years prior to 12 May 1992 he has worked in the Bonnie Doone area of Fayetteville, an area known to have a drag problem. Officer Cook described the Bonnie Doone area as a \u201clarge housing area with a main thoroughfare, Bragg Boulevard, running through it. . . . [F]rom Bragg Boulevard would be Johnson Street, Andy Street, Mike Street, the main thoroughfares.\u201d Prior to 12 May 1992, Officer Cook had been informed numerous times from different sources that defendant was operating a drug house and selling drugs in the Bonnie Doone area. Confidential sources told him defendant \u201chad houses that he was selling drugs from\u201d and \u201cwas in charge of some of the people who were staying in the houses, that he delivered the drugs to them, and they in turn sold them for him, and he received the profits.\u201d\nAt 12:15 a.m. on 12 May 1992, Officer Cook received a call from a source he had used two times in the past \u201cwhere arrests had been made and narcotics were seized\u201d and whom Officer Cook knew to be a reliable source. The informant told Officer Cook that defendant had approximately two thousand dollars in his possession, was operating a red Ford Escort with the license plate EVN7322, and was going to an unknown location to purchase cocaine. The informant said that once defendant had purchased the cocaine, he would be returning to an apartment, 617-D Johnson Street, which the informant described as the last apartment on the left. The informant also told Officer Cook that once defendant returned to 617-D, defendant would be packaging the cocaine in aluminum foil and going shortly thereafter to a house on Buffalo Street off of Bragg Boulevard to deliver the cocaine, where it would be sold. The informant stated when defendant \u201cdeparted [617-D] Johnson Street that he would have the cocaine concealed in his crotch, or under his crotch.\u201d\nOfficer Cook immediately called his partner, Officer O\u2019Briant and contacted his supervisor. He then met Officer O\u2019Briant in the Bonnie Doone area, picked up the informant, and had him take the officers to Johnson Street. As they approached the last apartment on the left, the informant pointed out a red Ford Escort outside the apartment and stated \u201cthat\u2019s the vehicle\u201d and that defendant \u201cwould be leaving quickly\u201d and \u201cwouldn\u2019t stay there long.\u201d The officers, in two separate vehicles, backed down the road to avoid detection and released the informant. It was approximately 1:15 a.m. on 12 May 1992.\nAt approximately 1:30 a.m. on 12 May 1992, the red Ford Escort pulled out of the dirt road onto Johnson Street and turned right on Johnson Street toward Bragg Boulevard. The license plate on this red Ford Escort was EVN7322. The officers turned on their blue lights and stopped defendant in \u201cthe center lane, the left turn lane\u201d where Johnson Street \u201ccame to Bragg Boulevard.\u201d After they identified themselves and told defendant they had information he was transporting cocaine in his vehicle, Officer Cook conducted a weapons search or pat-down search of defendant and of his vehicle. Officer Cook then informed defendant he was going to search him completely using his flashlight and hands. He asked defendant \u201cto step behind the car door of [defendant\u2019s] vehicle, which was open, and [Officer Cook] stood in between him and the car door on the outside.\u201d Officer Cook then informed defendant he believed defendant had concealed cocaine inside his underwear and asked him to open his trousers. Officer Cook stood between defendant and the \u201cdoorway\u201d because he \u201cdidn\u2019t want to expose him to other cars, the public, to embarrass him, that sort of thing.\u201d Because Officer Cook could not see underneath defendant\u2019s scrotum and testicles and could not see anything to the back or front of defendant, he asked him to pull his underwear down further. Because defendant resisted to pulling his underwear down further, Officer Cook testified, \u201cI walked to the front of [defendant] and held open his underwear . . . and slid it down. At which point with my flashlight I could see the corner of a small paper towel underneath his scrotum. I then pulled his underwear farther. [Defendant] resisted a little bit. I pushed him back into the door and reached into, uh \u2014 underneath his scrotum and removed the paper towel\u201d which contained crack cocaine. After the police executed a search warrant, they found out the last apartment on the left which the informant had pointed out was actually 617-F Johnson Street. They did not find anything in 617-D.\nDefendant testified that on 12 May 1992, he had been at 617-F Johnson Street prior to 1:15 a.m. He stated that Johnson Street is a one-lane road, \u201cbut as you approach Bragg Boulevard, it become [sic] a two-lane road towards the intersection.