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  "name_abbreviation": "State v. Perkerol",
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      "STATE OF NORTH CAROLINA v. SADI MORIS PERKEROL"
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      {
        "text": "BECTON, Judge.\nOn 8 July 1984, the defendant, Sadi Moris Perkerol, pleaded guilty to trafficking in cocaine by possession and transportation, reserving his right, pursuant to N.C. Gen. Stat. Sec. 15A-979(b) (1983), to submit for appellate review Judge D. B. Herring, Jr.\u2019s Order denying his motion to suppress evidence seized from his person and his motion to suppress statements made by him. Judge Anthony Brannon accepted the plea, found that defendant had not rendered \u201csubstantial assistance\u201d to the prosecutor under N.C. Gen. Stat. Sec. 90-95(h)(5) (1981), and sentenced defendant to prison for twelve years. Considering the scope of appellate review and the record on appeal, we affirm the order denying defendant\u2019s motions to suppress. For error committed at the sentencing hearing, however, we remand.\nI\nThis case involves one of the many hundreds of drug courier profile stops at airports in the United States during the past ten years. As we noted in State v. Grimmett, 54 N.C. App. 494, 494 n. 1, 284 S.E. 2d 144, 146 (1981), disc. rev. denied and appeal dismissed, 305 N.C. 304, 290 S.E. 2d 706 (1982):\n\u201cSince 1974, the federal Drug Enforcement Administration has assigned agents to certain airports as part of a nationwide program to intercept drug couriers transporting narcotics between major drug sources and distribution centers in the United States. Federal agents have developed \u2018drug courier profiles\u2019 describing the characteristics generally associated with narcotics traffickers, and travelers with some of those characteristics are occasionally stopped at these airports for further investigation.\u201d 3 W. LaFave, Search & Seizure; A Treatise on the Fourth Amendment, Sec. 9.3 (Supp. 1981).\nIn this case, the trial court found the following facts:\n1. On April 13, 1983, Captain J. L. Brown of the Wake County Sheriffs Department and Special Agent Terry Turbe-ville of the North Carolina State Bureau of Investigation were assigned to work at the Raleigh-Durham Airport as members of a Narcotics Interdiction Unit.\n2. As the officers were positioned at the Gregg Security Checkpoint in Terminal B to observe passengers deplane Eastern Airlines flight 594 from Atlanta, Georgia, they observed two white males in the airport lobby who appeared to be watching the officers.\n3. The defendant entered the terminal area dressed in casual attire and carrying a shoulder bag which appeared to be almost empty. As he did so, he was met by the two men and hurried out of the airport without exchanging any greeting and without approaching the baggage claim area.\n4. As the men exited the airport and walked by Special Agent Turbeville, he addressed the defendant, \u201cMay I speak with you a moment?\u201d Special Agent Turbeville identified himself and Captain Brown and asked if they could see the defendant\u2019s airline ticket. The defendant then placed his shoulder bag on top of a car and unzipped it. It appeared to Agent Turbeville that the defendant was attempting to conceal the contents of the bag as he produced his airline ticket from the bag. The ticket was an Eastern Airlines ticket from flight 594 in the name of S. Peck, with a return to Atlanta the following day. Turbeville then returned the airline ticket and asked to see another form of identification and the defendant produced a North Carolina Driver\u2019s License in the name of Sadi Perkerol. Agent Turbeville then returned the driver\u2019s license to the defendant and explained to the defendant that he and Captain Brown were Narcotics Officers and that they would like to speak with him a moment. Turbeville indicated that they had an office a short distance away and that they could step into the office to avoid any possible embarrassment. The defendant said, \u201cOkay.\u201d Turbeville asked the defendant if he would like to get his bag and the defendant brought the bag with him to the office.\n5. After the defendant, Captain Brown, and Agent Tur-beville arrived at the office, Turbeville again explained that the officers were Narcotics Officers and were attempting to stem the flow of narcotics into the Raleigh-Durham area. He then asked the defendant for consent to search his person and his bag. At that point, Captain Brown, who was standing nearest the bag, asked the defendant, \u201cMay I have a look in your bag?