Court deems search improper

Man whose pants were searched gets new trial

RALEIGH -- A Charlotte man won a new trial Tuesday because a police officer conducted an "intrusive genital inspection" without warning and probable cause to think that drugs were in the man's pants.

"A reasonable person would not have expected police to pull his pants away from his body and expose his genitals in a parking lot of an apartment complex," wrote N.C. Court of Appeals Judge Linda McGee, who along with Judge Rick Elmore granted Timothy Stone a new trial.

Since Judge Sanford Steelman dissented, prosecutors can ask the N.C. Supreme Court to review the ruling.

The majority's opinion details what happened during a traffic stop at 3:30 a.m. Oct. 7, 2002:

Charlotte-Mecklenburg Police Officer R.E. Correa followed a burgundy Oldsmobile in Charlotte's Nations Ford area, where drug and prostitution arrests are common.

Stone, 32, was a passenger in the car, which was parked outside an apartment complex. Correa stopped behind the car and recognized Stone as someone a tipster identified as a drug dealer. Correa asked permission to search Stone for drugs and weapons. Stone said he did not have any but agreed to the search. Correa found $552 in a pocket of Stone's drawstring sweat pants. Correa again asked if Stone had drugs or weapons. Stone denied it but agreed to another search.

Correa then pulled off Stone's sweat pants and shined a flashlight at Stone's groin. Stone objected, but Correa had already spotted a pill bottle with 26 grams of crack cocaine. Correa arrested Stone, who was later convicted of possession with intent to sell or deliver cocaine and being a habitual felon. Before trial, Stone lost a motion to suppress the drugs as evidence.

Stone's lawyer, Jarvis John Edgerton IV of Raleigh, said in an interview Tuesday that Correa's tactics illustrate how police can abuse their authority.

"Consent searches are an area where the law is somewhat unclear and officers frequently overreach," Edgerton said.

To do so, Edgerton said, officers use a couple of tactics: they ask in an ambiguous way if someone will consent to a search, often asking if the person will allow a pat down and a search for drugs or guns. But Edgerton said the person often hears only the words "pat down" and assumes that will be the extent of the officer's actions. Officers also will overreach quickly and without warning, as Correa did by looking down Stone's pants without asking, so a person doesn't have time to object, Edgerton said.

The court ruled Correa did not get consent to inspect Stone's genitals, and a reasonable person would not have understood he was consenting to such a search.

In his dissent, Steelman wrote: "The anonymous tip that the defendant was a drug dealer, the time of night, the high drug area, the large amount of cash found on the defendant, and the suspicious actions of the defendant and the driver, considered in the aggregate, are sufficient to support the conclusion that the search ... was objectively reasonable."