\u201d After he was stopped by Officers Cook and O\u2019Briant, he asked them what the probable cause was for stopping him and refused search of the car. Defendant testified that he agreed to the search of his vehicle after Officer O\u2019Briant threatened to hit him. After searching the vehicle, Officer Cook asked defendant to pull his underwear down, and defendant pulled out his \u201cshort set, along with the underwear, and show[ed] him [his] testicles.\u201d Officer Cook then asked defendant to turn around. Defendant refused, stating \u201c[y]ou are not searching me in my rear, in my butt, in the middle of the street. . . . We [sic] standing in the middle of the intersection of Bragg Boulevard and Johnson Street. He wants to search my rear.\u201d Officer Cook grabbed defendant\u2019s \u201cshort set\u201d and underwear, \u201cpulled it down, and shined his flashlight in [his] butt.\u201d\nOfficer Cook then instructed defendant to stand next to Officer O\u2019Briant while he conducted a second search of the car. When he finished, he told defendant he wanted to search him again, but defendant refused. The officers each grabbed one of defendant\u2019s hands and searched defendant again, which resulted in finding the cocaine.\nBased on the testimony received at the suppression hearing, the court made the following pertinent findings of fact:\n2. That Mr. Cook is familiar with the way drugs are sold in the Cumberland County community. And that prior to May 12, 1992, that Deputy Sheriff Cook had worked the Bonnie Doone area for approximately a two to three year period prior to that date and time.\n3. That prior to May 12th, 1992, Mr. Cook had known the defendant for a substantial period of time prior thereto and was familiar with the way drugs were sold in the Bonnie Doone community, being through various street dealers and inside various residences located in that community. . . .\n4. That over a period of time preceding May 12, 1992, Mr. Cook and other members of the Special Operations Unit had received numerous pieces of information concerning the way the defendant operated a drug organization in the Bonnie Doone community, operating through various drug houses, selling drugs from various street \u2014 selling drugs through various street .dealers, and operating houses where prostitutes also operated. . . .\n6. . . . the confidential source of information had at least on two prior occasions furnished very specific information concerning drugs and that such information furnished to Deputy Sheriff Cook had lead [sic] to at least two arrests; that at least one other officer had also used the same informant on a prior date and time and that the information furnished by the informant had always proved to be reliable.\nThe court also found that the informant had told Officer Cook defendant would be driving a red Ford Escort with license plate number EVN7322 on 12 May 1992, would be returning to an apartment on Johnson Street, identified as the last apartment on the left, and that defendant would be packaging cocaine and leaving the apartment with the packaged cocaine concealed in his crotch area. The court found that thereafter, Officers Cook and O\u2019Briant observed the red Ford Escort outside the last apartment on the left on Johnson Street, informant stated \u201cthat\u2019s the vehicle,\u201d and the officers observed the Escort leave. After the officers stopped the Escort, they identified defendant as the driver, searched him and found cocaine in a paper towel concealed in defendant\u2019s scrotum area. Based on these and other findings, the trial court concluded there was probable cause \u201cfor the stop and search of the red Ford Escort automobile and the subsequent search of the defendant,\u201d \u201c[t]hat none of the defendant\u2019s rights under the Fourth Amendment of the United States Constitution or the equivalent provision of the North Carolina Constitution have been violated,\u201d and \u201c[t]hat none of the defendant\u2019s statutory rights under the laws of the State of North Carolina have been violated.\u201d The court therefore denied defendant\u2019s motion to suppress to which defendant objected.\nThe issues presented are whether (I) under the totality of the circumstances, there was probable cause and an exigency for a war-rantless search of defendant; and (II) the search was reasonable in scope.\nI\nIn reviewing the denial of a motion to suppress, we are limited to determining whether the trial court\u2019s findings of fact are supported by competent evidence and whether the findings of fact in turn support legally correct conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Although defendant had the burden of producing a supporting affidavit under his motion to suppress, the State \u201cstill has the burden of proving that the evidence was lawfully obtained.\u201d State v. Gibson, 32 N.C. App. 584, 586, 233 S.E.2d 84, 86 (1977); see also State v. McCloud, 276 N.C. 518, 173 S.E.2d 753 (1970) (one who seeks to justify warrantless search has burden of showing exigencies of situation made search without warrant imperative). Defendant concedes in his brief that \u201creasonable suspicion existed to justify a Terry stop and frisk\u201d; however, he argues \u201cthis suspicion clearly did not rise to the level of probable cause\u201d to justify a war-rantless search of defendant. We disagree.