State v. Casey

State v. only intended to scare wife and had no killing intention of her; the scuffle between the parties shotgun went off accidentally. In this setting, and with credibility a matter jury, the court should involuntary have submitted manslaughter with appropriate instructions. at 185 S.E. 133. testimony

Defendant’s here that the gun went off when the barrel, victim jerked the and that he “didn’t pull trigger” and “didn’t mean to hurt anybody,” is evidence from which the jury could find that defendant had no intent to kill or inflict serious bodily circumstances, injury. Under these “and credibility with a matter jury, for the the court should involuntary have submitted manslaughter Wrenn, with appropriate instructions.” (defendant’s also supra. See supra Fleming, testimony that he did not intentionally cut victim sufficient to in- support voluntary manslaughter, despite State’s uniformly evidence which malice). showed

Because the remaining errors assigned relate to matters re-trial, not recur upon we do not discuss them. New trial.

Judges and Arnold concur. Martin

STATE OF NORTH CAROLINA v. THOMAS EDWARD CASEY

No. 8226SC83 (Filed 1982) 19 October §§ suspect justifiable 1. Searches and Seizures 18— oí detention —search and pursuant seizure controlled substances to consent Although “drug profile” defendant’s behavior fit within in that he (1) (2) airport city,” hurry arrived at an from a “source inwas a ex- changed packages verbally person greeting with another without him but read, holding up newspaper agents for him headline two could not have reasonably suspected activity the defendant of criminal based on the observed since the circumstances conduct was “too slender reed” to a seizure. However, officers, requests by where defendant assented to series coerced, arrested, agreed accompany was not threatened the officers OF COURT arrest, basement, under the specifically informed that he was not was

the finding support defendant voluntari- the court’s was sufficient to evidence Therefore, during ly go the evidence obtained to an office. consented to seizure, despite the lack not tainted an unlawful subsequent search was part of the officers. on the reasonable luggage § —consent 13— search of 2. Searches and Seizures finding supported trial that defendant voluntari- The court’s evidence carrying bags it to ly which he was where tended to the search of consented (2) ownership bags, alleged owner of in the denied show that defendant (3) upon being given, it ad- bags for his consent and was was asked still alleged consented and that defendant could owner had vised that search, agreed that the officers could search defendant refuse to consent to a bags possession. in his possession intent to or § of a controlled substance with sell 4— 3. Narcotics sufficiency of evidence deliver— motion to dismiss on to withstand defendant’s The was sufficient evidence intent to sell or deliver possession of a controlled substance with charge of to tended show that defendant 90-95 where in violation of G.S. plastic bag in physical possession dominion over a of and at least actual had knowledge of and where defendant’s substance was found which a controlled sell or the con- and defendant’s intent to distribute controlled substance easily inferred from the circumstances. substance could trolled Vaughn concurring. Judge entered Judge. Judgment Snepp, defendant APPEAL Court, County. Heard Superior 1981 in

20 August MECKLENBURG 1982. September Appeals in the Court Defendant, with charged posses- Edward Thomas substance, LSD, to with intent sell deliver a controlled sion Act, G.S. Substance North Carolina Controlled in violation trial, to the evidence suppress defendant moved Prior 90-95. in his bags possession from a set of was taken alleged which he unlawful, seizure at search and an warrantless pursuant Charlotte, hearing suppression A Airport, Municipal Douglas State, the held, by the testimony hearing presented and after ap- Defendant suppress. motion denied defendant’s court trial of the State’s at the close moved to dismiss trial and peared found the defend- jury and the motion was denied evidence. to sell of LSD with intent of possession the offense guilty ant motions, appeals. defendant From the denial of and deliver. I. Whether for review. two questions presents Defendant mo- on defendant’s hearing evidence at sufficient there was tion to suppress the findings of fact and conclusions of law that defendant had disclaimed ownership of the bags, had no expectation contents, of privacy as to their and that freely defendant and voluntarily consented to a search of the bags. II. Whether the trial court committed reversible error by denying defendant’s motion to dismiss when there was insuffi- cient evidence before the court that searched were those of the defendant or that the defendant had knowledge of their contents. Edmisten,

Attorney General by Assistant Attorney W. Dale Talbert, the State. for Batts,

B. R. appellant. for defendant

JOHNSON, Judge.