\u201d and the defendant replied, \u201cYes, go ahead.\u201d Captain Brown then unzipped the bag and found several plastic bags containing white powder. A preliminary test on the white powder conducted by the officers showed it to be cocaine.\n6. The defendant was then placed under arrest and advised of his Miranda rights by Captain Brown, who read the rights from a standard Miranda rights card, and the defendant indicated that he understood those rights.\n7. At no time did either Captain Brown or Agent Turbe-ville place their hands on the defendant. Neither officer displayed any weapons. The defendant was not handcuffed until after he was placed under arrest. Neither officer was in uniform. The officers made no promises to the defendant, nor did they threaten him in any way. The officers addressed the defendant in a conversational tone of voice. The officers did not touch the defendant\u2019s bag until the defendant agreed to the bag\u2019s being searched. The defendant never indicated to the officers that he did not wish to cooperate with them.\nDefendant, of course, takes exception to most of the findings of fact and finds comfort in the United States Supreme Court\u2019s failure in three \u201cdrug courier profile cases\u201d to resolve definitively the seizure-nonseizure issues presented. The first case, United States v. Mendenhall, 446 U.S. 544, 64 L.Ed. 2d 497, 100 S.Ct. 1870, rehearing denied, 448 U.S. 908, 65 L.Ed. 2d 1138, 100 S.Ct. 3051 (1980), involved facts strikingly similar to those of the case at bar. Again, as noted in Grimmett, although the Mendenhall Court was unable to produce a majority opinion, Justice Stewart, joined by Justice Rehnquist, found no seizure because the encounter between Mendenhall and the DEA agents was consensual. In a concurring opinion, Justice Powell, joined by the Chief Justice and Justice Blackmun, declined to decide whether the stop constituted a seizure, although they did \u201cnot necessarily disagree\u201d with Justice Stewart\u2019s view. In the second case, Reid v. Georgia, 448 U.S. 438, 65 L.Ed. 2d 890, 100 S.Ct. 2752 (1980), the Supreme Court, in a per curiam opinion, concluded that defendant\u2019s conformance to four characteristics of a drug courier profile was insufficient to establish a reasonable suspicion that they were engaged in criminal activity, but the Court refused to address the seizure issue because it had not been litigated at the trial level. In the third case, Florida v. Royer, 460 U.S. 491, 75 L.Ed. 2d 229, 103 S.Ct. 1319 (1983), a plurality stated that no seizure occurred when DEA agents initially approached Royer and questioned him. However, a seizure did occur when the agents identified themselves as narcotics agents, told Royer he was suspected of transporting narcotics and asked him to accompany them to the police room while they retained his ticket and driver\u2019s license without indicating that he was free to go.\nThe Supreme Court\u2019s foray into the drug courier profile thicket has been the subject of considerable commentary. See J. Choper, Y. Kamisar & L. Tribe, The Supreme Court: Trends and Developments 1979-1980, at 137-39 (1981); Constantino, Cannavo & Goldstein, Drug Courier Profiles and Airport Stops: Is the Sky the Limit?, 3 W. New Eng. L. Rev. 175 (1980); Greenberg, Drug Courier Profiles, Mendenhall and Reid: Analyzing Police Intrusion on Less Than Probable Cause, 19 Am. Crim. L. Rev. 49 (1981); Greene & Wice, The D.E.A. Drug Courier Profile: History and Analysis, 22 S. Tex. L.J. 261 (1982); Note, Drug Courier Profile Stops and the Fourth Amendment: Is the Supreme Court\u2019s Case of Confusion In Its Terminal Stage?, 15 Suffolk U.L. Rev. 217 (1981); Comment, Reformulating Seizures \u2014 Airport Drug Stops and the Fourth Amendment, 69 Calif. L. Rev. 1486 (1981); Comment, Drug Trafficking At Airports \u2014 The Judicial Response, 36 U. Miami L. Rev. 91 (1981); Comment, Mendenhall and Reid: The Drug Courier Profile and Investigative Stops, 42 U. Pitt. L. Rev. 835 (1981); Comment, Criminal Profiles After United States v. Mendenhall How Well-Founded a Suspicion?, 1981 Utah L. Rev. 557; Case Comment, Fourth Amendment \u2014 Airport Searches and Seizures: Where Will the Court Land?, 71 J. Crim. Law & Criminology 499 (1980); Case Comment, Search and Seizure \u2014 Airport Drug Seizures: How the Federal Courts Strike the Fourth Amendment Balance, 58 Notre Dame L. Rev. 668 (1983); Case Comment, Criminal Law: Drug Courier Profiles, United States v. Mendenhall, 5 Nova L.J. 141 (1980).