\nIf probable cause to search exists and the exigencies of the situation make a warrantless search necessary, it is lawful to conduct a warrantless search. State v. Mills, 104 N.C. App. 724, 730, 411 S.E.2d 193, 196 (1991). \u201c \u2018Probable cause exists where \u201cthe facts and circumstances within their [the officers\u2019] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that\u201d an offense has been or is being committed.\u2019 \u201d State v. Zuniga, 312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 93 L.Ed. 1879, 1890, reh\u2019g denied, 338 U.S. 839, 94 L.Ed 513 (1949)). \u201cProbabilities ... are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.\u201d Id.\nThe United States Supreme Court determined that when deciding whether information received from a confidential informant properly forms the basis of probable cause to search or arrest, courts must review the \u201ctotality of the circumstances.\u201d Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, reh\u2019g denied, 463 U.S. 1237, 77 L. Ed. 2d 1453 (1983); see State v. Riggs, 328 N.C. 213, 219, 400 S.E.2d 429, 433 (1991) (North Carolina Supreme Court has accepted Gates as appropriate standard for showing probable cause under both federal and state constitutions). The Court emphasized that \u201c[o]ur decisions applying the totality-of-the-circumstances analysis . . . have consistently recognized the value of corroboration of details of an informant\u2019s tip by independent police work.\u201d Gates, 462 U.S. at 241, 76 L. Ed. 2d at 550. The Court emphasized that \u201cprobable cause does not demand the certainty we associate with formal trials.\u201d Id. at 246, 76 L. Ed. 2d at 553. Therefore, it is enough if there is a \u201cfair probability\u201d that a confidential informant obtained his entire story either straight from a defendant or from someone he trusted, and corroboration of \u201cmajor portions of the [informant]\u2019s predictions provides just this probability.\u201d Id.\nBased on these principles, the officers in this case had probable cause to search defendant on Bragg Boulevard under the totality of the circumstances. The State\u2019s evidence shows Officer Cook received a phone call at 12:15 a.m. on 12 May 1992 from an informant he had used on two prior occasions that had led to arrests. The informant told Officer Cook that defendant would be driving a red Ford Escort with license plate EVN7322, would be picking up cocaine, would be arriving at the last apartment on the left on Johnson Street to package the cocaine in aluminum foil, would be going to a house on Buffalo Street off of Bragg Boulevard to deliver the cocaine, where it would be sold, and would have the cocaine concealed in his crotch or under his crotch. Based on this information, Officer Cook met Officer O\u2019Briant at approximately 1:30 a.m. and picked up the informant. Once they were near the last apartment on the left on Johnson Street, the informant pointed out a red Ford Escort outside the apartment and stated \u201cthat\u2019s the vehicle.\u201d At approximately 1:30 a.m. on 12 May 1992, the red Ford Escort with license plate EVN7322, with defendant driving, pulled out of the dirt road onto Johnson Street and turned right on Johnson Street toward Bragg Boulevard.\nOfficers Cook and O\u2019Briant independently corroborated the information received from the confidential informant except that defendant had successfully concealed the cocaine on his person. The informant in this case provided detailed predictions of defendant\u2019s future actions ordinarily not easily predicted. Furthermore, Officer Cook was familiar with defendant, familiar with the drug area of Fayetteville, and had received on numerous occasions from numerous sources information that defendant was operating houses out of which drugs were sold. The officers therefore had reasonable grounds to believe the remaining unverified information, that defendant did conceal drugs in his underwear for transport, was likewise true. Considering all these facts and circumstances together, \u201ca man of reasonable caution\u201d would believe that \u201can offense has been or is being committed.