I (1) Casey contends that he was unlawfully seized in violation of his Fourth Amendment rights when he was taken of- ficer’s private office of basement the airport for an “in- (a) vestigatory detention” that was not based upon probable (b) cause and (2) neither nor brief based upon suspicion; his “voluntarily” accompanying the officer was not rele- (3) vant; that his to a consent search he carried was not voluntarily given but rather a illegal result stop and that; seizure and the lack of probable cause seize the bags and the implied illegal threat an search would ensue regardless, precludes finding a that defendant’s denial of owner- a ship voluntary abandonment or that the disclaimer of ownership extinguished his reasonable expectation privacy Hence, any the area searched. evidence or consent obtained from certainly defendant after his illegal detention the product of (sic). “poison tree”

The trial court held a voir dire on the defendant’s motion to at the of which it suppress findings close made of fact conclu- sions law. The of fact made findings court are conclusive Williams, on if v. appeal supported competent evidence. State Freeman, N.C. S.E. 2d 434 State 210, 244 S.E. 2d 680 OF COURT on voir dire tended to by the State presented

The evidence Sport Donnie Joe meeting observed that the defendant was show by Jack Douglas Airport aof concourse at Charlotte’s at the end Officer, Davis, Harkey, D. Police SBI R. a Charlotte Agent for the duty Municipal Airport purpose at Douglas who were on by the Both officers had been trained surveillance. of narcotics intercept- in the art of Enforcement Administration Drug Federal suspected acting drug passengers airline ing domestic from other narcotics into the area smuggling couriers Charlotte country. cities” in this “source they “taught to be on the Harkey testified that

Officer anything among people for that strikes us as unusual lookout hurry, that ex- people that are deplaning flights, people are That is a lot of conversation. packages without change baggage incoming for We were told to screen thing flights. one we look cities, did, to be on the just which we source flights our attention to suspicious behavior that would draw lookout for individuals.” was attracted to defendant

The officers’ attention headline to read rather newspaper up Sport held a because he yellow Sport push hello. The officers then observed saying than they into defendant’s hand as walked and briefcase plastic bag Davis heard Agent towards the claim area. together baggage No other conversation Casey Sport. directions to his car to give place. took terminal, him Casey officers and approached

As left the they Casey with him. officers speak agreed. if could asked a nar- police conducting officers then identified themselves Davis, Casey became investigation. According Agent to cotics as he the officers with his identifica- “visibly provided nervous” his, stated, Casey “No.” bags if the were Officer tion. When asked Casey any first he Harkey carrying if was contraband asked he carrying. then whose bag bags or briefcase and plastic bags. Harkey Mr. then left they were Officer Casey Sport’s stated if Davis asked defendant he would Sport Agent with and to talk inside the terminal. Davis ad- him to a basement office accompany they Casey asking he was not arrest but were under vised time, Harkey plain Davis and were in At cooperate. and was never weapons displayed No were clothes. Casey agreed touched. to physically accompany Davis to the base- office. ment interval, 8-10

During Harkey this minute Officer was conduct- ing Harkey an interview with Sport. testified voir dire during said, my Harkey “You can Sport search and that bags” then asked, your yellow “Can we search bag your briefcase.” Sport “Yes, you responded, you search if want those to.” taxi, Whereupon Sport took off in a leaving his driver’s license in Harkey’s hand. has Sport not been heard from since. Harkey

Officer returned to the basement area. The defendant was advised the officers that had Sport consented to a search of his luggage and the briefcase and bag. Agent Davis then ad- vised permit that he could refuse to a search. Defendant allowed the search. Both officers testified Casey kept bags in his possession 8-10 throughout minute encounter and never set them down until requested do so Davis. When the opened, Agent Davis discovered contraband in the yellow plastic bag. The briefcase personal contained papers and items belonging Sport. Defendant’s name appeared once in an address book contained the briefcase. Defendant was im- mediately arrested after the search. Neither officer claims to have known Mr. Sport day defendant before the of arrest. presented

The defendant no evidence during the voir dire failed, during any his cross-examination to elicit conflicting evidence material or relevant to the trial court’s findings of fact. The trial specifically court found that defendant of- told the his, ficers that the bags were not but belonged to Mr. Sport; that arrest; defendant informed that he was not under that he office; a request assented to go private that he was ad- vised that he could refuse to permit a search of the briefcase and addition, bag, and that he agreed the search. In the trial court made a separate finding that defendant was not coerced or any way, threatened in never placed under arrest and that no weapon displayed by was ever either of the officers.

