{ "id": 4150658, "name": "STATE OF NORTH CAROLINA v. TIMOTHY STONE", "name_abbreviation": "State v. Stone", "decision_date": "2007-12-07", "docket_number": "No. 505A06", "first_page": "50", "last_page": "62", "citations": [ { "type": "official", "cite": "362 N.C. 50" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "634 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636585 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/se2d/634/0244-01" ] }, { "cite": "179 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8235940 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/nc-app/179/0297-01" ] }, { "cite": "536 U.S. 194", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254966 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "201", "parenthetical": "\"per se rules are inappropriate in the Fourth Amendment context,\" as \"the proper inquiry necessitates a consideration of 'all the circumstances surrounding the encounter.' \"" }, { "page": "252", "parenthetical": "\"per se rules are inappropriate in the Fourth Amendment context,\" as \"the proper inquiry necessitates a consideration of 'all the circumstances surrounding the encounter.' \"" } ], "opinion_index": 0, "case_paths": [ "/us/536/0194-01" ] }, { "cite": "501 U.S. 429", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108039 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "439" }, { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/us/501/0429-01" ] }, { "cite": "456 U.S. 798", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191830 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/us/456/0798-01" ] }, { "cite": "956 F.2d 295", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10519786, 5684493 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "298" }, { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/f2d/956/0295-01", "/us-app-dc/294/0009-01" ] }, { "cite": "547 U.S. 103", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3275967 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "111" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/us/547/0103-01" ] }, { "cite": "754 F. Supp. 1211", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7389507 ], "year": 1990, "pin_cites": [ { "page": "1218", "parenthetical": "\"[D]eeply imbedded in our culture ... is the belief that people have a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have their 'private' parts observed or touched by others.\" (footnote call number omitted)" } ], "opinion_index": 0, "case_paths": [ "/f-supp/754/1211-01" ] }, { "cite": "961 F.2d 188", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1863269 ], "year": 1992, "pin_cites": [ { "page": "191", "parenthetical": "citing Doe v. Calumet City, Ill., 754 F. Supp. 1211, 1218 (N.D. Ill. 1990" } ], "opinion_index": 0, "case_paths": [ "/f2d/961/0188-01" ] }, { "cite": "888 F.2d 795", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10534431 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "800-01" }, { "page": "800" }, { "page": "800-01" } ], "opinion_index": 0, "case_paths": [ "/f2d/888/0795-01" ] }, { "cite": "88 L. Ed. 2d 112", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "474 U.S. 845", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6350113, 6352161, 6352419, 6350317, 6350743, 6350929, 6351121, 6349874, 6351734, 6350518, 6351353, 6351517, 6352638 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/474/0845-02", "/us/474/0845-11", "/us/474/0845-12", "/us/474/0845-03", "/us/474/0845-05", "/us/474/0845-06", "/us/474/0845-07", "/us/474/0845-01", "/us/474/0845-10", "/us/474/0845-04", "/us/474/0845-08", "/us/474/0845-09", "/us/474/0845-13" ] }, { "cite": "759 F.2d 1558", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 388372 ], "pin_cites": [ { "page": "1563" } ], "opinion_index": 0, "case_paths": [ "/f2d/759/1558-01" ] }, { "cite": "134 L. Ed. 2d 779", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "517 U.S. 1189", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11816256, 11816772, 11816364, 11817228, 11816942, 11816464, 11817040, 11817298, 11817141, 11817397, 11816695, 11816861 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/517/1189-01", "/us/517/1189-05", "/us/517/1189-02", "/us/517/1189-10", "/us/517/1189-07", "/us/517/1189-03", "/us/517/1189-08", "/us/517/1189-11", "/us/517/1189-09", "/us/517/1189-12", "/us/517/1189-04", "/us/517/1189-06" ] }, { "cite": "454 S.E.2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "686" }, { "page": "684-85" }, { "page": "682" }, { "page": "684" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916879 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "116" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0106-01" ] }, { "cite": "464 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "46" }, { "page": "46" } ], "opinion_index": 0 }, { "cite": "342 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796061 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "407" }, { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0407-01" ] }, { "cite": "127 S. Ct. 2400", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 3573063 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "2406", "parenthetical": "noting that the Court has never indicated \"any distinction between driver and passenger that would affect the Fourth Amendment analysis\" of standing to challenge a search of one's person" }, { "page": "139", "parenthetical": "noting that the Court has never indicated \"any distinction between driver and passenger that would affect the Fourth Amendment analysis\" of standing to challenge a search of one's person" } ], "opinion_index": 0, "case_paths": [ "/us/551/0249-01" ] }, { "cite": "500 U.S. 248", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6221328 ], "weight": 10, "year": 1991, "pin_cites": [ { "page": "250-51", "parenthetical": "citations omitted" }, { "page": "302", "parenthetical": "citations omitted" }, { "page": "251" }, { "page": "302" }, { "page": "251" }, { "page": "251" }, { "page": "302" }, { "page": "251" }, { "page": "302", "parenthetical": "\"The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness- what would the typical reasonable person have understood by the exchange between the officer and the suspect?