An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1215

                                 Filed: 18 August 2015

Mecklenburg County, No. 12 CRS 254000

STATE OF NORTH CAROLINA,

              v.

JONQUAN MONTREIL YOUNG, Defendant.


       Appeal by defendant from judgment entered 28 April 2014 by Judge Nathaniel

J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 18

March 2015.

       Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer,
       for the State.

       Willis Johnson & Nelson, PLLC, by Drew Nelson, for defendant-appellant.


       GEER, Judge.


       Defendant Jonquan Montreil Young pled guilty to the charge of possession

with intent to sell or deliver cocaine (“PWISD”) and now appeals the denial of his

motion to suppress incriminating evidence seized during a strip search. On appeal,

defendant primarily argues that this evidence should be excluded because no warrant

was obtained prior to performing the strip search, and the strip search was not

otherwise justified because there was no specific showing that it was necessary for

officer safety or to preserve evidence. However, defendant does not challenge the
                                       STATE V. YOUNG

                                       Opinion of the Court



contemporaneous nature of the search with his arrest, and he does not suggest that

the strip search was unreasonable under the circumstances. Because it is well settled

that officers are categorically entitled to perform searches of an arrestee’s person

incident to a lawful arrest, we affirm.

                                             Facts

       On 14 December 2012, defendant was a passenger in Michael Denkins’ vehicle

when, during a stop on Linwood Avenue in Charlotte, North Carolina by Officers

Chad Shingler and Daniel Bignall of the Charlotte-Mecklenburg Police Department,

drugs were found in the vehicle. Defendant and Mr. Denkins were then arrested and

taken to the police station where the officers conducted a strip search of defendant

and discovered that he had been concealing cocaine between the cheeks of his

buttocks.     Defendant was indicted for PWISD and possession of marijuana.1

Defendant filed a motion to suppress the evidence seized as a result of the strip

search.

       The trial court held a suppression hearing on 11 October 2013 at which both

Officers Shingler and Bignall testified. Defendant presented no evidence. After the

hearing, the trial court entered an order with findings of fact and conclusions of law.

None of the trial court’s findings are challenged on appeal, and they are, therefore,



       1The  record only contains the indictment for PWISD, although the transcript indicates that
defendant was also charged with possession of marijuana. The record indicates that the State later
dismissed the possession of marijuana charge.

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“binding on appeal.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).

The order’s findings of fact include the following.

      When Officer Bignall pulled over Mr. Denkins’ vehicle for having a broken

headlight, defendant was in the front passenger seat.         After Officer Bignall

approached Mr. Denkins and asked him for his driver’s license, he checked for any

outstanding warrants on both Mr. Denkins and defendant but found none. Then,

when Officer Shingler arrived, Officer Shingler walked over to the passenger side of

the vehicle and noticed defendant sitting in the front passenger seat with the window

rolled up, looking straight ahead, and breathing rapidly. Officer Shingler smelled

marijuana coming from the vehicle. Officer Bignall had Mr. Denkins step out of the

vehicle, and Officer Bignall obtained consent to search Mr. Denkins’ person and his

vehicle. Officer Shingler then had defendant step outside of the vehicle, and Officer

Shingler decided to search defendant’s person.

      A search of Mr. Denkins’ person turned up nothing.        As Officer Shingler

searched defendant, he ran his hand between defendant’s legs. Officer Shingler

noticed that “defendant’s butt cheeks were clenched together very tight.” The trial

court made findings regarding the officers’ extensive training and experience in

identifying narcotics and detecting when and where a person is concealing narcotics.

It also noted Officer Shingler’s testimony that when he performs a body search and

asks a suspect to relax his or her buttocks, that person will comply with the request



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                                  Opinion of the Court



90% of the time. In this case, Officer Shingler asked defendant to relax his buttocks

multiple times, and although defendant was verbally cooperative with Officer

Shingler, defendant failed to comply with Officer Shingler’s request to relax his

buttocks.

      Based on defendant’s behavior, Officer Shingler suspected defendant was

concealing drugs between the cheeks of his buttocks. However, while at the scene,

neither Officers Shingler nor Bignall removed any of defendant’s clothing, nor did

they peek into his clothing or pull back his waistband. While the officers noticed an

aroma of marijuana coming from defendant’s person that they did not notice on Mr.