The of findings fact trial court are supported by com- petent binding and are therefore on this court. State v. Williams, Freeman, State v. supra; supra. OF COURT

State fact, as a concluded the trial court findings its upon Based of law: matter

(1) defendant, owner- disclaimed having specifically as to expectation no reasonable bags, of the had

ship of their contents. privacy (2) voluntarily consented to a freely and the defendant by the officers. bags of the

search (3) are ad- by the officers found in the the materials in evidence.

missible is that his consent argument thrust of defendant’s The by the was tainted yellow bag and briefcase plastic search person “seizure” of officers’ warrantless law enforcement equates Defendant rights. of his Fourth Amendment violation request that the station and maintains police office with a private No inherently coercive. the officers was accompany he that than the this other proposition authority is cited Sec. 2.01 Pre-arraignment Procedure ALI Model Code (Tent. 1966). 1,No. Defendant contends Commentary Draft p. in that his an seizure subjected unreasonable that supported probable office was not in the basement detention suspicion nor brief based reasonable cause and neither engaged trafficking. he was narcotics type stop investigatory maintains that The State has only this the officer requires involved in case detention facts, upon objective person based suspicion, Texas, activity. in criminal Brown v. is engaged Thompson, L.Ed. 2d 703, S.E. 2d 776 occurred; but if a seizure is State that no seizure argues found, this existed in case that reasonable founded with the DEA Drug consistent Courier behavior based Profile, abstract of characteristics “informally compiled an drugs.” In its carrying illicit typical persons thought brief, use of the approve profile that this court urges for investigatory stops. a basis 105

State v. A legality of searches and seizures based the “Drug Profile” Courier has been the subject judicial much discussion since the inception Drug Enforcement Administration’s (DEA) narcotics program surveillance in the major nation’s air- ports.1 analyzed

This Court a remarkably similar encounter between Davis, Agent Harkey, Officer and another domestic air passenger Grimmett, 494, (1981). v. State 54 App. 284 S.E. 2d 144 The officers observed Grimmett companion and a near the bag- gage area in the pickup They Charlotte Airport. had been seen a Beach, days few earlier departing Daytona Florida. The of- ficers concluded that Grimmett’s behavior in the pattern airport fell within the “drug profile.” Harkey approached then terminal, himself, Grimmett in a public area outside the identified stated the of his purpose approach, and asked if Grimmett would with him. talk Grimmett first agreed Harkey, to talk to then subsequently agreed Harkey to accompany into the terminal. At no Harkey time did or display weapon use force or con- physical tact or threaten Grimmett. On the basis of the following language Ohio, v. Terry this Court found no seizure during the initial encounter:

“Obviously, not personal all intercourse policemen between Only and citizens involves ‘seizure’ of persons. when the of- ficer, by means of physical authority, force show of has in way some liberty restrained the of a citizen we conclude 19, 16, that a ‘seizure’ has occurred. 392 n. U.S. at 20 L.Ed. 2d 905, 16, 1879, at n. 88 at n. 16.” S.Ct. 501, 149, Ohio, 1,

Id. 284 S.E. 2d at v. 392 20 citing Terry U.S. L.Ed. 2d 88 1868 S.Ct. Casey’s Harkey initial encounter with and Davis was virtual- ly identical and cannot be considered a “seizure.” main Georgia, see Reid v. example, 1. For 448 100 U.S. Grimmett, curiam); v. (per App. 54 N.C. S.E. 2d 144 Cooke, (1981); v. State v. United States Mc App. 54 N.C. S.E. 2d Caleb, Westerbann-Martinez, (6th 1977); United v. States 552 F. 2d 717 435 F. Cir. (E.D. (2nd 1977); United States Supp. 615 F. Buenaventura-Ariza N.Y. (5th 1982) (en banc). Berry, 1980); United States 670 F. 2d 583 Cir. Cir. COURT OF an in- trip illegal is his to the basement office was

contention that a his consent to subsequent detention which tainted vestigatory his to the basement argued trip search. Grimmett had also that tainting seizure the evidence discovered there. a legality further intrusion in Grim- analyzing In mett, in- noted that our constitution prohibits this Court The were found to following legal seizures. vestigatory principles control: security an of a though upon personal intrusion “[E]ven arrest,’ Fourth Amend- of a ‘technical

citizen short stops intrusion United States requires ment that the be reasonable. 607, 95 45 L.Ed. 2d Brignoni-Ponce, S.Ct. (1975); v. Ohio. The reasonableness Terry requirement are less intrusive than traditional arrests are seizures that (a) facts, objective they supported that be articulable and Texas, U.S. 61 L.Ed. Brown S.Ct. (b) brief, York, they Dunaway v. New and (1979).” 824, 99 U.S. 499, 284 2d at 148. Id. S.E. to lack a reasonable and in Grimmett found

The officers in criminal ac- suspicion engaged articulable Grimmett behavior observed tivity upon “drug profile” based “further, more critical facts” learned including agents, the initial interview.2 during

brief. ^[1] Casey Therefore, does not seriously contend that first question whether it was based his detention was not activity. criminal and articulable Harkey’s “profile” consisted judice, In the case sub Officer 1) city”; a “source arrival from following characteristics: 3) 2) or hurry; exchange baggage in a people that are people conversation, any general, a lot of without packages in- agent’s draw the attention to that would behavior suspicious dividuals. two in- following: consisted officers’ observations near to other on a concourse speaking met without each

dividuals inability identify nervousness and facts were Grimmett’s extreme 2. These himself. Casey / a flight where had just Casey Atlanta landed. As ap- proached Sport, immediately he held a newspaper up headline face. Sport’s Sport yellow then handed bag. briefcase and area, They walked to a claim had baggage slight conversation walked out the terminal quickly door. After of- themselves, Casey ficers identified very became nervous and he shaking produced driver’s license. Asked if the own, carried were his they responded that belonged Sport.

