State v. Fuller, ___ N.C. App. ___, 809 S.E.2d 157 (Dec. 19, 2017)

(1) In this drug case, a search of the defendant’s person was a proper search incident to arrest. An officer stopped the defendant’s vehicle for driving with a revoked license. The officer had recognized the defendant and knew that his license was suspended. The officer arrested the defendant for driving with a revoked license, handcuffed him and placed him in the police cruiser. The officer then asked the defendant for consent to search the car. According to the officer the defendant consented. The defendant denied doing so. Although an initial search of the vehicle failed to locate any contraband, a K-9 dog arrived and “hit” on the right front fender and driver’s seat cushion. When a second search uncovered no contraband or narcotics, the officer concluded that the narcotics must be on the defendant’s person. The defendant was brought to the police department and was searched. The search involved lowering the defendant’s pants and long johns to his knees. During the search the officer pulled out, but did not pull down, the defendant’s underwear and observed the defendant’s genitals and buttocks. Cocaine eventually was retrieved from a hidden area on the fly of the defendant’s pants. The defendant unsuccessfully moved to suppress the drugs and was convicted. On appeal, the court rejected the defendant’s argument that the strip search could only have been conducted with probable cause and exigent circumstances. The court noted however that standard applies only to roadside strip searches. Here, the search was conducted incident to the defendant’s lawful arrest inside a private interview room at a police facility.

(2) The search of the defendant’s person, which included observing his buttocks and genitals, was reasonable. The defendant had argued that even if the search of his person could be justified as a search incident to an arrest, it was unreasonable under the totality of the circumstances. Rejecting this argument, the court noted that the search was limited to the area of the defendant’s body and clothing that would have come in contact with the cushion of the driver’s seat where the dog alerted; specifically, the area between his knees and waist. Moreover, the defendant was searched inside a private interview room at the police station with only the defendant and two officers present. The officers did not remove the defendant’s clothing above the waist. They did not fully remove his undergarments, nor did they touch his genitals or any body cavity. The court also noted the suspicion created by, among other things, the canine’s alert and the failure to discover narcotics in the car. The court thus concluded that the place, manner, justification and scope of the search of the defendant’s person was reasonable.

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