\u201d\nExigent circumstances also existed to make the warrantless search of defendant valid. In this case, the information received by Officer Cook revealed that defendant was going to obtain drugs and then deliver them to another location. If the officers had \u201ctaken the time to obtain a search warrant, the delay might have caused a \u2018probable absence of the purported drug violator\u2019 \u201d and also the probable disappearance or destruction of the controlled substances. Mills, 104 N.C. App. at 731, 411 S.E.2d at 197. Accordingly, the officers conducted a lawful search of defendant based upon probable cause and the existence of exigent circumstances, and there was competent evidence to support the trial court\u2019s findings of fact and conclusions of law in denying defendant\u2019s motion to suppress. See Gates, 462 U.S. 213, 76 L. Ed. 2d 527 (because drug agents independently corroborated anonymous letter that defendants were drug dealers and traveled to Florida from Indiana to transport drugs, probable cause existed); Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327 (1959) (information of Draper\u2019s clothing, that he would be walking fast, that he would be arriving on a train from Chicago, and that he would be carrying heroin supplied probable cause because officer had verified every facet of information given him except whether Draper had heroin on him or in his bag which officer could accept as true).\nII\nDefendant also argues that even if probable cause existed, the search of defendant nevertheless \u201cviolated the Fourth Amendment through its intolerable intensity and scope.\u201d We agree.\nInitially, we note the trial court did not make specific findings of fact regarding the reasonableness of the actual search of defendant, but concluded \u201cnone of the defendant\u2019s rights under the Fourth Amendment of the United States Constitution or the equivalent provision of the North Carolina Constitution have been violated\u201d; however, because there is no material conflict in the evidence regarding the actual search of defendant, findings on this issue are not necessary, though the better practice is to find facts. State v. Edwards, 85 N.C. App. 145, 148, 354 S.E.2d 344, 347, cert. denied, 320 N.C. 172, 358 S.E.2d 58 (1987). We therefore determine whether the State has met its burden of proving the search of defendant was reasonable in its scope, thereby supporting the trial court\u2019s conclusion none of defendant\u2019s Fourth Amendment rights were violated. Gibson, 32 N.C. App. at 586, 233 S.E.2d at 86.\nThe Fourth Amendment\u2019s prohibition against unreasonable searches and seizures is \u201cbroad and unqualified,\u201d \u201cmakes no differentiation between persons and property,\u201d and \u201cshould be construed \u2018liberally to safeguard the right of privacy.\u2019 \u201d Blackford v. United States, 247 F.2d 745, 750 (9th Cir. 1957), cert. denied, 356 U.S. 914, 2 L. Ed. 2d 586 (1958). A \u201csearch which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.\u201d Terry v. Ohio, 392 U.S. 1, 17, 20 L. Ed. 2d 889, 903-04 (1968). In determining whether or not conduct is unreasonable, \u201c[t]here is no slide-rule formula,\u201d and \u201c[e]ach case must turn on its own relevant facts and circumstances.\u201d Blackford, 247 F.2d at 751. In determining reasonableness, courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Bell v. Wolfish, 441 U.S. 520, 559, 60 L. Ed. 2d 447, 481 (1979). As such, the necessary scope of a search may vary depending on whether the search is conducted before police have effected an arrest, at the time and place of arrest, or at the station house.\nPolice conduct that would be impractical or unreasonable \u2014 or embarrassingly intrusive \u2014 on the street can more readily \u2014 and privately \u2014 be performed at the station. For example, the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street, but the practical necessities of routine jail administration may even justify taking a prisoner\u2019s clothes before confining him, although that step would be rare.\nIllinois v. Lafayette, 462 U.S. 640, 645, 77 L. Ed. 2d 65, 71 (1983). \u201c[T]he presence of probable cause to arrest, when the police have not effected an arrest, permits a more limited search than that permitted incident to arrest.\u201d United States v. Alexander, 755 F. Supp. 448, 454 (D.D.C. 1991), aff'd, 961 F.2d 964, cert. denied, \u2014 U.S. \u2014, 121 L. Ed. 2d 117 (1992). Furthermore, \u201c[s]earches akin to strip searches can be justified in public places if limited in scope and required by unusual circumstances.\u201d United States v. Bazy, 1994 WL 539300 (D. Kan. 1994) (because defendant was not required to disrobe or submit to visual body cavity search and public view was blocked by defendant\u2019s clothes, troopers, and the patrol cars, and unusual circumstances for immediate search existed, trooper\u2019s reaching into defendant\u2019s underwear to remove crack cocaine was reasonable). Under these principles and in balancing the scope of the search against exigent circumstances in determining reasonableness, courts have allowed highly intrusive warrantless searches of individuals where exigent circumstances are shown to exist, such as imminent loss of evidence or potential health risk to the individual. See Bazy, 1994 WL 539300 (where officers knew defendant was concealing drugs in rear of his pants, there was danger of imminent destruction of evidence, and there was health risk to defendant, search of defendant by loosening his pants and removing drugs resting against defendant\u2019s buttocks was reasonable without search warrant); Alexander, 755 F. Supp. 448 (search of defendant\u2019s person by reaching inside underwear on public sidewalk reasonable in view of exigent circumstances that delay in search could enable defendant to dispose of drugs in private in bathroom).