COA restricts LE "Stop, switch & snoop" fishing expeditions | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    We here at the Observer are frequently contacted by someone who believes they or their relative, or someone associated with them, that a law enforcement officers has done something illegal to the person. The most frequent complaint is related to the legal question of whether the officer conducted a proper and legal "stop." These complaint fall, generally into two categories. The first is where the complainant believes the officers stopped a person because of "prurient interests."

    For example, one frequent complainer to us has been a father who has sought relief from a specific deputy from stopping his daughter on several occasions for what she interprets as "flirting" with her. She refused to file a complaint, for fear of retribution. She told us the deputy once threatened to "strip search" her. When she protested, the deputy said he was only kidding. We have established that in all but one of these stops the deputy apparently turned off his car camera. We suggested that the young lady use her cell phone to video any subsequent stops and when she did the deputy has not stopped her again.

    The second type of complaint most frequently received relates to what we call "extraneous" reasons to search and seize. These are stops where the initial purpose of the stop was significantly unrelated to the initial reason for a search. For example, the most recent case involved a stop because the driver failed to give a signal before changing lanes. Once stopped, the officer asked for consent to search the trunk of the car. When he found nothing he searched under the seats and the glovebox...all from an "improper lane change" original stop. These extraneous cases often have an aura of racial profiling.

    The N. C. Court of Appeals recently (7-1-14) addressed a similar kind of case from Winston-Salem. An officer stopped a car ostensibly because the head lights were not on and loud music was coming from the vicinity of the car. That stop eventually led to an arrest for drug possession, illegal possession of a weapon and a charge of being an habitual felon.

    The facts in the case showed that the driver turned on his headlights even before the officer stopped him. He also turned off the loud music. But the officer asked for consent to search the car. The defendant refused, telling the office he just want to go home. The officer threatened to call a K-9 unit if the defendant did not give consent.

    The Court of Appeals ruled that the search and seizure were illegal because the office had no probable cause to search the vehicle once the reason for the stop was affected and the proper identification was established.

    Click here to review the court's decision.

    Commentary

    We have a pretty strong suspicion that the officer did not stop this man simply because his headlights were not on and his loud music. We suspect the officer was on a fishing expedition. In this case the officer's suspicions were obvious correct. The man had contraband in his vehicle.

    But we believe the Court was exactly right. The law applicable in such situations should be enforced such that the officer must have an articulable probable cause to believe a particular crime is being committed. Once the stop is affected, and the officer deals with the initial reason for the stop, the person should be released to go on their way. In this case the office used the threat of bringing a dog in to sniff the man and car. The consent was obviously not freely given.

    Police officers should be held accountable for why they stop a vehicle. This business of stopping a person and then seeking a reason to charge them should be stopped.

    But the problem here is the one we have frequently complained of. The penalty for an illegal stop is not assessed on the officer but simply the "exclusionary rule" is applied. That is, the illegally obtained contraband cannot be used as evidence against the defendant. That is not sufficient.

    It is not sufficient simply because the person charged is punished even if the evidence is thrown out. They often are detained for long periods of time. They often have to miss work. They often have to pay a bondsman and/or a lawyer to defend them.

    The law should be changed. The person illegally detained, search or interrogated should be able to recover civil damages against the officer personally.

    That would do much to correct many of these abuses we see so frequently here in Beaufort County.

    We would disclaim this position by saying clearly that we think we're talking only about a small fraction of officers who are guilty of these illegal actions. Most cops are honest and we believe actually do try to serve and protect the public. But the bad cops have to be dealt with. The good cops deserve that being done.

    But again we should repeat what several good defense attorneys have told us: Do not give consent for a search, without first talking to your attorney. And if you're stopped, turn on your cell phone's video recorder.