Denkins, they found no contraband on defendant’s person at the scene.

      Nonetheless, a search of the vehicle turned up a clear plastic baggy between

the driver’s seat and the center console which Officer Bignall believed to contain

marijuana, as well as a baggy under the driver’s seat that he believed contained

cocaine residue. Both defendant and Mr. Denkins were arrested for possession of

those drugs; defendant was specifically arrested for possession of the marijuana

found in the vehicle.

      After arriving at the police station, Officers Shingler and Bignall led defendant

into a private bathroom and shut the door. Officer Shingler had defendant remove

his clothing. After much urging by Officer Shingler, defendant “finally relaxed his

posture such that Officer Shingler was able to see, lodged between his buttocks, a



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                                  Opinion of the Court



clear plastic baggy, which he, with latex gloves, then removed and saw, based on his

training and experience, what he believed to be cocaine, 1.4 grams.” Officer Shingler

seized and placed this baggy into evidence.

      Based on these findings, the trial court concluded that Officers Shingler and

Bignall had probable cause to arrest defendant for the crime of marijuana possession.

Further, “[b]ased upon the nervous nature of the defendant in the vehicle, the odor of

marijuana on his person, the manner in which he clenched his buttocks when the

officers attempted to search in that area and all the other factors and based upon the

totality of the circumstances, the search in this case was based upon sufficient

probable cause.”

      The trial court also concluded that “[t]he search of the defendant at the police

station would be justified in this case, either as a legitimate search incident to the

arrest of the defendant or based upon the probable cause established at the traffic

stop.” The court further determined that the fact that the search was not conducted

in plain public view on the side of Linwood Avenue but rather at the police station

was in deference to defendant’s privacy rights and that “[t]he search at the police

station in the bathroom was a legitimate balance of the officer’s right to search the

defendant and the defendant’s right to privacy.” Finally, the trial court concluded

that the search of defendant at the police station “did not violate the defendant’s

Constitutional rights, either Federal or State.”



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                                       Opinion of the Court



       Based on these conclusions, the trial court denied defendant’s motion to

suppress. On 28 April 2014, defendant entered into a plea agreement whereby he

would plead guilty to PWISD in exchange for a suspended sentence of eight to 19

months imprisonment and probation for 18 months as well as dismissal of his

remaining charge of marijuana possession. That same day, defendant pled guilty to

PWISD and was sentenced according to his plea agreement.                     Defendant timely

appealed to this Court.2

                                           Discussion

       The standard of review for a trial court’s order denying a motion to suppress is

               “whether the trial judge’s underlying findings of fact are
               supported by competent evidence, in which event they are
               conclusively binding on appeal, and whether those factual
               findings in turn support the judge’s ultimate conclusions of
               law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618,
               619 (1982). . . . “The trial court’s conclusions of law,
               however, are fully reviewable on appeal.” State v. Hughes,
               353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

State v. Medina, 205 N.C. App. 683, 685, 697 S.E.2d 401, 403 (2010).

       Defendant argues that only a warrant would have justified the search and

challenges the conclusion that the strip search was either justified as a search

incident to arrest or as a search conducted under exigent circumstances. “The Fourth

Amendment to the United States Constitution protects individuals ‘against



       2The  record indicates, and the State does not contest, that defendant reserved the right to
challenge the denial of his motion to suppress upon the entry of his guilty plea.

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                                   Opinion of the Court



unreasonable searches and seizures[.]’ ” State v. McKinney, 361 N.C. 53, 57, 637

S.E.2d 868, 871 (2006) (quoting U.S. Const. amend. IV). “Generally, a warrant is

required for every search and seizure, with particular exceptions.”            State v.

Armstrong, ___ N.C. App. ___, ___, 762 S.E.2d 641, 643 (2014).

      One exception provides that “ ‘[a] warrantless search is lawful if probable cause

exists to search and the exigencies of the situation make search without a warrant

necessary.’ ” State v. Malunda, ___ N.C. App. ___, ___, 749 S.E.2d 280, 283 (quoting

State v. Mills, 104 N.C. App. 724, 730, 411 S.E.2d 193, 196 (1991)), disc. review

denied, 367 N.C. 283, 752 S.E.2d 476 (2013). “ ‘[Another] well-recognized exception

to the warrant requirement is a search incident to a lawful arrest. Under this

exception, . . . an officer may conduct a warrantless search of the arrestee’s person

and the area within the arrestee’s immediate control.’ ” State v. Carter, 200 N.C. App.

