September-October 2006 Volume 25, Issue 5 Page 2 of 10

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1 September-October 2006 Volume 25, Issue 5 Page 1 of 10 Contents Fourth Amendment/Search and Seizure/Consent Search Fifth Amendment/ Interrogation/ Miranda Juvenile Rights New Sex Offender Legislation Residential Restrictions: Not in Effect Until December 1, 2006 Drug Tax Freeloaders/ Trespassers vs. Paying Occupants/Tenants Child Custody Disputes Between Parents Limited Role of Law Enforcement Forward: In this issue, we review two recent cases from the North Carolina Court of Appeals. In the Stone case, the court held that an officer exceeded the scope of the suspect s consent when he conducted a visual inspection of the suspect s genital area. In the case entitled In the Matter of W.R., the court held that a fourteen-year old was in custody and should have been advised of his constitutional and juvenile rights before he was questioned by the school resource officer, along with the principal and assistant principal. We have also included a short article on the legislation, effective 12/1/06, which prohibits sex offenders from residing within 1,000 feet of a school or child care center. We respond to recent questions we have received about the Drug Tax, as well as the appropriate response to calls involving trespass/eviction issues. Finally, we have reprinted an article from an earlier edition of the Police Law Bulletin that deals with the limited role of law enforcement officers when faced with child custody disputes BRIEFS: NORTH CAROLINA COURT OF APPEALS: Fourth Amendment/Search and Seizure/Consent Search: State of N.C. v. Stone, N.C. App., 634 S.E.2d 244, (2006). Facts: On October 7, 2002, at approximately 3:30 a.m., a CMPD officer was on patrol in an area with a high incidence of drug and prostitution offenses. The officer observed a vehicle leave the Villager Lodge motel and began following it. According to the officer s estimate, the vehicle was traveling 50 mph, approximately 15 mph over the speed limit. The vehicle pulled into the parking lot of an apartment complex. The officer pulled in behind the vehicle and shone his spotlight on the vehicle. The license plate on the vehicle was displayed on the rear window instead of the bumper. The vehicle was occupied by the driver and a passenger (the defendant Stone), who was moving from side to side. When the officer approached the driver s window, the driver appeared very nervous, his hands were shaking, and he would not look at the officer. The passenger, Stone, was not wearing a seatbelt and the officer recognized him, having previously received an anonymous tip that he was a drug dealer. The officer asked Stone for identification, but he could not produce one. The officer asked Stone to step to the rear of the vehicle and he complied. The officer then asked Stone if he had any drugs or weapons on his

2 September-October 2006 Volume 25, Issue 5 Page 2 of 10 person. When Stone said No., the officer asked for consent to search and Stone gave consent. Stone was wearing a jacket and a pair of drawstring sweat pants. During the initial search, the officer found $ in cash in the lower left pocket of Stone s pants. The officer told Stone that it was not safe to carry such a large amount of cash and again asked him if he had anything on him. Once again, Stone denied that he had any drugs or weapons and authorized the officer to continue the search. The officer checked the rear of Stone s sweat pants and then moved his hands to the front waistband. At that point, the officer pulled the pants away from Stone s body and trained his flashlight on Stone s groin area. Stone objected, but the officer (and back-up officer) had already observed the white cap of what appeared to be a pill bottle tucked in between Stone s thigh and testicles. The officer had made several arrests in the past after finding drugs concealed in a suspect s groin area and he suspected that the pill bottle contained contraband. He and the back-up officer grabbed Stone and handcuffed him. The officer then retrieved the pill bottle, which contained 130 crack rocks weighing 26 grams. Stone was charged with possession with intent to sell or deliver cocaine. Prior to trial, Stone filed a motion to suppress the evidence found during the search. The motion was denied and Stone was convicted at a later trial. He appealed the conviction and the ruling on the motion to suppress to the North Carolina Court of Appeals. Issue: Did the officer s inspection of the defendant s genital area during the search exceed the scope of the consent given by the defendant? Rule: Yes. The officer exceeded the scope of consent when he inspected the defendant s genitals. Discussion: The standard for measuring the scope of a suspect s consent under the Fourth Amendment is that of objective reasonableness what would a reasonable person have understood by the exchange between the officer and the suspect? In this case, the court held that the officer exceeded the scope of defendant Stone s consent when he inspected Stone s genitals. The basis for the court s holding was as follows: 1. The officer did not obtain specific consent to visually inspect Stone s genitals. Instead, the officer only obtained general consent to search his person. 2. Given the scope of the first search by the officer, a reasonable person would not have expected the second search to include such an intrusive inspection of the genital area. 3. The fact that Stone did not expressly limit the scope of the second search did not make the second search reasonable. Because Stone could not have reasonably expected that the officer would visually inspect his genitals, he had no reason to limit the scope of the second search. Stone objected when the officer pulled his sweat pants away from his