\"" } ], "opinion_index": 0, "case_paths": [ "/us/500/0248-01" ] }, { "cite": "154 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "65", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "270 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566852 ], "year": 1967, "pin_cites": [ { "page": "239", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0234-01" ] }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "357" }, { "page": "585", "parenthetical": "stating that \"searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions\" (footnote call number omitted)" } ], "opinion_index": 0, "case_paths": [ "/us/389/0347-01" ] }, { "cite": "340 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "361" } ], "opinion_index": 0 }, { "cite": "315 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716443 ], "year": 1986, "pin_cites": [ { "page": "577-78" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0571-01" ] }, { "cite": "351 S.E.2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "287", "parenthetical": "citing N.C. R. App. P. 16(b)" } ], "opinion_index": 0 }, { "cite": "318 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735974 ], "year": 1987, "pin_cites": [ { "page": "681-82", "parenthetical": "citing N.C. R. App. P. 16(b)" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0680-01" ] }, { "cite": "116 S. Ct. 1676", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6465220 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/br/195/1676-01" ] }, { "cite": "38 Va. App. 433", "category": "reporters:state", "reporter": "Va. App.", "case_ids": [ 977182 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "447", "parenthetical": "finding a suspect's general consent to a search of his body permitted the officer to pull away the suspect's underwear and look inside" }, { "page": "344", "parenthetical": "finding a suspect's general consent to a search of his body permitted the officer to pull away the suspect's underwear and look inside" } ], "opinion_index": 1, "case_paths": [ "/va-app/38/0433-01" ] }, { "cite": "90 Geo. L.J. 1087", "category": "journals:journal", "reporter": "Geo. L.J.", "opinion_index": 1 }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 1 }, { "cite": "231 F.3d 1289", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11184328 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "1298" } ], "opinion_index": 1, "case_paths": [ "/f3d/231/1289-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "year": 1968, "opinion_index": 1, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "29 L. Ed. 2d 715", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 1 }, { "cite": "91 S. Ct. 2266", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 1 }, { "cite": "403 U.S. 934", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12040163, 12039973, 12039717, 12040328, 12040072, 12039913, 12040209, 12039857, 12040275, 12039795, 12040114, 12039638, 12040023 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/us/403/0934-10", "/us/403/0934-06", "/us/403/0934-02", "/us/403/0934-13", "/us/403/0934-08", "/us/403/0934-05", "/us/403/0934-11", "/us/403/0934-04", "/us/403/0934-12", "/us/403/0934-03", "/us/403/0934-09", "/us/403/0934-01", "/us/403/0934-07" ] }, { "cite": "178 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "601" } ], "opinion_index": 1 }, { "cite": "278 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559596 ], "year": 1971, "pin_cites": [ { "page": "41" } ], "opinion_index": 1, "case_paths": [ "/nc/278/0036-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "619-20" }, { "page": "620" }, { "page": "619-20" } ], "opinion_index": 1 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "134-35" } ], "opinion_index": 1, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "456 U.S. 798", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191830 ], "weight": 6, "year": 1982, "opinion_index": 1, "case_paths": [ "/us/456/0798-01" ] }, { "cite": "956 F.2d 295", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10519786, 5684493 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "297", "parenthetical": "citations omitted" }, { "page": "297", "parenthetical": "treating the \"typical reasonable, person\" referenced in Jimeno as an observer instead of the officer or the suspect" }, { "page": "296, 298" }, { "page": "296" }, { "page": "297-98" }, { "page": "298" } ], "opinion_index": 1, "case_paths": [ "/f2d/956/0295-01", "/us-app-dc/294/0009-01" ] }, { "cite": "888 F.2d 795", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10534431 ], "year": 1989, "pin_cites": [ { "page": "801" } ], "opinion_index": 1, "case_paths": [ "/f2d/888/0795-01" ] }, { "cite": "134 L. Ed. 2d 779", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 1 }, { "cite": "517 U.S. 1189", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11816256, 11816772, 11816364, 11817228, 11816942, 11816464, 11817040, 11817298, 11817141, 11817397, 11816695, 11816861 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/us/517/1189-01", "/us/517/1189-05", "/us/517/1189-02", "/us/517/1189-10", "/us/517/1189-07", "/us/517/1189-03", "/us/517/1189-08", "/us/517/1189-11", "/us/517/1189-09", "/us/517/1189-12", "/us/517/1189-04", "/us/517/1189-06" ] }, { "cite": "454 S.E.2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "682" }, { "parenthetical": "alterations in original" } ], "opinion_index": 1 }, { "cite": "118 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916879 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "109" } ], "opinion_index": 1, "case_paths": [ "/nc-app/118/0106-01" ] }, { "cite": "464 