The standard of “reasonable” “founded” suspicion to justify investigatory a limited seizure that the ex- requires court amine both the articulable known facts to the time officers at the they approach determined to and the activities of investigate Casey Sport, and and the rational inferences which the officers were entitled to draw from those facts. State v. Thompson, supra. Reid Georgia, U.S. L.Ed. (1980) curiam) (per controlling is on the narrow issue of ex- the suspicion istence of reasonable on the peti- facts of this case. The Reid tioner in to appeared agent “drug fit the so-called appeared and nervous en- profile” during initial Specifically counter. (1) the court below had it thought relevant Lauderdale, petitioner city”; arrived from Fort a “source (2) early he arrived in when activi- law enforcement morning diminished; ty companion is he and his to appeared agent they trying traveling be conceal the fact were and together; (4) they no had other than shoulder apparently luggage bags. The States Supreme agent United concluded that the Court not, law, as a matter of reasonably suspected peti- could have activity tioner of criminal basis the observed characteristics. Supreme three of as Court dismissed the characteristics very “a

describing large innocent category presumably travelers, who subject virtually would random seizures were the court to conclude that little foundation as there observation, justify could a As this case seizure.” to the other Supreme Court stated:

“[0]nly preceded fact that the another petitioner person occasionally they and looked backward at him as proceeded COURT OF . . . their conduct particular relates to the concourse

through companion and petitioner belief that agent’s [t]he they traveling were to conceal the fact that attempting unpar- more an ‘inchoate and a that was belief together, ‘hunch’,’ in- 392 U.S. at than fair or ticularized simply too slender experience, of his light ference in this case.” reed the seizure 2754. L.Ed. 100 S.Ct. at 448 U.S. at Casey, Harkey with of their initial encounter At the time did nor knowledge Sport no either prior Davis had they did arriving from. What they city Sport know which one met without greeting Sport know was another, newspaper contact reference to a making apparently headline, quickly and walked exchanged bags conversing without out of the terminal. im- may be

Two of the factors observed discounted “profile” mediately. The assumed that arrived from Sport officers down a concourse city” coming “source because was observed Agent Davis gate.3 direction the Atlanta arrival having profile jurisdictions drug courier 3. A ruled on the review judicial passenger from or is a consensus that the fact that a arrived demonstrates departing city” city designated for a as a “narcotics distribution center” or “source par by Agents weight analyzing legality no in DEA is entitled to little or of a 441, 894, airport stop. Georgia, v. 448 U.S. at 65 L.Ed. 2d at 100 S.Ct. ticular Reid (arrival very describing large from is a a at 2754 Fort Lauderdale circumstance travelers); 38, 40, Scott, category F. presumably innocent United States v. 545 (1977) (8th 1976), 1066, 784, 50 796 2 cert. denied 429 U.S. L.Ed. 2d 97 S.Ct. n. (“traveling Cir. Angeles, being Angeles, ‘that ma Los known Los is a from California [it (has) value”); heroin,’] jor probative area for Mexican little or no United distribution (6th 1979) Andrews, 563, (“Similarily, v. 600 F. 2d 566-567 Cir. travel from States Los any way may Angeles regarded suspicious. Angeles be as in Los indeed cannot center, major probability any given airplane but the that be a passenger narcotics distribution infinitesimally flimsy city drug is that a courier small. Such a fac from is justify help justify stopping —the of travelers from tor should not be allowed to —or Moreover, testimony city. experience largest agent with nation’s third our DEA the in other cases a DEA a any city country in makes whether there exists which us wonder major agent will not either narcotics center or characterize as a distribution way city major through drug pass on which couriers their to a narcotics distribu (5th 1980) 1155, center.”); Pulvano, 1151, v. 629 F. 2d n. 1 Cir. tion United States (“A used, profile has been as the review of the cases in this well direct Mathewson, testimony Agent tragic every us of the of DEA convinces fact that ma jor country population drug center in this has become home traffickers. It is therefore, difficult, weight.”); give much that factor United States v. 109 COURT OF they gotten testified that “later off Eastern determined he had Atlanta, Airlines 386 in Flight originating from New Orleans.” added.) significant also (Emphasis officers found it in a rapid through walked doors.4 We do not. pace terminal assuming arguendo, Even the officers were justified concluding Sport city,” had arrived from a “source this factor together “very with pace category presumably describes large innocent travelers” does not justify investigative and an seizure. No inference of involvement trafficking narcotics reasona- bly drawn from factors. those Harkey

