Pubdate: Mon, 29 May 2006
Source: Fayetteville Observer (NC)
Copyright: 2006 Fayetteville Observer
Contact:  http://www.fayettevillenc.com/
Details: http://www.mapinc.org/media/150
Author: Paul Woolverton

COURT LIMITS RIGHTS TO DRIVER'S SEAT?

Deputies stopped two men in a minivan in Robeson County in 2003 and
found 22 pounds of cocaine.

Both men pleaded guilty in 2004 to drug trafficking. Each received a
minimum sentence of 14 years, seven months.

But now the driver may go free while the passenger has to serve out
his sentence. The State Court of Appeals in April said the search of
the minivan was illegal. That ruling suppressed the cocaine as
evidence against the driver, Tony S. Johnson. His lawyer, Hubert N.
Rogers, thinks that will destroy the case against him.

But passenger Clegon Rose will have to stay in prison, the Court of
Appeals said this month.

As a passenger, the court said, Rose had no right to dispute the
search.

So the evidence that can't legally be used against the driver can send
the man in the passenger seat to prison. That's not fair, said Rose's
appellate lawyer, Lisa Miles of Durham. "I am deeply disturbed in the
discrepancy between the cases, and it absolutely makes no sense,"
Miles said. "If anybody had knowledge of what was in that car, it was
clearly the driver.

For him to be getting relief while my client was a hapless passenger
is just ridiculous." Rogers, who defended both men in Robeson County
Superior Court, expects the Rose appeal to go to the state Supreme
Court.

"If the Johnson case remains as it is, that the cocaine was illegally
seized, then I think that the state would still, nevertheless, be
prevented from introducing it in the prosecution against Rose," Rogers
said. According to court records, Robeson County Detective Ray Lovin
and Deputy James Hunt stopped the minivan on Interstate 95 just south
of Lumberton because a bracket partly obscured the license plate.

Lovin wrote Johnson a warning ticket and asked Johnson if he could
search the van. "Yeah," Johnson said. He opened the back hatch for the
deputies. Hunt and Lovin searched for drugs and other contraband.
According to Lovin's testimony, Hunt found the cocaine hidden inside
the van's wall. It was between the sheet metal and an interior plastic
panel.

To get at it, Lovin said, Hunt had to pull off a piece of rubber that
was glued to the interior wall, then pull back the plastic of the
interior wall. The Court of Appeals said Hunt went too far.

Permission to search a car does not include permission to dismantle or
otherwise damage the vehicle, the ruling said. Doing so violated
Johnson's rights against unauthorized searches under the Fourth
Amendment of the U.S. Constitution. The ruling kicked the cocaine out
of the case. It will be hard for Rose to get a similar ruling to
suppress the cocaine, said Duke University law professor Robert
Mosteller. He cited a 1978 decision by the U.S. Supreme Court that
says passengers in a car don't have the same right to privacy as the
owner or driver does. According to the ruling and a 1978 Washington
Post story on a similar case, Frank L. Rakas and Lonnie L. King were
passengers in a car suspected as the getaway vehicle from a robbery in
Bourbonnais, Ill.

The police stopped and searched the car, finding bullets locked in the
glove compartment and the gun from the robbery under the front
passenger seat. Rakas and King were convicted of the robbery.

Rakas and King protested that the search violated their constitutional
rights. They lost.

"This creates a situation in which you can stop a car illegally, and
as long as you let the driver go, you can prosecute everybody in the
car," Mosteller said.
- ---
MAP posted-by: Derek