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 1 }, { "cite": "342 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796061 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/342/0407-01" ] }, { "cite": "500 U.S. 248", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6221328 ], "weight": 15, "year": 1991, "pin_cites": [ { "page": "251", "parenthetical": "citations omitted" }, { "page": "1803-04", "parenthetical": "citations omitted" }, { "page": "302", "parenthetical": "citations omitted" }, { "page": "249-50" }, { "page": "1803" }, { "page": "301-02" }, { "page": "251" }, { "page": "1804" }, { "page": "250-51" }, { "page": "1803-04" }, { "page": "302" }, { "page": "251" }, { "page": "1803-04" }, { "page": "302" } ], "opinion_index": 1, "case_paths": [ "/us/500/0248-01" ] } ], "analysis": { "cardinality": 1184, "char_count": 32973, "ocr_confidence": 0.76, "pagerank": { "raw": 1.924850432436797e-07, "percentile": 0.7334759671316745 }, "sha256": "1acd852dcff6cf43cc840569b1faddedf86aa00e7c12fda7cd62838347907950", "simhash": "1:bc69f6ba775f4b49", "word_count": 5403 }, "last_updated": "2023-07-14T21:47:03.529976+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice PARKER joins in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. TIMOTHY STONE" ], "opinions": [ { "text": "HUDSON, Justice.\nWe examine today whether a passenger in a vehicle who gave consent to a generic search for weapons or drugs during a routine traffic stop subjected himself to an officer\u2019s flashlight search inside his underwear. Under the circumstances here, we conclude he did not. We hold that this intrusion violated the defendant\u2019s rights under the Fourth Amendment to the United States Constitution, which protects all persons from unreasonable searches and seizures, and entitles defendant Stone to a new trial;\nDefendant was indicted for possession with intent to sell or deliver cocaine. Before trial, he moved to suppress the cocaine seized on three grounds: (1) that the original stop was unlawful, (2) that the officer\u2019s search exceeded the scope of his consent, and (3) that the officer seized the pill bottle without probable cause.\nThe only issue before us is the one addressed by the dissent in the Court of Appeals, to wit, whether the search exceeded the scope of defendant\u2019s consent. \u201cWhen an appeal is taken pursuant to N.C.G.S. [\u00a7] 7A-30(2), the scope of this Court\u2019s review is properly limited to the issue upon which the dissent in the Court of Appeals diverges from the opinion of the majority.\u201d State v. Hooper, 318 N.C. 680, 681-82, 351 S.E.2d 286, 287 (1987) (citing N.C. R. App. P. 16(b)); Blumenthal v. Lynch, 315 N.C. 571, 577-78, 340 S.E.2d 358, 361 (1986)).\nIn denying defendant\u2019s motion to suppress, the trial court made the following findings of fact, which have not been challenged on appeal:\n1. At approximately 3:30 a.m. on October 7, 2002, CharlotteMecklenburg Police Officer R.E. Correa (\u201cCorrea\u201d) was on routine patrol in the Nations Ford area of Charlotte, North Carolina.\n2. Correa has been a CMPD officer for over six years. The Nations Ford area is part of the Steel Creek Division, where he has worked for three years. This particular area has a high incidence of drug and prostitution offenses.\n3. On this date, Correa noticed a burgundy Oldsmobile leaving the Villager Lodge motel. Correa recalled seeing the same vehicle in and around this particular motel on prior occasions. Correa has made numerous drug and prostitution arrests in and around the Villager Lodge motel.\n4. Correa began following the Oldsmobile. The Oldsmobile accelerated and turned right onto Farmhurst Drive. Correa estimated that the car was traveling at 50 mph, approximately 15 mph over the speed limit. Correa, however, did not activate his blue lights or make any effort to stop the car.\n5. The Oldsmobile pulled into the parking lot of an apartment complex on Farmhurst Drive. Correa pulled in directly behind the car and shone his spot light on the vehicle.\n6. Correa saw two people in the car. He also saw that the vehicle\u2019s license plate was displayed on the rear window instead of the bumper. Finally, he noticed that the passenger (in this case, the Defendant) was moving from side to side.\n10. Correa then turned his attention to the Defendant, who was not wearing a seatbelt. Correa recognized the Defendant, having previously received an anonymous tip that Defendant was a drug dealer. He asked Defendant for identification, but he could not produce one.\n11. Correa asked Defendant to step to the back of the vehicle. Defendant complied. Correa asked Defendant if he had any drugs or weapons on his person. Defendant said no, which prompted Correa to ask for consent to search. Defendant gave consent.\n12. Defendant was wearing a jacket and a pair of drawstring sweat pants.\n13. During the initial search, Correa found $552.00 in cash in the lower left pocket of Defendant\u2019s sweat pants. After advising Defendant that it was not safe to carry such a large amount \u2019of cash in that manner as it could easily fall out, Correa again asked Defendant if he had anything on him. Once again, Defendant denied having drugs or weapons and authorized Correa to continue the search. By this time, Officer Gerson Herrera (\u201cHerrera\u201d) had arrived as the backup officer.\n14. Correa checked the rear of Defendant\u2019s sweat pants and then moved his hands to the front of Defendant\u2019s waistband. At that point, Correa pulled Defendant\u2019s sweat pants away from his body and trained his flashlight on the Defendant\u2019s groin area. Defendant objected, but by that time, both Correa and Herrera had already seen the white cap of what appeared to be a pill bottle tucked in between Defendant\u2019s inner thigh and testicles.