\nMany of the commentators have been critical of the Supreme Court\u2019s analysis in drug courier cases. It is not surprising, then, that the approach taken most often by courts that have wrestled with the problem is based on Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968) which created a limited exception to the general rule that seizures of a person require probable cause. That approach, adopted by our Supreme Court in State v. Thompson, 296 N.C. 703, 706, 252 S.E. 2d 776, 779 (1979), \u201crequires only that the officer have a \u2018reasonable\u2019 or \u2018founded\u2019 suspicion as justification for a limited investigative seizure.\u201d And, although Thompson is not a drug courier profile case, this Court, in the drug courier profile context, following both Terry and its progeny and our Supreme Court\u2019s statement in Thompson, adopted a three-tiered standard by which to balance the need to investigate possible criminal activity against the intrusion of individual freedom in police-citizen encounters:\n1. Communications between police and citizens involving no coercion or detention are outside the scope of the fourth amendment;\n2. Brief seizures must be supported by reasonable suspicion; and\n3. Full-scale arrests must be supported by probable cause.\nState v. Harrell, 67 N.C. App. 57, 312 S.E. 2d 230 (1984); 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); State v. Grimmett; see United States v. Berry, 670 F. 2d 583 (5th Cir. 1982).\nWith the foregoing as a backdrop, and especially considering this Court\u2019s pronouncements in Harrell, Sugg, and Grimmett and our scope of review, we reject defendant\u2019s alternative contentions (1) that the initial encounter constituted a seizure that was unsupported by specific and articulable facts or reasonable suspicion that defendant was engaged in criminal activity, and (2) that defendant was seized when the officers requested that he accompany them to the office after they had discovered additional facts from their initial questioning. The following conclusions of law by the trial court, which we find to be based on competent evidence, are binding on us and foreclose relief to defendant.\n2. The conduct of Special Agent Turbeville and Captain Brown in approaching the defendant and requesting to see his airline ticket and driver\u2019s license constituted a Constitutionally permissible investigative stop. The totality of the circumstances and all of the credible evidence point to the conclusion that the defendant was not seized within the meaning of the Fourth Amendment and that a reasonable person would have believed he was free to leave.\n3. The defendant agreed to accompany the officers to their office voluntarily and in a spirit of apparent cooperation. The officers\u2019 request that the defendant accompany them to the office did not transform the initial Constitutionally permissible encounter into a seizure.\n4. The defendant freely and voluntarily gave the officers his consent to search the bag without the officers\u2019 having made any threats, either express or implied.\n5. The defendant was properly advised of his Miranda rights by the officers both at the airport office and at the Wake County Sheriffs Department. He freely, voluntarily, and knowingly waived those rights and made statements to the law enforcement officers without any duress, coercion, or inducement by the officers.\n6. After having been arrested and before being taken to the jail, the defendant voluntarily produced the bag of white powder from his pants pocket.\nThese conclusions of law likewise prompt us to reject defendant\u2019s argument that he did not consent to the search of his bag. See State v. Grimmett; cf. State v. Fincher, 309 N.C. 1, 305 S.E. 2d 685 (1983) (findings supported the trial court\u2019s conclusion that defendant voluntarily, willingly and understandingly consented to a search of his bedroom, notwithstanding defendant presented evidence that he was 17 years old at the time of the search, that he had an I.Q. of only 50 to 65, that he suffered from a schizophreniform disorder, that he was more susceptible to fear and intimidation than an average person, that ten police officers were present when he was arrested, and that officers told him that if he refused to sign the form, a warrant would be obtained and \u201cEither way, we are going to search the apartment\u201d).