3 September-October 2006 Volume 25, Issue 5 Page 3 of 10 body and trained the flashlight on his genitals. This reaction demonstrated that Stone could not have reasonably expected such an intrusive search. The court also examined the officer s justification for the search. At the suppression hearing, the officer testified that when he asked Stone for consent to search the second time he was not really expecting to find anything, honestly and that he searched everywhere as part of standard procedure. Therefore, the court held that the officer did not have any reason to suspect that Stone was concealing weapons or contraband near his genitals; rather, the officer conducted genital searches as a matter of course. In addition, prior to inspecting Stone s genitals, the officer had already conducted a full search which did not reveal the presence of any weapons or contraband. Therefore, the officer did not reasonably expect to find anything on the second search and had little justification for conducting a visual inspection of Stone s genitals. The discovery of cash in Stone s pocket, although suspicious, did not authorize such an intrusive search. In summary, the court concluded that a reasonable person in Stone s circumstances would not have understood that he would be subjected to an inspection of his genitals. Furthermore, the need for an inspection of Stone s genitals was outweighed by the significant invasion of his personal rights. The court reversed the conviction and ordered a new trial. NOTE: There was a dissenting opinion in the case in which the dissenting judge found that the search of the defendant was objectively reasonable and within the scope of his consent. Because of that dissenting opinion, it is likely that the North Carolina Supreme Court will review the case. The Police Attorney s Office will provide an update on the case in the future. In the meantime, officers should obtain specific consent before searching under the clothing of a suspect, unless the officer possesses another sufficient legal justification for the search, such as a warrant or probable cause to believe contraband is present. Return to Top Fifth Amendment/Interrogation/Miranda - Juvenile Rights: In the Matter of W.R., N.C. App., S.E.2d, 2006 LEXIS 2028 (2006). Facts: On August 19, 2005, the principal of Allen Middle School in Greensboro received a call from a parent of one of the students at the school. As a result of the call, the principal and assistant principal took W.R., a fourteen-year old juvenile, out of class and escorted him to the assistant principal s office. They asked him several times if he had anything in his possession that he should not have. W.R. initially stated that he did not. At some point during the initial questioning, the school resource officer joined the principal and assistant principal in their questioning. After approximately fifteen minutes, the officer conducted a basic search to ensure W.R. was not carrying a weapon. The search did not reveal any weapons.

4 September-October 2006 Volume 25, Issue 5 Page 4 of 10 During the questioning, the principal, assistant principal, and resource officer each left the office to conduct other aspects of the investigation. However, W.R. was never left unsupervised and the officer was present in the office during most of the time. After talking to other students, the assistant principal confronted W.R. with allegations that he had brought a knife to school the day before. W.R. admitted that he had possessed a knife the day before, both at school and on the bus. By that time, approximately thirty minutes had elapsed since W.R. had first been brought to the office and he had been subjected to questioning, off-and-on, during that time. During the investigation, the principal discovered that W.R. lived outside the school district and it was decided that he would not be allowed to return to class. Instead, W.R. stayed in the principal s office, under the supervision of the resource officer, until his mother arrived approximately ninety minutes later A petition was filed in juvenile court alleging that W.R. violated G.S (d) by possessing a weapon on school property. At the adjudication hearing, W.R. s admission was allowed into evidence without objection. W.R. was adjudicated delinquent and placed on probation. He appealed to the North Carolina Court of Appeals, claiming that he should have been advised of his rights when he was questioned. Issue: Should the juvenile have been advised of his constitutional (Miranda) and statutory rights when he was questioned in the office by the principal, the assistant principal, and the school resource officer? Rule: Yes. Under the totality of the circumstances, the juvenile was in custody for purposes of the interrogation and, therefore, he should have been advised of his constitutional and statutory rights. Discussion: Under G.S. 7B-2101(a), a juvenile who is in custody must be advised of the following rights prior to questioning: 1) he has the right to remain silent; 2) any statement he makes can and may be used against him; 3) he has a right to have a parent, guardian, or custodian present during questioning; and 4) he has a right to consult with an attorney and one will be appointed for him if he is not represented and wants representation. These rights, and the rights protected by Miranda, only apply to custodial interrogations. The test for determining whether or not a juvenile is in custody is whether a reasonable person in the juvenile s position, under the totality of the circumstances, would have believed that he was under arrest or was restrained in his movement to the degree associated with a formal arrest. The test is an objective one, based on the reasonable person standard, and is applied by the courts on a case-bycase basis. A court should consider a juvenile s age in ruling on the admissibility of a confession; however, age itself will not preclude the admission of a confession absent mistreatment or coercion on the part of the police. Also, in the case of In re Phillips, 128 N.C. App. 732, 497 S.E.2d 292, disc. review denied, 348 N.C. 283, 501 S.E.2d 919 (1998), the North Carolina Court of Appeals held that a juvenile is not