\nThe trial court thereupon concluded that although the search was \u201cintrusive,\u201d it was reasonable under the circumstances. Defendant was convicted as charged, and he appealed both the order denying his motion to suppress and the judgment.\nOn 5 September 2006, the Court of Appeals held that the trial court erred by denying defendant\u2019s motion to suppress and ordered a new trial. The panel held unanimously that the officer had grounds to stop the vehicle in which defendant was riding, and that asking defendant to step out of the vehicle was lawful. A majority held that the flashlight search inside defendant\u2019s pants exceeded the scope of defendant\u2019s consent. The dissent concluded that because a reasonable person would expect a search under these circumstances to include actions like those taken by this officer, the search was not beyond the scope of defendant\u2019s consent.\nOn appeal, the State maintains that the dissent correctly determined that the search did not exceed the scope of the consent. The defendant argues that it did. We agree.\nThe Fourth Amendment protects citizens from unreasonable searches and seizures, but permits searches to which a suspect consents. See Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585 (1967) (stating that \u201csearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment \u2014 subject only to a few specifically established and well-delineated exceptions\u201d (footnote call number omitted)). This Court has also held that by waiver and consent to search \u201cfree from coercion, duress or fraud, and not given merely to avoid resistance,\u201d a defendant relinquishes the protection of the Fourth Amendment, against an unlawful search and seizure. State v. Little, 270 N.C. 234, 239, 154 S.E.2d 61, 65 (1967) (citations omitted).\n\u201cThe standard for measuring the scope of a suspect\u2019s consent under the Fourth Amendment is that of \u2018objective\u2019 reasonableness\u2014 what would the typical reasonable person have understood by the exchange between the officer and the suspect?\u201d Florida v. Jimeno, 500 U.S. 248, 250-51, 114 L. Ed. 2d 297, 302 (1991) (citations omitted). The United States Supreme Court has recently affirmed that passengers searched during traffic stops may challenge the constitutionality of those searches. Brendlin v. California,-U.S.-,-, 127 S. Ct. 2400, 2406, 168 L. Ed. 2d 132, 139 (2007) (noting that the Court has never indicated \u201cany distinction between driver and passenger that would affect the Fourth Amendment analysis\u201d of standing to challenge a search of one\u2019s person).\nTo determine whether defendant\u2019s general consent to be searched for weapons or drugs encompassed having his pants and underwear pulled away from his body so that his genital area could be examined with a flashlight, we consider whether a reasonable person would have understood his consent to include such an examination. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302.\nThis Court has not written an opinion specifically addressing a similar consent search, but it has adopted a dissent from the Court of Appeals in a factually similar case involving a search based on probable cause. State v. Smith, 342 N.C. 407, 407, 464 S.E.2d 45, 46 (1995). In State v. Smith, the Court of Appeals granted a new trial, holding a search based on probable cause and exigent circumstances unreasonable because the scope and manner of the search were \u201cintolerable.\u201d 118 N.C. App. 106, 116, 454 S.E.2d 680, 686, rev\u2019d per curiam on other grounds, 342 N.C. 407, 464 S.E.2d 45 (1995), cert. denied, 517 U.S. 1189, 134 L. Ed. 2d 779 (1996). Although the defendant in Smith did not give consent, the officers had probable cause and exigent circumstances, as well as a specific tip from an informant that defendant \u201cwould have the cocaine concealed in his crotch or under his crotch.\u201d Id. at 112-13, 454 S.E.2d at 684-85. This Court reversed the Court of Appeals for the reasons stated in the dissenting opinion, holding that the scope of the search was not unreasonable. Smith, 342 N.C. at 407, 464 S.E.2d at 46. We conclude that Smith is in\u00e1pposite in our evaluation of this search based on consent.\nSeveral cases from other jurisdictions, while not binding upon this Court, have discussed the reasonableness of similar consent searches. \u201cA suspect\u2019s consent can impose limits on the scope of a search in the sa\u00edne way as do the specifications of a warrant.\u201d United States v. Milian-Rodriguez, 759 F.2d 1558, 1563 (11th Cir.) (citation omitted), cert. denied, 474 U.S. 845, 88 L. Ed. 2d 112 (1985). Even when an individual gives a general consent without express limitations, the scope of a permissible search has limits. It is constrained by the bounds of reasonableness: what the reasonable person would expect. United States v. Blake, 888 F.2d 795, 800-01 (11th Cir. 1989). In Blake, the court affirmed the trial court\u2019s ruling that \u201cthe consent given by the defendants allowing the officers to search their \u2018persons\u2019 could not, under the circumstances, be construed as authorization for the officers to touch their genitals in the middle of a public area.\u201d Id. at 800. The court went on to explain that \u201cit cannot be said that a reasonable individual would understand that a search of one\u2019s person \u2022would entail an officer touching his or her genitals.\u201d Id. at 800-01. See also Justice v. City of Peachtree, 961 F.2d 188, 191 (11th Cir. 1992) (citing Doe v. Calumet City, Ill., 754 F. Supp. 1211, 1218 (N.D. Ill. 1990) (\u201c[D]eeply imbedded in our culture ... is the belief that people have a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have their \u2018private\u2019 parts observed or touched by others.\u201d (footnote call number omitted)).\nThe United States Supreme Court has said that the \u201cconstant element in assessing Fourth Amendment reasonableness in consent cases is the great significance given to widely shared social expectations.