Monday, January 30, 2012

NC Supreme Court Criminal Decisions, January 27th

State v. Raymond Burke. Per curiam affirmed.

Summary of COA:

Defendant stopped when officer notes that his 30-day tag appears to be different (different numbers) than other 30-day tags he's seen and the officer believes it is fictitious. When the defendant went into his glove box to get his registration, the officer saw a handgun. Defendant was arrested for carrying a concealed weapon. Then the defendant confessed to having ecstasy and cocaine.

1) Held stop was not valid. The officer lacked reasonable articulable suspicion for the stop. Here, there was no evidence that the 30-day tag was old, worn or concealed. The officer simply believed the numbers were "too low." This was inadequate reasonable suspicion for the stop. (Note: The tag was valid.)

Evidence should have been suppressed. Reversed and vacated.

Martin dissented

State v. Omar Mbacke.

Defendant filed an MAR based on Gant, a newer Supreme Court case that says you cannot search a car incident to arrest, if the defendant is outside of the car. A car can only be searched if probable cause exists to believe there is evidence of crime in it. Defendant was arrested for DWLR and possession of a concealed weapon (on his person).

COA Decision: All the evidence that could exist for those crimes are on his person, not in the car. As such, it was improper, under Gant to conduct the warrantless search of the car.

NCSC Decision: Reversed.  Under Gant, can only search if the defendant is unsecured and within reaching distance of the passenger compartment (no here) or if police have "reason to believe" that the vehicle might contain evidence of the crime of arrest. This is a standard lower than probable cause and is similar to Terry. Given the defendant's "furtive behavior" and his closing of his car door, police did reasonably believe "additional evidence of the offense of arrest" could be found in the defendant's vehicle. The court does not what that additional evidence might have consisted of.

The court went on to say that arrest for concealed weapon will not always justify a search.

Justice Timmons-Goodson dissents.

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