47, 50-51, 682 S.E.2d 416, 419 (2009) (quoting State v. Logner, 148 N.C. App. 135,

139, 557 S.E.2d 191, 194 (2001)). A search may be justified as incident to lawful

arrest if “[the] warrantless arrest is . . . based upon probable cause,” Mills, 104 N.C.

App. at 728, 411 S.E.2d at 195, and the search is “ ‘substantially contemporaneous

with the arrest.’ ” State v. McHone, 158 N.C. App. 117, 119, 580 S.E.2d 80, 82 (2003)

(quoting State v. Jackson, 280 N.C. 122, 126, 185 S.E.2d 202, 205 (1971)).

      We need not address whether the strip search was made with probable cause

and under exigent circumstances because the search was made incident to arrest.



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“The search incident to a lawful arrest exception has resulted in two different

formulae. The first concerns searches of the person arrested and the second concerns

searches of the area within the control of the arrestee.” State v. Nesmith, 40 N.C.

App. 748, 750, 253 S.E.2d 594, 595 (1979). In United States v. Robinson, 414 U.S.

218, 235, 38 L. Ed. 2d 427, 441, 94 S. Ct. 467, 477 (1973), the United States Supreme

Court held that “in the case of a lawful custodial arrest a full search of the person is

not only an exception to the warrant requirement of the Fourth Amendment, but is

also a ‘reasonable’ search under that Amendment.”

      Our appellate courts have recognized Robinson’s categorical rule allowing a

full search of the person incident to a lawful arrest. See Nesmith, 40 N.C. App. at

751, 253 S.E.2d at 596 (recognizing Robinson’s holding). See also State v. Brooks, 337

N.C. 132, 144-45, 446 S.E.2d 579, 587 (1994) (recognizing under Robinson, involving

search of vehicle incident to arrest, that officers “do not need to consider the

particular defendant’s dangerousness or the likelihood that the defendant may

destroy evidence before they conduct their search”).

      Although the search of a person may be authorized as incident to arrest, our

appellate courts have recognized that “ ‘[t]he Fourth Amendment precludes . . . those

intrusions into privacy of the body which are unreasonable under the

circumstances.’ ” State v. Norman, 100 N.C. App. 660, 663, 397 S.E.2d 647, 649 (1990)

(quoting State v. Cobb, 295 N.C. 1, 20, 243 S.E.2d 759, 770 (1978)). This is because



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                                   Opinion of the Court



“ ‘[d]eeply imbedded in our culture . . . is the belief that people have a reasonable

expectation not to be unclothed involuntarily, to be observed unclothed or to have

their private parts observed or touched by others.’ ” State v. Stone, 362 N.C. 50, 55,

653 S.E.2d 414, 418 (2007) (quoting Justice v. City of Peachtree, 961 F.2d 181, 191

(11th Cir. 1992)).

      In contesting the legality of his strip search, defendant does not challenge the

conclusion that he was arrested with probable cause, nor does he dispute that the

strip search was made contemporaneously to his arrest. Rather, defendant contends

that the facts of his particular case could not have justified the search of his person

as incident to arrest: because defendant was “handcuffed, under the direct, physical

control of the officers, and confined to the ‘prisoner bathroom’ at the time of the strip

search[,]” the warrantless search “neither ensured officer safety nor preserved

evidence[.]”

      In support of his argument that the officers could not search his person without

a warrant unless it was necessary for officer safety or the preservation of evidence,

defendant relies on Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct.

2034 (1969). While Chimel addressed the legality of a search of the arrestee’s entire

house following his arrest, 395 U.S. at 755, 23 L. Ed. 2d at 689, 89 S. Ct. at 2036,

rather than the legality of a warrantless search of an arrestee’s person, it was at one

point cited as supporting defendant’s proposition. See United States v. Robinson, 447



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                                   Opinion of the Court



F.2d 1215, 1226 n.8 (D.C. Cir. 1971) (Wright, J., dissenting) (suggesting that under

Chimel’s safety and evidentiary justifications for searches incident to arrest, “the only

kind of search justified automatically by a lawful arrest is the evidentiary search”),

rev’d, 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973).

