Checkpoint Stats PA Deferred Prosecution Statue

15A-222 Person from Whom Effective Consent May Be Obtained

The consent needed to justify a search and seizure under G.S. 15A‑221 must be given:

(1) By the person to be searched;

(2) By the registered owner of a vehicle to be searched or by the person in apparent control of its operation and contents at the time the consent is given;

(3) By a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of premises. (1973, c. 1286, s. 1.)

This is what the Supreme Court has said:

Ill. v. Rodriguez, 497 U.S. 177 (1990)

As with other factual determinations bearing upon search and seizure, determination of consent to enter must "be judged against an objective standard: would the facts available to the officer at the moment . . . 'warrant a man of reasonable caution in the belief'" that the consenting party had authority over the premises? Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). If not, then warrantless [*189] entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.

This is what NC Appellate Courts have said:

State v. McDaniels, 103 N.C. App. 175 (1991)

"The officer may question the driver and passengers . . . and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause." United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 45 L.Ed.2d 607, 617 (1975) [***19] (approving investigative stop of moving vehicle).

N.C. Gen. Stat. § 15A-221(a) provides for warrantless searches and seizures if consent to the search is given. Under § 15A-222(2) the requisite consent must be given either by the registered owner of the car or by the person in apparent control of its operation and contents at the time consent is given. Consent given by the owner or person lawfully in control of a vehicle is sufficient to justify a search that yields evidence used against a non-consenting passenger. A driver is in "apparent control" of a car and its contents, whether the vehicle or its contents belong to him or to others.

A police officer may search a closed container found in a vehicle, where the officer has the suspect's general consent to search and the officer might reasonably believe the container holds the object of the search.


State v. Pearson, 348 N.C. 272 (1998)

The superior court relied on the consent to search the vehicle signed by the defendant and the fact that he did not object when he was searched to conclude the defendant consented to the search. This was error. HN5Go to the description of this Headnote.The consent signed by the defendant applied only to the vehicle. We cannot broaden the consent to include the defendant's person. N.C.G.S. § 15A-223(a) (1997). We also cannot hold that the acquiescence of the defendant when the officer told him he would frisk him was a consent, considering [***9] all the circumstances. HN6Go to the description of this Headnote.There must be a clear and unequivocal consent before a defendant can waive his constitutional rights. State v. Little, 270 N.C. 234, 239, 154 S.E.2d 61, 65 (1967).


State v. Cooke, 54 N.C. App. 33 (1981) (not directly on point but involves search of a suitcase (also a "closed personal carrier" like a purse) belonging to a 3rd party such that this case may be helpful)

An individual's standing to claim the protection of the Fourth Amendment depends upon whether the place invaded was an area in which such individual had a reasonable expectation of freedom from governmental intrusion … The fact that a defendant is not in actual possession and control of a suitcase just prior to the time of the illegal search and seizure does not necessarily defeat his reasonable expectation of privacy in the suitcase … The case at bar is distinguishable from both Rawlings and Jordan. In this case, Cooke did not place the drugs inside a suitcase owned by Turney, and Turney had no right of access to the contents of Cooke's suitcase. Turney told the police that the suitcase and its contents did not belong to him. Although the exterior of the suitcase was subject to public exposure at Turney's whim, the suitcase's contents were not. Turney had no right to open the suitcase and knew he could not give anyone else permission to open it. Cooke took every precaution possible to maintain the privacy of, and protect his interest in, the interior of his suitcase short of holding it in his own arms at all times. Turney was a bailee to whom Cooke entrusted the safe keeping of [***21] his suitcase. To hold that this arrangement constitutes the relinquishment by Cooke of his expectations of privacy in the contents of his own suitcase would be, in our view, an unwaranted extension of Rawlings and Jordan. "Notwithstanding Rawlings, then, ordinary bailment relationships still deserve to be recognized as establishing a justified expectation of privacy upon which Fourth Amendment standing may be grounded." LaFave, Search and Seizure, § 11.3 at 115 (Supp. 1981).

This case may be helpful to counter an argument, if raised, that by riding in another person's car, over which the person had control and possession at the time, the lady and her personal effects were subject to the control of the driver as well such that the driver's consent to search of the car as a whole included all things within it. The COA's opinion in McDaniels is obviously overruled by the NC Supreme Court's holding in Pearson to the extent it conflicts with Pearson (which holding in Pearson, by the way, is consistent with the SCOTUS ruling). Therefore, you might just want to disregard McDaniels and hang your hat on the SCOTUS opinion and the other NC cases. Now, if it turns out that purse actually belonged to the dude …  ;-) Joking. Good Luck!

 M T Singleton