5 September-October 2006 Volume 25, Issue 5 Page 5 of 10 in custody when he is questioned by school officials in a school office and no law enforcement officers or agents of law enforcement are present. In this case, the court distinguished the situation from that present in the Phillips case. Here, the fourteen-year old was repeatedly questioned over a period of thirty minutes, not only by the principal and assistant principal, but also by the school resource officer. The questioning took place in the assistant principal s office and the juvenile was kept in the office under the supervision of the resource officer. He was not free to leave and was detained under the officer s supervision until his mother arrived after approximately ninety minutes. Originally, the juvenile repeatedly denied having anything with him on school property the day before. It was only after the officer joined in the questioning and searched the juvenile that he admitted having the knife the day before. Based on the totality of the circumstances, the court held that a reasonable person in the juvenile s position would have believed that he was restrained in his movement to the degree associated with a formal arrest. As a result, he was in custody and should have been advised of his constitutional and statutory rights. NOTE: This case involved a situation which the court characterized as custodial. It is possible for an officer to conduct a noncustodial interview of a juvenile suspect in a school setting. The totality of the circumstances that a court will examine to determine whether a juvenile was in custody and whether a confession was voluntary includes the following: Was the juvenile told that he/she was not under arrest? Was the juvenile told that he/she was free to return to class? What was the age and maturity level of the juvenile? What was the intelligence level/grade level of the juvenile? What was the juvenile s prior experience with the criminal justice system? What were the circumstances surrounding the questioning? What was the location of the questioning? Was there any restraint of movement involved? Return to top NEW SEX OFFENDER LEGISLATION RESIDENTIAL RESTRICTIONS: NOT IN EFFECT UNTIL DECEMBER 1, 2006 During the past legislative session, the General Assembly made significant changes to the laws dealing with sex offenders. Included was a new statute, G.S , which makes it a Class G felony for a registered sex offender to knowingly reside within 1,000 feet of the property on which any public or nonpublic school or child care center is located. For purposes of the statute, a residence is established when a registered sex offender does any of the following:

6 September-October 2006 Volume 25, Issue 5 Page 6 of Purchases a residence or enters into a contract to purchase the residence; 2. Enters into a written lease contract for the residence; or 3. Resides with an immediate family member (child, sibling, or parent). NOTE: This law does not go into effect until December 1, In addition, the law does not apply to a registered sex offender who establishes a residency prior to that date, even though the residence is located within 1,000 feet of a school or child care center. Return to top DRUG TAX The Police Attorney s Office has recently received questions concerning the collection of the Unauthorized Substance Taxes, more commonly known as the drug tax. This tax is an excise tax levied on controlled substances, including marijuana, cocaine, and illicit spirituous liquor and mash. This is not a criminal penalty, but a tax collected by the North Carolina Department of Revenue pursuant to a tax warrant. The statute has been significantly modified from its original version and, in its current form, has been upheld by the Fourth Circuit Court of Appeals as a civil tax rather than a criminal penalty. CMPD officers have no authority to collect the tax or any outstanding balance owed to the Department of Revenue. Typically, if an individual is arrested on drug charges and has a significant amount of currency on their person, that currency may be seized by the CMPD as evidence of the crime and placed into property control. The Department of Revenue may then serve a tax warrant on the CMPD, which is based on a statutory rate according to the weight of the drugs seized. Agent Bobby Hammond is the area Department of Revenue representative who serves tax warrants and seizes currency. If an officer makes a voluntary contact with an individual and discovers that the individual is in possession of currency and has an outstanding tax liability, the officer may not seize any currency or detain that individual for the sheriff or the Department of Revenue solely for the purpose of seizing the currency. The officer may, however, contact Agent Hammond or a sheriff s deputy if the individual is willing to voluntarily remain at the scene and accept service of the tax warrant. Also, if an officer arrests an individual for a non-drug related offense and the individual is in possession of a large amount of currency, the officer may not seize the currency and turn it into property control as Evidence, Found, or Other, unless the currency is evidence of the offense. Rather, the officer should turn the currency over to jail personnel, who will then make a determination as to whether or not there is an outstanding tax warrant and proceed accordingly. Please note the following from Directive , Submitting Impounded Property to Property and Evidence Management Division:

7 September-October 2006 Volume 25, Issue 5 Page 7 of 10 M. Impounded coin and currency will be submitted on separate Property Report Forms, not combined with other property (wallets, checkbooks, etc.). 1. Cash, currency and other negotiable instruments will be impounded as Evidence, Found, or Other. 2. Cash, currency and other negotiable instruments must never be impounded for Asset Forfeiture or for payment of the North Carolina Unauthorized Substances Tax ( drug tax ) law. a. State law provides that only an agent of the North Carolina Department of Revenue or a Sheriff may collect Unauthorized Substance Tax assessments. b. Charlotte-Mecklenburg Police Department officers are not authorized to seize money from individuals for payment of any outstanding unauthorized substances ( drug ) tax assessments. Please feel free to contact the Police Attorney s Office, or the Asset Forfeiture Unit, if you have questions about this tax. Return to top FREELOADERS/TRESPASSERS vs. PAYING OCCUPANTS/TENANTS Questions continue to come up regarding the appropriate response to calls involving requests for assistance in removing an individual from a house or apartment where the individual has been staying for a period of time. The issue is whether the person to be removed is a trespasser or a tenant. If the person is a trespasser, the officer s role is to take enforcement action by either making an arrest or completing an offense report. On the other hand, if the individual is a tenant, the complainant is required to pursue eviction ( summary ejectment ) through small claims court. Some of the confusion in this area results from a misunderstanding regarding the difference between an individual s status as that of a resident and that of a tenant. Obviously, if a person stays at a location for a period of time and has personal belongings there, that person resides at that location. However, a person may be a resident, but not a tenant, and the length of time the person has been living there and the presence of personal property on the premises are not the determining factors. Instead, the status of tenant is acquired through the individual paying something in exchange for the right to stay at the location. Keep in mind that, with respect to an apartment, an individual may be a tenant of the person whose name is on the lease and is him/herself a tenant. The following scenarios illustrate the principles involved. Officers with further questions should contact the Police Attorney s Office for guidance.

8 September-October 2006 Volume 25, Issue 5 Page 8 of 10 Tenant vs. Freeloader Guest One individual has his name on the lease (the tenant ); the other individual does not. The other individual is simply living there and is not paying anything such as rent or utilities, nor is there any other type of agreement between the parties. The tenant can put the other one out of the dwelling without going through formal eviction procedures. If the officer concludes that the other individual is merely a non-paying guest of the tenant and the tenant orders the guest off the premises in the officer s presence, the officer may make a warrantless arrest for trespassing if the guest refuses to leave. The person whose name is on the lease should allow the guest to retrieve his personal property before the officer takes any enforcement action. Officers should not become involved in the division of personal property between the individuals. On the other hand, if the officer is unsure whether the individual is a guest or a tenant, the officer should complete an offense report and advise the person whose name is on the lease to go to the Magistrate s Office and attempt to obtain a trespassing warrant. No warrantless arrest should be made under these circumstances, unless it is otherwise justified under G.S. 15A-401(b). Homeowner vs. Paying Guest/Occupant Two individuals are living together in a house. One person is the owner of the house and is paying the mortgage. The other person helps out by paying the utilities, etc. The owner of the house wants the other individual put out of the house. This is an implied lease/tenancy situation. The owner of the house should be advised to go through formal eviction procedures. (Note: The same rule would apply if the parties were living in an apartment or some dwelling other than a house). Return to top CHILD CUSTODY DISPUTES BETWEEN PARENTS LIMITED ROLE OF LAW ENFORCEMENT NOTE: This article appeared in an earlier edition this year of the Police Law Bulletin. The issue continues to generate questions and concerns. Sergeants are encouraged to conduct roll call training on this topic for their officers. For the majority of child custody disputes between parents, the officer s response should consist of the following: 1. Maintaining the peace. 2. Verifying the child s safety, such as going to the child s location and confirming that the parent can care for the child. If there is a question as to the child s physical safety, Child Protective Services (CPS) should be notified to determine placement. *See Note below.