Officer that one profile stated characteristic he was trained look for was “people exchange baggage packages without a lot of conversation.”5 also falls This under the wholly with category characteristics consistent innocent behav ior. (arrival

Buenaventura-Ariza, Miami, city,” supra apparent at 36 “source wholly “specific sup nervousness insufficient constitute and articulable” facts porting drug trafficking). a reasonable of involvement But see United (9th Post, 1979); Sullivan, v. 607 F. States 2d 847 Cir. United v. F. States 625 2d 9 (4th 1980), cert. denied U.S. 67 Cir. L.Ed. 2d 1374 drug profile stops A number of 4. courier have based been the manner in cases, passenger through airport which a walked terminal. In some the fact that passenger quickly by significant agents. walked was considered United (E.D. 1976); Rogers, Supp. Jefferson, v. 436 F. Mich. States United States v. (6th 1981) (DEA Agent thought F. 2d Cir. Markonni defendant walked faster “normal”); (E.D. Garcia, 1978); Supp. than United States v. 450 F. N.Y. United (5th 1981) Williams, curiam). cases, (per 647 F. States 2d 588 Cir. In other passenger slowly equally significant fact that walked was considered Mendenhall, 544, 564, agents involved. United States {Powell, J., (“Once terminal, concurring) 100 S.Ct. inside the respondent very gate ‘very, slowly’ scanned the entire area and walked toward the Id., Bowles, baggage [testimony Agent area. Anderson]”); at 10 United States v. (5th (5th 1980); Robinson, 2d 526 625 F. Cir. States v. United 625 F. 2d 1211 Cir. 1980). Harkey The third 5. characteristic listed Officer not contained in other reported drug profile complete For slightly varying cases. a list of four 598-599, profiles, Berry, supra, see United States v. 670 F. 2d at n. 17. A number of congruity have noted the “profiles.” courts lack of between United States v. Elmore, 1036, (5th 1979), 910, F. 595 2d 1039 Cir. cert. 447 denied U.S. 861, Rico, 2998 Berry, 100 S.Ct. v. supra; United States United States v. 594 (2nd 1979). having F. 2d Cir. Other courts drug reviewed a number of profile stops courier have the remarked chameleon nature of the factors con (E.D. Chamblis, stituting profile. the Supp. United States v. 425 F. Mich. 1977) (“One problem determining propriety stop solely with the of the on the basis COURT OF officers, by great the conduct observed particularized Of the Casey, verbally upon the fact that without placed weight headline for him to read. newspaper held Sport, up greeting fugitives to some that the headline referred The record indicates in North Carolina. captured who were Georgia unusual, it was in- the belief that While this conduct a fair activity was more “hunch” than criminal afoot dicative of inference, a seizure substantial reed and no more Georgia. in v. Supreme the Court Reid rejected than use approve “pro- this Court of the suggests The State United investigatory stops, asserting the file” as a basis already v. has done so in United States Court Supreme States However, Mendenhall, Mendenhall, Supreme in the Court supra. in approve profile use of the the determination not specifically did Grimmett, v. of a seizure. See State the reasonableness of of n. for discussion the n. S.E. at App. of analysis The direct the value of Mendenhall most precedential United profile airport stops of the drug use v. where the Georgia, was made Reid Court Supreme States a reasonable and articulate of held to lack agents profile observation of four activity based on the criminal Yet, use of Georgia, proper in Reid even characteristics. of the existence profile by determining a court drug courier directly addressed. suspicion was not Appeals of after an exhaustive The Fifth Court Circuit in that many Courier Profile cases scholarly Drug review recently concluded that: jurisdiction an administrative tool of nothing more than profile “[T]he a particular presence absence police. any legal is of no particular profile

characteristic reasonable suspicion. in the significance determination present profile factors in the met the is that not the defendant whether or vary Special Agent himself testified that case. Wankel profile from case to seem suspicions.”): particular anything profile that arouses in a case consists Westerbann-Martinez, government supra, at (“Giving States United doubt, “Drug Pro- either Courier must conclude that this Court benefit any help, is a tremen- amorphous or that there and unreliable to be of is too file” as to the Drug Administration Enforcement lack within of communication dous profile.”). in the factors COURT APPEALS OF ^{[*] [*] [*]} A does not focus on the profile particular circumstances at issue. profile Nor does such a in every indicate case that a specific individual who happens to some of match the profile’s vague characteristics is sufficiently involved in actions suspicious justify stop.