\nBased on these factors for determining reasonableness, the State has not produced evidence to show that the police in this case, although having probable cause to search defendant without a warrant, were reasonable in the manner in which they conducted the search of defendant. The State\u2019s evidence shows the police searched defendant by pulling his pants down far enough that Officer Cook could see the corner of a small paper towel underneath defendant\u2019s scrotum. The State\u2019s evidence also shows that Officer Cook stood between defendant and the doorway to defendant\u2019s car when conducting the search in the middle of an intersection of two main thoroughfares at 1:30 a.m. The State\u2019s evidence does not show, however, that where Officer Cook stood or the time the search occurred somehow protected defendant from the view of passing drivers. Furthermore, the State\u2019s evidence does not show whether the area was well-lit or dimly lit or whether there were passing cars, if any. We realize that \u201c[t]he reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative \u2018less intrusive\u2019 means,\u201d Lafayette, 462 U.S. at 647, 77 L. Ed. 2d at 72, and that the government has an interest in stopping drug trafficking; however, the officers in this case could have easily employed other means of conducting their search of defendant which would have been more protective of defendant\u2019s privacy interests. For example, the officers could have searched defendant in the patrol car or effected an arrest and searched defendant at the stationhouse. See Mills, 104 N.C. App. 724, 411 S.E.2d 193 (factors establishing probable cause to arrest also establish probable cause to search where facts within officers\u2019 knowledge and of which they had reasonably trustworthy information sufficient to warrant man of reasonable caution in belief offense has been committed). The search of defendant in this case was akin to a strip search in a public place and was not \u201climited in scope\u201d nor \u201crequired by unusual circumstances.\u201d There is nothing under the facts of this case to suggest that defendant could have disposed of the drugs before being placed in the patrol car or taken to the station. Under these circumstances, the search of defendant was intolerable in its intensity and scope and therefore unreasonable under the Fourth Amendment. For these reasons, the trial court erred in denying defendant\u2019s motion to suppress, and defendant is entitled to a new trial.\nReversed and remanded.\nJudge EAGLES concurs.\nJudge WALKER concurs in part and dissents in part.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Walker\nconcurring in part and dissenting in part.\nI concur in the majority opinion that there was probable cause and an exigency for a warrantless search of defendant. However, I respectfully dissent from the Court\u2019s holding that the search of defendant was \u201cintolerable in its intensity and scope and therefore unreasonable under the Fourth Amendment.\u201d\nThe majority cites United States v. Bazy for the proposition that \u201c[s]earches akin to strip searches can be justified in public places if limited in scope and required by unusual circumstances.\u201d Bazy, 1994 WL 539300, at 8 (D. Kan.). I believe the facts and holding of Bazy suggest that such a search was justified under the circumstances of the instant case. In that case, officers stopped Bazy and a companion on the Kansas Turnpike at 8:30 A.M. A search of both men followed, during which \u201c[t]he troopers unbuckled Bazy\u2019s pants and pulled them away from his waist and checked his underwear for drugs.\u201d A plastic bag containing cocaine was found lodged between Bazy\u2019s buttocks. A trooper then reached into Bazy\u2019s pants and pulled out the bag. The search occurred \u201con the grassy edge of the roadway between [Bazy\u2019s] car and a patrol car\u201d and Bazy \u201cwas not exposed to the view of oncoming traffic, as the view was obstructed by the patrol car and by a trooper standing in front of him.\u201d Id. at 3. The defendant contended that the search was overly intrusive and not justified at the time and place, and that the public location of the search was embarrassing and humiliating. Id. The court found that the search, \u201c[w]hile plainly more than a pat-down search,\u201d was nonetheless still limited in scope and intensity such that it did not violate the Fourth Amendment. Id. at 7. The court recognized that other less intrusive means for searching Bazy may have been available but said that \u201c \u2018[t]he reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of\u2019 \u201d these less intrusive means. Id. (citations omitted). The court refused to \u201csecond guess the troopers on this procedure. The court [was] satisfied . . . that the troopers took the necessary and reasonable precautions to prevent the public exposure of the defendant Bazy\u2019s private parts.