\u201d Georgia v. Randolph, 547 U.S. 103, 111, 164 L. Ed. 2d 208, 220 (2006). The search of these intimate areas would surely violate our widely shared social expectation; these areas are referred to as \u201cprivate parts\u201d for obvious reasons.\nAlthough the individual\u2019s subjective understanding of the scope of his or her general consent to search is not controlling, we note that defendant evidently did not expect this search by flashlight to occur. Defendant said \u201cWhoa\u201d when the officer pulled out his waistband to look, and the court found as fact that defendant objected when the officer \u201cpulled Defendant\u2019s sweatpants away from his body and trained his flashlight on Defendant\u2019s groin area.\u201d His subjective response, while not dispositive of the reasonableness of the search, is an indication that it exceeded his expectations.\nThe State and the dissent cite United States v. Rodney, 956 F.2d 295, 298 (D.C. Cir. 1992), for the proposition that, in a search for drugs, a suspect could reasonably expect some search of his genital area, such as \u201ca continuous sweeping motion over [the suspect\u2019s] outer garments.\u201d The State and the dissent contend that such touching is no less intrusive than the flashlight-illuminated visual search conducted here.\nIn Jimeno, the United States Supreme Court observed that \u201cthe scope of a search is generally defined by its expressed object.\u201d 500 U.S. at 251, 114 L. Ed. 2d at 303 (citing United States v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572 (1982)). The following year in Rodney, the D.C. Circuit noted that drug dealers frequently hide contraband in the genital area, and thus, a \u201crequest to conduct a body search for drugs reasonably includes a request to conduct some search of that area.\u201d 956 F.2d at 298. The Rodney court specifically held \u201conly that [the defendant\u2019s] generalized consent authorized the kind of \u2018traditional frisk search\u2019 undertaken here.\u201d Id. The court noted that it \u201cexpressfed] no view on questions involving putatively consensual searches of a more intrusive nature,\u201d such as a search involving \u201cdirect \u2018frontal touching\u2019 \u201d of a suspect\u2019s genitals as disapproved in Blake. Id. However, Rodney, a federal case, is not binding on this Court, and we have never addressed the issue of whether a deliberate touching of a suspect\u2019s genitals through clothing exceeds the scope of a permissive search. Accordingly, we are considering for the first time the question of whether the scope of a general consent search necessarily includes consent for the officer to move clothing in order to observe directly the genitals of a clothed suspect.\nWe conclude here that a reasonable person in defendant\u2019s circumstances would not have understood that his general consent to search included allowing the law enforcement officer to pull his pants and underwear away from his body and shine a flashlight on his genitals. See Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302. Although these events occurred at 3:30 a.m., the search occurred in the parking lot of an apartment complex, as opposed to a secluded area or police station. Both Officers Correa and Herrera were present during the search. The record does not indicate that the officers asked defendant to step behind a car door, used their bodies to screen defendant from public view, or took other action to shield defendant during the search, as the officers did in Smith. 118 N.C. App. at 109, 454 S.E.2d at 682. Nor did they ask defendant to clarify the scope of his consent. Officer Correa testified that he was \u201cnot really expecting to find anything, honestly\u201d during his search of defendant, unlike in Smith where the officers had specific information that cocaine was hidden in the defendant\u2019s crotch. Id. at 112-13, 454 S.E.2d at 684.\nWe conclude defendant\u2019s general consent to search did not authorize the officer to employ the very intrusive measures undertaken here. In concluding otherwise and denying defendant\u2019s motion to suppress, the trial court focused on reasonableness from the officer\u2019s perspective, rather than on the reasonable expectations of the person in defendant\u2019s circumstances. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302 (\u201cThe standard for measuring the scope of a suspect\u2019s consent under the Fourth Amendment is that of \u2018objective\u2019 reasonableness\u2014 what would the typical reasonable person have understood by the exchange between the officer and the suspect?\u201d).\nBecause today\u2019s decision is necessarily predicated on its facts, see United States v. Drayton, 536 U.S. 194, 201,153 L. Ed. 2d 242, 252 (2002) (\u201cper se rules are inappropriate in the Fourth Amendment context,\u201d as \u201cthe proper inquiry necessitates a consideration of \u2018all the circumstances surrounding the encounter.\u2019 \u201d) (quoting Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 402 (1991)), we observe that different actions by the officer could have led to a different result. We conclude that the defendant, acting as a \u201creasonable person,\u201d would not have understood that his general consent to a search permitted the officer to pull his pants away and look into his genital area with a flashlight. Accordingly, the Court of Appeals correctly decided that the trial court erred by denying defendant\u2019s motion to suppress and correctly held that, as a result, defendant should receive a new trial.\nAFFIRMED.", "type": "majority", "author": "HUDSON, Justice." }, { "text": "Justice NEWBY\ndissenting.