[*] ^{[*] [*]} factor, If an officer can why demonstrate some interpreted with due regard the officer’s experience and not merely was, in light presence of its on the profile, particular issue, circumstance of the facts at import such as to sup- port a that an individual was involved in drug smuggling, we do not believe that a court should downgrade the importance of that factor merely because it happens to be part Our profile. holding only we will no assign greater characteristic or lesser weight merely on, because the characteristic happens to be present from, or absent profile.”

[Emphasis original] United States v. F. Berry, 670 600-601 (5th 1982) (en banc). Cir. In the judice, case sub the fact that cer tain characteristics were claimed to part a drug courier pro way file no enhances the “quantum of individualized suspicion” usually a prerequisite a constitutional search and seizure. Martinez-Fuerte, 543, 560, United States v. 1116, 1130, And, above, as stated what particularized conduct observed the officers was “too slender a reed” to support a seizure under Reid Georgia. The could not agents reasonably have suspected defendant of activity criminal based on the observed circumstances.

B The next question be addressed is whether the further detention —the trip basement office justifiable. —was officers learned little during the initial interview to warrant ex- Therefore, their tending upon Casey’s intrusion privacy. the ex- istence of a seizure turns voluntariness consent togo the office. OF COURT remarkably to those similar are of this case the facts

Again, v. Mendenhall and United States v. Grimmett in both State “drug fit the pattern behavior alleged Mendenhall’s Defendant stopped Airport in the Detroit DEA agents profile.” and was then agreed She talk with them. her if she would asked a Later she consented to questioned. DEA office and to a taken found that specifically District Court In search. “[t]he Mendenhall ‘voluntarily to the office agents accompanied respondent ” 557, 64 L.Ed. 2d 446 U.S. at cooperation.’ apparent of spirit in a York, 392 U.S. v. New quoting Sibron at 40, 63, S.Ct. 917, 935, A S.Ct. 20 L.Ed. 2d finding this adopted Court Supreme United States fragmented DEA that the to the Office under trip on held binding review and a of Ms. Mendenhall’s was not violation these circumstances rights. Amendment Fourth Grimmett, too, court’s that findings trial

So of which the defend- of to each requests, made a series the officer assented, supporting held to be competent were ant Harkey Officer accompany that Grimmett consented conclusion that rejected argument This court Grimmett’s the basement. constituted a seizure. trip judice. for the case sub The trial court The same can be said Casey by assented to series of requests found specifically coerced, Harkey, was not threatened or Davis and Officer Agent to accompany the officers to the basement. agreed arrested and informed that was not under arrest. The Casey specifically Casey finding voluntarily go consented to trial court’s by binding evidence and supported competent office is Casey’s that he was seized argument when taken to review. must rejected. and Davis’ basement office Harkey Therefore, private during evidence obtained search subsequent seizure, by was not tainted an unlawful the lack of despite part on the of the officers where con- accompany sented them to basement.

C ^[2] next two arguments are addressed to the legality and seizure of the themselves. the search voir dire the found Upon replied, trial court “No” his, they if the bags belonged when asked and stated that OF APPEALS COURT finding, Based this the court concluded as matter Sport. Casey, having ownership law that disclaimed specifically had no reasonable as to the of their con- bags, expectation privacy tents.

Casey correctly that his denial of was not a argues ownership voluntary abandonment or of ownership extinguishing disclaimer his reasonable in the area searched. expectation privacy ag-

The test whether has been determining person by grieved through a search and seizure the introduction damaging evidence secured the search was set forth Illinois, Supreme Court of the United States Rakas v.

128, 143, 387, 401, (1978), 430 (1979). reh. denied 1122, 83, broadly, 439 U.S. 59 L.Ed. 2d 99 1035 Stated S.Ct. infringed the test is whether search and seizure has disputed an interest of the defendant which the Fourth Amendment was narrowly, to claim the designed protect. standing pro- Stated “legitimate tection of the Fourth Amendment is based in of of the individual that expectation privacy” asserting right Illinois, v. Katz v. United place. supra, citing the invaded States, Rakas (1967). 347, 576, 88 507 In S.Ct. Rakas, away the focus of its Supreme inquiry Court shifted it on an ex- “standing” placed from a technical definition of and in which the law of the location searched pectation privacy Melvin, App. Accord v. 53 recognizes legitimate. State N.C. 298, (1981); Jones, 421, v. 299 261 S.E. 2d 281 S.E. 2d 97 State N.C. (1979). (1980); 465, Alford, 242 v. 298 259 S.E. 2d State N.C. on to “legitimate” expecta- The went discuss Supreme Court tions of as follows: privacy must have a by of of law