\nII\nN.C. Gen. Stat. Sec. 90-95(h)(5) (1981) provides, in pertinent part, that:\n[T]he sentencing judge may reduce the fine, or impose a prison term less than the applicable minimum prison term provided by this subsection, or suspend the prison term imposed and place a person on probation when such person has, to the best of his knowledge, provided substantial assistance in the identification, arrest, or conviction of any accomplices, accessories, coconspirators, or principals if the sentencing judge enters in the record a finding that the person to be sentenced has rendered such substantial assistance. (Emphasis added.)\nOn Perkerol\u2019s Judgment and Commitment form, the sentencing judge stated: \u201cThe defendant has not complied with the section of the Statute dealing with assistance to the prosecutor.\u201d Defendant asserts that the sentencing judge erroneously concluded \u201cas a matter of law that the defendant\u2019s offer of substantial assistance pursuant to N.C.G.S. Sec. 90-95(h)(5), made at the time he entered his plea of guilty, was not timely made.\u201d On the other hand, the State asserts that the sentencing judge did not focus on the timeliness of the information defendant sought to provide but rather, found \u201cthat the defendant had not rendered substantial assistance . . . .\u201d The differing interpretations of the sentencing judge\u2019s statement prompts a remand for resentencing because we cannot determine upon what basis the sentencing judge acted.\nBefore sentencing defendant, the judge knew (1) that following defendant\u2019s arrest, Special Agent Turbeville approached defense counsel to inquire about the defendant\u2019s providing substantial assistance under the statute and that defendant initially declined; (2) that defendant later sought, unsuccessfully, to suppress evidence seized and statements made; (3) that some fifteen months later, on the morning of the sentencing hearing, defendant indicated he was willing to provide assistance, but the district attorney\u2019s office declined the defendant\u2019s offer; and (4) that the assistance defendant offered included the identity and locations of the individuals who met him at the airport on 13 April 1983 to accept the delivery of the cocaine he was carrying. In our view, this information does not support a ruling, as a matter of law, that defendant\u2019s offer of substantial assistance was not timely made. First, the statutory language \u201chas rendered such substantial assistance\u201d commonsensically sets no time limit on when such assistance must be rendered. After all, defendants charged with drug offenses often seek to suppress evidence and avoid convictions before implicating themselves and others. Second, in enacting G.S. \u00a7 90-95, our legislature recognized that a system of mandatory prison terms coupled with harsh fines is not enough to deter drug traffickers. In State v. Baldwin, 66 N.C. App. 156, 159, 310 S.E. 2d 780, 782, aff'd, 310 N.C. 623, 313 S.E. 2d 159 (1984), we said:\nTrafficking relies on complex, interwoven networks. A principal in one network may be an accomplice in another. To effectively combat trafficking, police authorities need information on, and access to, the myriad of drug-dealing activities in the various networks. Built into the trafficking statutes is a bargaining tool, G.S. Sec. 90-95(h)(5), a provision exchanging potential leniency for assistance from those who have easy access to drug networks.\nRealizing that G.S. \u00a7 90-95(h)(5) does not make the State\u2019s acceptance of a defendant\u2019s offer a prerequisite to finding substantial assistance and that the statute includes the specific language, \u201cwhen such person has, to the best of his knowledge, provided substantial assistance,\u201d we remand so the sentencing judge can determine if defendant provided \u201csubstantial assistance\u201d in accordance with the statute. We recognize, of course, that the statute is permissive, not mandatory, and that defendant has no right to a lesser sentence even if he does provide what he believes to be substantial assistance.\nFor the foregoing reasons, the order denying defendant\u2019s motion to suppress is affirmed; the judgment imposing a twelve-year sentence is vacated, and the matter is remanded for a new sentencing hearing.\nAffirmed in part and remanded.\nJudges Webb and Parker concur.\n. In what could be considered a fourth drug courier profile case \u2014 Florida v. Rodriguez, 469 U.S. \u2014, \u2014, 83 L.Ed. 2d 165, 171, 105 S.Ct. 308, 311 (1984), an airport drug stop case in which the majority, in a per curiam opinion, never mentioned the words \u201cdrug courier profile\u201d \u2014the Supreme Court \u201c[a]ssum[ed], without deciding, . . . there was a \u2018seizure\u2019 . . . [but held] that any such seizure was justified by \u2018articulable suspicion\u2019.