\nThe issue presented in this case is whether the trial court reasonably determined that a brief and discreet look into defendant\u2019s pants by a law enforcement officer of the same sex was within the scope of defendant\u2019s second general consent to a search of his person for drugs. Federal constitutional law requires this decision to be made using a case by case factual analysis, such as the one conducted by the trial court. Although the majority agrees a case by case approach is appropriate, its analysis implies a general consent can never be sufficient. United States Supreme Court precedent does not permit such a general prohibition. The majority also wrongly applies that Court\u2019s test by focusing on defendant\u2019s perspective rather than that of a third party observer and incorrectly compares the consent search in this case to a probable cause search. Because the record supports the trial court\u2019s conclusion that the visual inspection was within the scope of the second consent given in this case, I respectfully dissent.\nAs defendant has not objected to the trial court\u2019s findings of fact, our review of this evidentiary ruling is limited to determining whether those factual findings support the trial court\u2019s conclusions of law. State v. Cooke, 306 N.C. 132, 291 S.E.2d 618 (1982). This Court \u201caccords great deference to the trial court in this respect because it is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision.\u201d Id. at 134, 291 S.E.2d at 619-20. In contrast, \u201c \u2018[t]he appellate court is much less favored because it sees only a cold, written record.\u2019 \u201d Id. at 135, 291 S.E.2d at 620 (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601, cert. denied, 403 U.S. 934, 91 S. Ct. 2266, 29 L. Ed. 2d 715 (1971)).\n\u201cThe standard for measuring the scope of a suspect\u2019s consent under the Fourth Amendment is that of \u2018objective\u2019 reasonableness\u2014 what would the typical reasonable person have understood by the exchange between the officer and the suspect?\u201d Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297, 302 (1991) (citations omitted). In Jimeno, the United States Supreme Court addressed whether a search of a closed container found within the defendant\u2019s vehicle was within the scope of defendant\u2019s general consent to search the vehicle. Id. at 249-50, 111 S. Ct. at 1803, 114 L. Ed. 2d at 301-02. After noting that \u201c[t]he scope of a search is generally defined by its expressed object,\u201d the Court examined the exchange between the police officer and the defendant. Id. at 251, 111 S. Ct. at 1804, 114 L. Ed. 2d at 303 (citing United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)). The Court specifically observed that the defendant \u201cdid not place any explicit limitation on the scope of the search,\u201d that the officer informed the defendant he would be looking for narcotics in the defendant\u2019s vehicle, and that \u201c[a] reasonable person may be expected to know that narcotics are generally carried in some form of a container.\u201d Id. In light of this exchange, the Court determined \u201cit was objectively reasonable for the police to conclude that the general consent to search [the defendant\u2019s] car included consent to search containers within that car which might bear drugs.\u201d Id. No additional, specific consent was necessary.\nAs indicated by the trial court\u2019s findings of fact, all of the factors the Supreme Court found relevant in Jimeno are present in this case. Officer Correa sought consent to search defendant for drugs, and defendant provided a general consent without any limitation. Moreover, just as \u201c[a] reasonable person may be expected to know that narcotics are generally carried in some form of a container,\u201d id., a reasonable person may be expected to understand that drug \u201c[dealers frequently hide drugs near their genitals,\u201d United States v. Rodney, 956 F.2d 295, 297 (D.C. Cir. 1992) (citations omitted).\nAdditional aspects of the exchange between Officer Correa and defendant indicate that Officer Correa\u2019s search was within the scope of defendant\u2019s consent. Officer Correa recognized defendant because he had previously received an anonymous tip that defendant was a drug dealer. The search occurred shortly after 3:30 a.m. in an area known for illegal drugs, and the apartment complex parking lot was dark enough that Officer Correa needed to shine his spotlight on the car and use a flashlight to look inside defendant\u2019s pants. As a result, the search was conducted in relative privacy.\nFinally, defendant had opportunities to limit or withdraw his consent that were not present in Jimeno. After Officer Correa finished his initial pat-down and frisk of defendant, he talked to defendant about the large amount of money he found in defendant\u2019s pocket. When Officer Correa requested permission to search defendant for a second time, defendant was given another opportunity to deny or limit consent, but did not. Officer Correa began his second search by looking in the back of defendant\u2019s pants, then moved his hands from back to front along defendant\u2019s waistband before looking in the front of defendant\u2019s pants. Although he chose not to, defendant was free to withdraw or limit his consent for the second search at any time before Officer Correa noticed the pill bottle in defendant\u2019s genital area. The majority asserts that defendant\u2019s verbal response to the search shows Officer Correa\u2019s action was unexpected. However, the trial court\u2019s undisputed finding of fact states that defendant objected to the search only after the police officers spotted the container of drugs, not when Officer Correa began looking in defendant\u2019s pants. As the trial court noted, \u201c [defendant's attempt to retract his consent to search occurred only after [Officer] Correa and [Officer] Herrera found the pill bottle hidden in [defendant's underwear.