“Legitimation expectations privacy Amendment, by either reference of the Fourth source outside or to under- of real or law concepts personal property by society. that are One standings recognized permitted to ex- right rights attaching property of the main 2, 1, Blackstone, Commentaries, others, Book ch. see W. clude or or controls lawfully possesses property and one who owns legitimate expectation privacy will in likelihood have a all by right [Emphasis virtue of this to exclude. added] 143-144, Illinois, n. 58 L.Ed. 2d at n. v. 439 U.S. at Rakas 430-431, n. 12. OF APPEALS COURT any did argues The State that the defendant not assert searched, but ownership possessory interest the items ownership. rather denied State cites State v. Melvin for simple that was proposition showing physically defendant holding the from the law enforcement officers seized bags evidence is incriminating not a sufficient demonstration any privacy in them. possessed legitimate expectation he v. its case distinguishable State Melvin is facts from the Melvin, In in possession the defendant was not of the judice. sub seized the search. The defendant was neither during items searched, merely passenger the car but owner nor driver of By property no in the items seized. con- rights claimed trast, Casey physical yellow possession was actual of the Harkey for the entire duration of the encounter with bag plastic bags never set the and Davis. The officers testified that any made effort to let them until to do go requested down or Casey in posses- themselves. wrongful the officers Nor so object to claim standing and therefore unable bags sion Greenwood, 273 S.E. 2d search. State N.C. See Crews, S.E. 2d 745 Casey had the to exclude all others During right the encounter possession of his and control. right virtue expectation privacy rise to a right gave legitimate This turn by vir- bags. expectation contents of the That not lost in the officers, at their informing request, tue of Cooke, Mr. supra. of the See State v. bags Sport. owner Therefore, interest of defendant had a Fourth Amendment the next we must question in area searched and the the privacy voluntarily he to the search is whether consented determine that area.6 Casey accompany consented to finding addition its In office, Casey con- court found that the the trial

Davis to basement contra- bag containing the briefcase and to the search of sented by court are specifically found the trial following facts band. by evidence: competent supported Indeed, sufficiency evidence argument of the addressed to the 6. the State’s Casey possession with intent of LSD the conviction for against trial to Casey’s sufficiency “possessory” in- premised on the sell or deliver bags. power of the intent to control —the contents and

terest —his

State v. by airport In an office was advised defendant officers that had consented to a Sport luggage search bag. and of briefcase and He officers agreed searched, bags. They search alleged could con- traband was found in the plastic bag. conflict,

Although there was some presented by the evidence the State also tends to show that was advised that could refuse to consent a search by Agent Davis. The trial court made findings that the defendant was not coerced or threatened way. any dire Upon voir to determine the voluntariness of Casey’s consent to a search of his property, to be weight given court, peculiarly the evidence is a determination the trial are findings conclusive when supported compe- Grimmett, Little, tent evidence. 234, supra; 270 N.C. (1967). Bustamonte, 154 S.E. 2d 61 See also Schnecklotk v. Although Casey correctly assigned error the trial court’s conclusion of law that he had expectation privacy no reasonable in the bags, we find no violation of his Fourth Amendment rights. above, As illegal stated there no seizure to taint the subse- quently voluntarily discovered evidence and defendant con- Therefore, sented to the search of the briefcase and plastic bag. suppress motion to was properly denied and his assign- ment of error as to consent is without merit.

[3] Defendant next assigns error trial court’s denial of his motion to dismiss at close of the evidence. State’s argues that his motion to granted dismiss should have been because the State to present failed sufficient evidence that he knew he carried contained controlled substance and because to present the State failed sufficient evidence that he in sell tended to or deliver a controlled substance. We disagree. The North Supreme recently Carolina Court summarized the sufficiency test of the State’s evidence is to be judged upon a criminal defendant’s motion to dismiss.

“The of the sufficiency test a criminal ac- tion is the same whether the motion raising issue is one dismissal, See, directed verdict or judgment of nonsuit. Powell, 95, 98, 114, v. 299 e.g., State N.C. 261 S.E. 2d 117 COURT OF 116

