State v. Icard

BRYANT, Judge

concurring in part and dissenting in part.

The majority holds that the police search of Defendant’s purse was governed by the Fourth Amendment. However, because I find the search was not governed by the Fourth Amendment, I respectfully dissent.

“A seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a rea*89sonable person would feel free to disregard the police and go about his business the encounter is consensual and no reasonable suspicion is required.” Florida v. Bostick, 501 U.S. 429, 434, 111 L. Ed. 2d 389, 398 (1991) (citation and quotation omitted). “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred.” Id. (citation and quotation omitted). Communication between the police and citizens involving no coercion or detention falls outside the compass of the Fourth Amendment. State v. Sugg, 61 N.C. App. 106, 108, 300 S.E. 3d 248, 250 (1983). “[T]he test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” California v. Hodari D., 499 U.S. 621, 628, 113 L. Ed. 2d 690, 698 (1991).

The majority concludes the search of Defendant’s purse was governed by the Fourth Amendment because Officer Moore’s “opening the door and insistence that Defendant produce identification were a show of authority” transforming the encounter into a seizure of Defendant. The majority rests its conclusion that Office Moore’s opening the door and requesting Defendant’s identification was a show of force due to the other circumstances that night which placed Defendant in a position where “at 12:30 a.m., in an area known for drug activity and prostitution, any passenger, particularly a female, would undoubtedly have felt uncomfortable or unsafe by attempting to leave the parking lot on foot.” However, the inquiry regarding the totality of circumstances for Fourth Amendment purposes is not whether a reasonable person was uncomfortable leaving because of the surrounding environment, but whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005), because of “the officér’s words and actions,” Hodari D., 499 U.S. at 628, 113 L. Ed. 2d at 698.

Officer Moore’s words and actions in this case would not cause a reasonable person to believe he was not free to leave. After back-up assistance arrived, Officer Moore approached the passenger-side of the pickup truck and tapped on the window. When Defendant ignored his taps oh the window, Officer Moore opened the passenger-side door and asked Defendant to produce identification. Although persistent, at no time during the beginning of his encounter with Defendant did Officer Moore’ actions or words constitute a show of *90authority amounting to a restraint on Defendant’s liberty. For these reasons, I respectfully dissent on the issue of whether the search of Defendant’s purse was within the realm of the Fourth Amendment.

I concur with the majority as to the remaining issues raised by Defendant.