\u201d\nIn short, after examining the exchange between Officer Correa and defendant, the trial court correctly determined that the search performed by Officer Correa was within the scope of defendant\u2019s consent. It was objectively reasonable for Officer Correa to conclude defendant\u2019s unlimited, general consent permitted a brief look into defendant\u2019s pants during the second search. Under Jimeno, reasonableness must be determined based on an objective standard. 500 U.S. at 250-51, 111 S. Ct. at 1803-04, 114 L. Ed. 2d at 302; see Rodney, 956 F.2d at 297 (treating the \u201ctypical reasonable, person\u201d referenced in Jimeno as an observer instead of the officer or the suspect). The majority incorrectly asserts that Jimeno requires the scope of consent to be determined from the perspective of the suspect. Asking what defendant, acting as a reasonable person, would have understood that his general consent to a search permitted is different from asking \u201cwhat would the typical reasonable person have understood by the exchange between the officer and the suspect?\u201d Jimeno, 500 U.S. at 251, 111 S. Ct. at 1803-04, 114 L. Ed. 2d at 302. Indeed, because a defendant who objects to a search as beyond the scope of his consent will always argue he did not understand his consent included the challenged search, it is difficult to comprehend how the majority\u2019s standard is objective at all. The majority admits that its test includes consideration of defendant\u2019s \u201csubjective response\u201d to the finding of drugs on his person. On the other hand, it could be readily maintained that, as a third party observer, the trial court is in the best position to determine the reasonableness of the search in light of the exchange. See Cooke, 306 N.C. at 134-35, 291 S.E.2d at 619-20.\nSubsequent cases applying Jimeno confirm that the evidence is sufficient to support the trial court\u2019s conclusion that the search conducted here was within the scope of defendant\u2019s general consent. In Rodney, the United States Court of Appeals for the D.C. Circuit applied Jimeno to a fact pattern involving the defendant\u2019s general consent to search his body for drugs. The officer\u2019s search, which was conducted outside a Washington, D.C. bus station, \u201cinvolved a continuous sweeping motion over [the defendant\u2019s] outer garments, including the trousers covering his crotch area.\u201d Rodney, 956 F.2d at 296, 298. The officer felt \u201csmall, rock-like objects\u201d in the defendant\u2019s genital area which were eventually determined to be a cocaine base. Id. at 296. Although the court indicated a reluctance to apply Jimeno \u201cunflinchingly\u201d in the context of a search of a person, it concluded the defendant\u2019s general consent to a body search for drugs authorized the search performed by the officer because \u201c[d]ealers frequently hide drugs near their genitals\u201d and the search was \u201cno more invasive than the typical\u201d Terry pat-down frisk for weapons. Id. at 297-98; see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).\nThe majority distinguishes Rodney because that case involved a pat-down and frisk instead of a visual look. However, Rodney did not hold that only searches involving a thorough pat-down and frisk could be within the scope of a general consent. Instead, Rodney listed three types of searches that might fall into a more intrusive category requiring specific consent: full body cavity searches, searches involving \u201cdirect \u2018 \u201cfrontal touching\u201d \u2019 \u201d of the suspect\u2019s genitals, and searches by police officers who are not of the same sex as the suspects. 956 F.2d at 298. Rodney did not conclude a search like the one conducted here should be considered intrusive enough to require specific consent.\nThe majority does not suggest that Rodney was incorrectly decided. Accordingly, the question arises whether looking into a suspect\u2019s pants is more or less intrusive than touching a suspect\u2019s genitals through clothing. The United States Court of Appeals for the Eleventh Circuit has addressed this issue. That court held that a search in a public airport terminal beginning with a frontal touching of a defendant\u2019s genitals through clothing exceeded the scope of the general consent. United States v. Blake, 888 F.2d 795, 801 (11th Cir. 1989). However, in a later case, that court, bound by its precedent in Blake, concluded that \u201ca brief and discreet look into the pants of a suspect by an officer of the same sex\u201d did not exceed the scope of a general consent to search for drugs. Hudson v. Hall, 231 F.3d 1289, 1298 (11th Cir. 2000). Instead, Hudson distinguished the search in Blake as more intrusive than a quick look into a suspect\u2019s pants. Id. Although Hudson was a 42 U.S.C. \u00a7 1983 civil suit, it directly addressed the question at issue in this case: whether a suspect\u2019s general consent to a body search for drugs may include a consent to a brief look into the suspect\u2019s pants. See Thirty-First Annual Review of Criminal Procedure, 90 Geo. L.J. 1087, 1176 n.246 (2002) (citing Hudson as applicable in the criminal context for the proposition that \u201cwhen no limit [is] placed on consent to search [a] person for drugs or weapons, police can search where drugs and weapons [are] kept on [the] person, including inside defendant\u2019s pants\u201d); see also Kidd v. Commonwealth, 38 Va. App. 433, 447, 565 S.E.2d 337, 344 (2002) (finding a suspect\u2019s general consent to a search of his body permitted the officer to pull away the suspect\u2019s underwear and look inside).