\u201d Id.\nThe search in the instant case took place at approximately 1:30 A.M. at the intersection of two streets in Fayetteville. The record does not reveal the conditions at the time, and defendant\u2019s objection was that he did not want the officer to \u201csearch [his] rear\u201d in \u201cthe middle of the street.\u201d\nHere the evidence does show that prior to the search Officer Cook asked defendant to step behind the open car door of his vehicle and that he positioned himself between defendant and the car door on the outside. Officer Cook said he took these steps \u201cbecause [he] didn\u2019t want to expose [defendant] to other cars, the public, to embarrass him, that sort of thing.\u201d Defendant did not dispute this testimony. Considering the totality of the circumstances, I believe that the officers here, like the trooper in Bazy, took \u201cthe necessary and reasonable precautions to prevent the public exposure of defendants] . . . private areas.\u201d While there may have been other less intrusive means of conducting the search, I agree with the Bazy court that the availability of those less intrusive means does not automatically transform an otherwise reasonable search into a Fourth Amendment violation.\nJust as the court in Bazy was unwilling to second guess the procedures used by the officers in that case, I am unwilling to second-guess the trial court\u2019s finding here that the officers\u2019 conduct during the search did not violate defendant\u2019s Fourth Amendment rights. The trial court in ruling on defendant\u2019s motion to suppress had the arguments of both parties before it and was in a superior position to evaluate the reasonableness of the search. I do not believe defendant is entitled to a new trial, and I would affirm the trial court in all respects.", "type": "concurrence", "author": "Judge Walker" } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Robin P. Pendergraft for the State.", "Beaver, Holt, Richardson, Stemlicht, Burge & Glazier, PA., by Richard B. Glazier, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALFREDO F. SMITH, JR.\nNo. 9412SC419\n(Filed 7 March 1995)\n1. Searches and Seizures \u00a7 26 (NCI4th)\u2014 warrantless search of defendant \u2014 information from confidential informant\u2014 probable cause\nOfficers had probable cause to conduct a warrantless search of defendant at an intersection under the totality of the circumstances and exigent circumstances existed to make the warrant-less search valid where the evidence showed that one officer received a phone call at 12:15 a.m. from an informant he had used on two prior occasions that had led to arrests; the informant told the officer what defendant would be driving and the license tag number, and that defendant would be picking up cocaine, taking it to a particular apartment, packaging it, and taking it to a particular house to sell it; the informant also stated that defendant would have the cocaine concealed in his crotch area; the officers independently corroborated the information received from the informant except that defendant had successfully concealed the cocaine on his person; the officers apprehended defendant at 1:30 a.m.; the officer was familiar with the drug area of the city and had received on numerous occasions from numerous sources information that defendant was operating houses out of which drugs were sold; and, had the officers taken the time to obtain a search warrant, the delay might have caused defendant\u2019s escape and disappearance or destruction of the controlled substances.\nAm Jur 2d, Searches and Seizures \u00a7 69.\n2. Searches and Seizures \u00a7 2 (NCI4th)\u2014 strip search at intersection \u2014 unreasonable search\nA warrantless search of defendant was intolerable in its intensity and scope and therefore unreasonable under the Fourth Amendment where police searched defendant by pulling his pants down far enough that an officer could see the corner of a small paper towel underneath defendant\u2019s scrotum, and this search took place in the middle of an intersection of two main thoroughfares at 1:30 a.m.\nAm Jur 2d, Searches and Seizures \u00a7 5.\nLaw enforcement officer\u2019s authority, under Federal Constitution\u2019s Fourth Amendment, to stop and briefly detain, and to conduct limited protective search of or \u201cfrisk,\u201d for investigative purposes, person suspected of criminal activity \u2014 Supreme Court cases. 104 L. Ed. 2d 1046.\nJudge Walker concurring in part and dissenting in part.\nAppeal by defendant from judgments entered 11 February 1993 in Cumberland County Superior Court by Judge E. Lynn Johnson. Heard in the Court of Appeals 24 January 1995.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Robin P. Pendergraft for the State.\nBeaver, Holt, Richardson, Stemlicht, Burge & Glazier, PA., by Richard B. Glazier, for defendant-appellant." }, "file_name": "0106-01", "first_page_order": 138, "last_page_order": 150 }