\u201d Indeed, after noting Miami\u2019s reputation as a \u201csource city,\u201d listing the arresting officers\u2019 training and experience in narcotics surveillance, and referring to, but not detailing, the defendants\u2019 unusual behavior, the Rodriguez Court said:\n\u201cBefore the officers even spoke to the three confederates, one by one they had sighted the plain clothes officers and had spoken furtively to one another. One was twice overheard urging the others to \u2018get out of here.\u2019 Respondent\u2019s strange movements in his attempt to evade the officers aroused further justifiable suspicion, and so did the contradictory statements concerning the identities of Blanco and respondent.\u201d\nId. at \u2014, 83 L.Ed. 2d at 171, 105 S.Ct. at \u2014.\n. Compare the Florida statute, which provides that \u201c[t]he State attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted . . . and who provides substantial assistance . . . .\u201d Fla. Stat. Annot. Sec. 893.135 (1985 Supp.j. A Florida District Court of Appeals interpreted this statute as offering \u201cits inducement to the defendant at a time when he has already been adjudicated guilty, either on a plea of guilty or on a verdict. . . .\u201d Stehling v. State, 391 So. 2d 287, 288 (Fla. App. 1981). Moreover, in State v. Willis, 61 N.C. App. 23, 41, 300 S.E. 2d 420, 430-31, modified and aff\u2019d, 309 N.C. 451, 306 S.E. 2d 779 (1983), this Court, quoting another Florida case, State v. Benitez, 395 So. 2d 514, 518-19 (Fla. 1981), likened what is now G.S. Sec. 90-95(h)(5) to a \u201cpost-conviction form of plea bargaining.\u201d",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Newton G. Pritchett, Jr., for the State.",
      "Purser, Cheshire, Manning & Parker, by Thomas C. Manning, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. SADI MORIS PERKEROL\nNo. 8410SC1042\n(Filed 15 October 1985)\n1. Searches and Seizures \u00a7 13\u2014 trafficking in cocaine \u2014 airport search \u2014 drug courier profile \u2014 motion to suppress properly denied\nThe trial court did not err in a prosecution for trafficking in cocaine by denying defendant\u2019s motion to suppress evidence seized from his person and statements made by him during and after an airport investigative stop pursuant to the drug courier profile where the trial court\u2019s conclusions, supported by competent evidence, were that a reasonable person would have believed he was free to leave, defendant agreed to accompany the officers to their office voluntarily and in a spirit of cooperation, defendant freely and voluntarily consented to a search of his bag, and defendant voluntarily waived his rights, made statements to officers, and produced a bag of white powder from his pants pocket.\n2. Criminal Law \u00a7 138\u2014 trafficking in cocaine \u2014 assistance to prosecutor\nThe Court of Appeals could not determine the basis of a trial judge\u2019s statement while sentencing defendant for trafficking in cocaine that defendant had not complied with G.S. 90-95(h)(5) (1981) in assisting the prosecutor where the judge knew that an S.B.I. agent had approached defendant after his arrest to inquire about defendant providing substantial assistance under the statute and that defendant declined, defendant later sought unsuccessfully to suppress evidence seized and statements made, defendant indicated he was willing to provide assistance fifteen months later on the morning of the sentencing hearing but the district attorney\u2019s office declined the offer, and the assistance defendant offered included the identity and locations of individuals who met him at the airport to accept delivery of the cocaine he was carrying. This information does not support a ruling as a matter of law that defendant\u2019s offer of substantial assistance was not timely made and the matter was remanded for a new sentencing hearing.\nAppeal by defendant from the 26 April 1984 Order, denying his Motion to Suppress, of Herring, Judge, and the 9 July 1984 Judgment of Brannon, Judge. The Order and Judgment were entered in Superior Court, WAKE County. Heard in the Court of Appeals 4 April 1985.\nAttorney General Edmisten, by Assistant Attorney General Newton G. Pritchett, Jr., for the State.\nPurser, Cheshire, Manning & Parker, by Thomas C. Manning, for defendant appellant."
  },
  "file_name": "0292-01",
  "first_page_order": 324,
  "last_page_order": 333
}