\nThe majority opinion provides no application of the facts of this case to the factors found relevant in Jimeno and the federal cases applying it. Instead, it compares Officer Correa\u2019s search with the search conducted in State v. Smith, 342 N.C. 407, 464 S.E.2d 45 (1995), rev\u2019g per curiam 118 N.C. App. 106, 454 S.E.2d 680 (1995), cert. denied 517 U.S. 1189, 116 S. Ct. 1676, 134 L. Ed. 2d 779 (1996), a case involving a probable cause search. This comparison is not useful because as the majority correctly contends elsewhere in its opinion, Smith is inapposite. Resolution of this case hinges on whether there was sufficient evidence to support the trial court\u2019s conclusion that Officer Correa\u2019s search of defendant was within the scope of defendant\u2019s consent, not whether the search would have been reasonable if based on probable cause.\nThe majority also implies its decision is limited to the facts of this case. In actuality, the majority\u2019s analysis is far reaching and effectively dictates that a brief and discreet look into a suspect\u2019s pants can never be within the scope of that suspect\u2019s general consent to a search for drugs. The majority states \u201cdifferent actions by the'officer could have led to a different result\u201d and then suggests several different actions Officer Correa could have taken. The majority believes Officer Correa should have taken steps to shield defendant from onlookers or taken defendant to a \u201csecluded area\u201d or a police station even though there is no evidence that anyone was present during the search besides the two male officers, the defendant, and the driver; and the trial court specifically stated there was \u201cno opportunity for onlookers.\u201d Further, the majority believes Officer Correa should have asked defendant to clarify the scope his consent. Finally, the majority might have reached a different result if Officer Correa had specific information that drugs were hidden in defendant\u2019s genital area.\nIt appears the majority believes a brief and discreet look into a suspect\u2019s pants would be within the scope of a general consent to a search for drugs only if: 1) the officer obtains the suspect\u2019s specific consent to go to a secluded area or police station; 2) the officer obtains the suspect\u2019s specific consent to conduct a visual inspection; or 3) the officer has probable cause to search the suspect. Rather than conducting a case by case factual analysis of the scope of the general consent given by defendant, the majority has determined that in all cases involving a brief and discreet look into a suspect\u2019s pants, the United States Constitution requires specific consent or probable cause. This approach is inconsistent with federal precedent.\nIn conclusion, the trial court\u2019s findings of fact support its conclusion of law that Officer Correa\u2019s search of defendant was within the scope of defendant\u2019s consent.\nChief Justice PARKER joins in this dissenting opinion.\n. Moreover, assuming arguendo that it is helpful to compare Officer Correa\u2019s search to the search in Smith, the majority incorrectly suggests the search in Smith was more private. In Smith, the officer initially used his own body and a car door to shield the defendant from public view. 118 N.C. App. at 109, 454 S.E.2d at 682. However, when the defendant refused to cooperate, the officer \u201c \u2018walked to the front of [defendant] and held open his underwear . . . and slid it down.\u2019 \u201d Id. (alterations in original). After noticing a small paper towel under the defendant\u2019s scrotum the officer \u201c \u2018pulled his underwear farther.\u2019 \u201d Id. More importantly, the search this Court found reasonable in Smith, when it reversed the Court of Appeals opinion to the contrary, occurred at 1:30 a.m. in the left turn lane of an intersection. Id. I cannot agree with the majority that a 3:30 a.m. search in a private apartment complex parking lot is less private than a 1:30 a.m. search in a street intersection. Especially when the first search involves a look into the suspect\u2019s pants, but the second search involves sliding down the suspect\u2019s underwear.", "type": "dissent", "author": "Justice NEWBY" } ], "attorneys": [ "Roy Cooper, Attorney General, by William B. Crumpler, Assistant Attorney General, for the State-appellant.", "Jarvis John Edgerton, IV for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TIMOTHY STONE\nNo. 505A06\n(Filed 7 December 2007)\nSearch and Seizure\u2014 traffic stop \u2014 exceeding scope of generic consent to search for weapon and drugs \u2014 flashlight search of underwear\nThe trial court erred in a possession with intent to sell or deliver cocaine case by denying defendant\u2019s motion to suppress cocaine found during a routine traffic stop of a vehicle after an officer\u2019s flashlight search inside defendant\u2019s underwear even though defendant gave consent to a generic search for weapons or drugs, and defendant is entitled to a new trial, because: (1) the Fourth Amendment protects citizens from unreasonable searches and seizures; (2) the scope of a general consent search does not include consent for the officer to move clothing in order to observe directly the genitals of a clothed suspect; and (3) a reasonable person in defendant\u2019s circumstances would not have understood that his general consent to search included allowing the law enforcement officer to pull his pants and underwear away from his body and shine a flashlight on his genitals.\nJustice Newby dissenting.\nChief Justice Parker joins in the dissenting opinion.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 179 N.C. App. 297, 634 S.E.2d 244 (2006), finding error in an order denying defendant\u2019s motion to suppress entered 16 December 2004 by Judge Albert Diaz in Superior Court, Mecklenburg County, reversing a judgment entered 22 March 2005 by Judge J. Gentry Caudill, also in Superior Court, Mecklenburg County, and ordering a new trial. Heard in the Supreme Court 10 January 2007.\nRoy Cooper, Attorney General, by William B. Crumpler, Assistant Attorney General, for the State-appellant.\nJarvis John Edgerton, IV for defendant-appellant." }, "file_name": "0050-01", "first_page_order": 128, "last_page_order": 140 }