Pubdate: Wed, 06 Sep 2006
Source: Charlotte Observer (NC)
Copyright: 2006 The Charlotte Observer
Contact:  http://www.charlotte.com/mld/observer/
Details: http://www.mapinc.org/media/78
Author: Gary D. Robertson, Associated Press
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)

SEARCH OF MAN'S PANTS REJECTED

Judges Say Suspect's Consent Didn't Include A Look Inside Trousers

RALEIGH - A man convicted of possessing cocaine after a 
Charlotte-Mecklenburg police officer found drugs by shining a light 
down his pants should get a new trial because the search was 
unreasonable, the state Court of Appeals ruled Tuesday.

The ruling in favor of Timothy Stone may serve as a warning to 
officers to more exactly describe the scope of their searches before 
they physically examine a suspect.

Officers said they spotted and recovered a pill bottle of crack 
between Stone's groin and testicles. A court sentenced him in March 
2005 from roughly 10 1/2 years to 14 years in prison for drug and 
habitual felon convictions.

"We conclude that a reasonable person in defendant's circumstances 
would not have understood that he would be subjected to an inspection 
of his genitals," Judge Linda McGee wrote in the majority opinion 
that says a trial court judge erred by failing to suppress the 
evidence, the key element in the conviction.

Charlotte-Mecklenburg police Officer R.E. Correa said he spotted a 
speeding car with Stone inside leaving a hotel at 3:30 a.m. in 
October 2002. Correa pulled up next to the car when it stopped in a 
parking lot.

Stone was in the passenger seat, moving from side to side, according 
to the opinion. The driver appeared nervous and his hands were 
shaking. The officer had received a tip that Stone was a drug dealer, 
according to the opinion.

Stone, who was wearing a jacket and a pair of drawstring sweat pants, 
stepped out of the car and told Correa he had no drugs or weapons. 
Correa asked whether he could search Stone, who agreed.

Correa found more than $552 in cash in Stone's sweat pants pocket and 
asked again whether Stone had any drugs. Stone again said no but 
allowed the search to continue.

With another officer now at the scene, Correa pulled the pants away 
from Stone's body and aimed his flashlight at his groin area.

Stone objected, but the two officers already had viewed the white cap 
of what appeared to be a pill bottle along his groin, the opinion 
said. The officers handcuffed Stone before Correa retrieved the 
bottle, which contained 26 grams of crack.

In court, Stone sought to have the evidence suppressed.

The officer "asked for the consent to search in the vaguest way 
possible," said Jarvis Edgerton IV, a Raleigh attorney representing 
Stone. "No reasonable person thinks that's what they're consenting to."

Mecklenburg Superior Court Judge Albert Diaz ruled that given the 
circumstances, the time of night and cash found on Stone, there was 
sufficient reason to suspect that Stone was hiding contraband, even 
under his clothes.

Stone appealed after his conviction, arguing the search exceed the 
scope of his consent. Correa didn't obtain specific approval to 
inspect his genitals, McGee ruled in saying a reasonable person would 
not have expected such an examination.

Although Correa had arrested drug suspects before with drugs in their 
groin area, he testified at the suppression hearing that he "was not 
really expecting to find anything, honestly," according to the opinion.

Judge Rick Elmore joined McGee in the opinion.

The state can appeal the ruling to the state Supreme Court. The state 
Attorney General's Office has not decided yet what it will do, 
spokeswoman Noelle Talley said.
- ---
MAP posted-by: Jay Bergstrom