State v. 234, 403, 407, Hunt, 222 2d death S.E. 289 N.C. v. State (1976). vacated, That has ar- 429 809 test been U.S. sentence whether, States Court Supreme the United ticulated the favorable to light in the most the evidence viewing ‘after have found trier of fact could any rational prosecution, doubt.’ beyond crime elements essential (1979). 307, 319 (Emphasis v. Virginia, Jackson held that its traditional formulation has original.) This Court in given same in substance as Jackson. test is 835, 500, 504-505, Jones, 279 2d 838 303 S.E. v. State N.C. (1981). occasionally employed our have Although cases test that ‘there must substance our is language different of- of all elements substantial evidence material jury guilt to create a on defendant’s question fense’ order In on ruling question, or innocence. Id. this ‘[t]he State; most favorable to light be considered every every is entitled to reasonable intendment and State therefrom; to be drawn reasonable inference contradictions jury are for the to resolve and do war- discrepancies not admitted, dismissal; actually and all of the evidence rant incompetent, or is favorable to competent whether in ruling is to the court mo- State be considered Powell, 99, 299 at 261 at supra, tion.’ State v. N.C. S.E. 2d 117.” 534, 537-538, 500, Locklear, 304 284 2d 502 S.E. N.C. with which is charged offense has three elements. One, Aiken, of a v. 286 possession must be substance. State there (1974). Two, 209 S.E. 2d the substance must be a

N.C. Three, there must be intent controlled substance. distribute 90-95(a). G.S. sell the controlled substance. 191, 192, Davis, 201 S.E. App. In State N.C. 2d (1974), (1974), cert. denied N.C. S.E. this Court held: case leading Harvey,

“In the 187 S.E. (1972), Supreme 2d 706 Court held that an had accused possession of a controlled substance within the meaning law ‘when he has power both intent control its or use.’ 187 S.E. 714. disposition Id. 2d at The re- Casey State v. quirements power necessarily intent imply that a defendant must be aware of presence of an if illegal drug he is to be convicted of possessing it.” The uncontradicted evidence jury before the was that defendant had at least actual physical possession of and dominion over plastic bag which the controlled substance was found. Both law enforcement officers testified that Mr. Sport either “pushed” or “handed” the bags Casey Casey and that con- tinued to hold onto the bags throughout the encounter with the officers. This evidence is more than sufficient to infer the defend- ant’s power and intent to control the disposition or use of the bags and their contents.

The State must also present some evidence aware of the presence Davis, of the controlled substance. State v. However, supra. the defendant’s knowledge can be inferred from the circumstances.

“Where such materials are found on the premises under the accused, fact, itself, control of an this in and of gives rise to an inference of knowledge possession be suffi- carry cient to the case jury to the charge on a of unlawful added.) possession.” (Emphasis State v. Harvey, supra, N.C. at 187 S.E. 2d at 714. most, strenuously Defendant contends that at he was mere However, bailee of containers to Mr. belonging Sport. upon mo- nonsuit, judgment tion for as of must considered in the light every most favorable to the State and reasonable in- ference arising therefrom given must be to the State. Contradic- tions and do discrepancies not warrant dismissal. State Locklear, Therefore, supra. the fact that the controlled substance defendant, was found within bag under the control of the together with his unusual actions within the airport and his nerv- ousness when questioned the law officers as to enforcement whether there was contraband in bag, when viewed State, light most favorable to the raises an inference knowledge controlled substance’s sufficient presence carry the case jury.7 hereby “drug profile” 7. We do not endorse the use of the to establish seizure; suspicion justifying investigatory merely an but note that COURT OF there was insufficient evidence that argues also to sell or distribute controlled substance. intended the de-

Although proving the State has burden substance, sell or deliver the controlled it fendant intended to ordinary may rely circumstantial evidence such as the possessed and the nature of amount of controlled substance Roseboro, labeling carry its the burden. State packaging (1981), denied, 284 S.E. 2d 725 disc. rev. App. 55 N.C. (1982); Cloninger, 289 S.E. 2d 566 N.C. App. N.C. Mitchell, 27 App. S.E. 2d 192 denied, (1975), 222 S.E. disc. rev. 289 N.C. S.E. 2d case, in ex- possessed In this there was evidence that 25,000 individually units LSD wrapped dosage ap- cess of commercially packaged. peared to

This evidence was sufficient to infer the defendant’s intent and to overcome his sell distribute the controlled substance to dismiss. motion assignment of is merit.

This error without Affirmed. and Hill concur.

Judges VAUGHN concurring.

Judge VAUGHN court’s ample support I there was agree that which, turn, conclusion that defend- of fact findings by “freely voluntarily consented to a search of ant was, properly suppress consequently, The motion to the officer.” was sufficient take I the evidence agree further denied. are questions on these two jury. Our decisions the case I If stop. that would it and it there appeal, dispositive majority, necessary matters discussed to reach other I sure I would reach the same conclusions. am not on the issue in this be considered the officers case observed characteristics bags. presence of contraband awareness of defendant’s

Case Details

Case Name: State v. Casey

Court Name: Court of Appeals of North Carolina

Date Published: Oct 19, 1982

Citation: 296 S.E.2d 473

Docket Number: 8226SC83

Court Abbreviation: N.C. Ct. App.