9 September-October 2006 Volume 25, Issue 5 Page 9 of A child should not be removed from the parent by the officer. 4. Parents should be referred to civil court. *Note: An officer may take temporary custody of a juvenile pursuant to G.S. 7B-500 if there are reasonable grounds to believe the juvenile is abused, neglected, or dependent, and if the juvenile would be injured or could not be taken into custody if it was necessary to obtain a court order. CPS should be contacted immediately for placement of the child. Also, under G.S. 7B-500, an officer may take an infant under seven (7) days old into temporary custody if the infant is voluntarily delivered by a parent who does not express an intent to return for the infant. Officers may also encounter nonsecure custody orders, issued pursuant to G.S. 7B-504, due to abuse, neglect, or dependency, which are directed to an officer or the Department of Social Services ( DSS ). These orders include provisions placing the juvenile with DSS or an appropriate relative, with a specified time in which the juvenile may remain in custody. Please contact the Police Attorney s Office if you encounter such an order and need assistance. SOME TYPICAL SITUATIONS ARE LISTED BELOW: A. Custody order with language law enforcement officer to/may assist : Frequently, an officer may be presented with a court order regarding child custody that will have some general language that says law enforcement to/may assist the parent in obtaining custody of the child. The language may even be something to the effect of, law enforcement officials are ordered and directed to assist in the enforcement of this Order. Such phrases do not allow the officer to remove the child from one parent to give to the other parent or to force a parent to return a child. The parent may be in civil contempt, but the officer is not empowered to physically remove a child from a parent by such an order, because enforcement is a civil matter. In addition, the officer should not threaten the parent with arrest if he/she does not comply with the custody order. Officers are not statutorily authorized to enforce a custody order. There is a special provision under G.S. 50A-311 that allows a court to issue a warrant to take physical custody of a child if the petitioner (not an officer, but the parent) files a verified application with the court alleging that the child is imminently likely to suffer serious physical harm or be removed from the state. B. Custody order and parent late in returning child: Generally, when a parent does not comply with visitation hours or days set out in a child custody order or agreement, this does not constitute the offense abduction of children under G.S A violation by keeping a child an extra day, or returning the child a few hours late, is not a crime, but is enforced by civil contempt and the parent should be referred to civil court. Each situation is

10 September-October 2006 Volume 25, Issue 5 Page 10 of 10 different, however, so officers should consult Family Services or the Police Attorney s Office if there are questions. C. No custody order: This situation occurs when there is a dispute between parents, but there is no custody order and the parents have never been married. Generally, the biological parents of a child have equal custody rights to the child in the absence of a custody order. The officer s role is merely to keep the peace and not remove the child from one parent to give to the other parent. The officer s response should be the same even if the child is located with an appropriate relative of one of the parents. If there is some concern about the child s welfare, the officer should take steps to verify the child s safety, including contacting CPS. D. Transporting child outside of state: G.S makes it a felony for any person, with the intent to violate a court order, to take or transport a child outside of the state or to keep a child outside of the state. Keeping a child outside of the state in excess of 72 hours is prima facie evidence that the person intended to violate the order. E. Out of state custody orders: Child custody orders from other states will generally be enforced by North Carolina through a registration process which requires notice to the other party. Violations of these orders are also enforced by civil contempt. An officer faced with an out-of-state child custody order should keep the peace and ensure the safety of the child. These orders do not allow the officer to remove a child from a parent. NOTE: This article is intended to address the most common situations encountered by child custody orders issued as a result of separation, divorce, or child support issues. There are many variations in these orders, so please contact the Police Attorney s Office for guidance if you have questions. Return to top