      However, four years later, the United States Supreme Court in Robinson

explicitly rejected the need for “a case-by-case adjudication,” explaining that “[t]he

authority to search the person incident to a lawful custodial arrest, while based upon

the need to disarm and to discover evidence, does not depend on what a court may

later decide was the probability in a particular arrest situation that weapons or

evidence would in fact be found upon the person of the suspect.” 414 U.S. at 235, 38

L. Ed. 2d at 440, 94 S. Ct. at 477. Robinson and not Chimel is the controlling

authority.

      Defendant also urges that we extend the rule set out in State v. Thomas, 81

N.C. App. 200, 343 S.E.2d 588 (1986), to searches of an arrestee’s person. Thomas

addressed the warrantless search of an arrestee’s locked suitcase which “was not, at

the time of defendant’s arrest, ‘immediately associated’ with defendant’s person.” Id.

at 211, 343 S.E.2d at 594. In Thomas, this Court held that because “[d]efendant could

not have reached the contents of the locked suitcase. . . [which was] effectively

reduced to the agents’ exclusive control . . . , the agents could not lawfully search it

without first obtaining a warrant.” Id.



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      Defendant urges that the reasoning of Thomas requiring a warrant to search

the locked luggage in that case applies “with equal force” in situations where the

arrestee’s person is in the exclusive control of police officers.   This contention,

however, cannot be reconciled with Robinson’s categorical rule authorizing searches

of the person incident to arrest regardless of any actual concern about the loss of

evidence or of officer safety. Like Chimel, Thomas did not address the search of an

arrestee’s person incident to arrest, and it, therefore, does not inform our analysis.

We are bound by Robinson. See State v. Elliott, 360 N.C. 400, 421, 628 S.E.2d 735,

749 (2006) (“The Supreme Court of the United States is the final authority on federal

constitutional questions.”).

      There can be no question that Robinson gives authority to officers to search an

arrestee’s person incident to his arrest regardless whether the facts of his case

suggest actual officer safety or evidentiary concerns. Because defendant does not

challenge the contemporaneous nature of his strip search, the only issue that could

have been raised on appeal was whether the scope of the search as a strip search was

reasonable under the circumstances. However, defendant cites no authority that the

strip search in this case was unreasonable under the circumstances.

      Most of our case law addressing the propriety of strip searches involves strip

searches occurring on the side of the road.          Nonetheless, in determining the

reasonableness of any given strip search, this Court has explained that



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             the trial court must balance the need for the particular
             search against the invasion of personal rights that the
             search entails. Courts must consider the scope of the
             particular intrusion, the manner in which it is conducted,
             the justification for initiating it, and the place in which it
             is conducted.

State v. Fowler, 220 N.C. App. 263, 266-67, 725 S.E.2d 624, 627-28 (2012) (internal

citations and quotation marks omitted).

      Defendant has not, however, made any argument that even if a search of his

person was constitutionally permissible, the officers’ performance of a strip search

was unconstitutional. While in State v. Battle, 202 N.C. App. 376, 403, 688 S.E.2d

805, 824 (2010), this Court found unconstitutional a strip search conducted on the

side of a street with traffic going by and in broad daylight, this Court recognized that,

“ ‘[o]rdinarily, when police wish to search the private areas of an arrestee’s person

incident to arrest, they should first remove the arrestee to a private location -- i.e., a

private room in the stationhouse.’ ” Id. at 385, 688 S.E.2d at 813 (quoting Starks v.

City of Minneapolis, 6 F.Supp.2d 1084, 1088 (D. Minn. 1998)). See also State v.

Robinson, 221 N.C. App. 266, 282, 727 S.E.2d 712, 722 (2012) (upholding strip search

“given that [the officer] had ample basis for believing that Defendant had contraband

beneath his underwear and given that [the officer] took reasonable steps to protect

Defendant’s privacy”); State v. Johnson, 143 N.C. App. 307, 313, 547 S.E.2d 445, 450

(2001) (“[T]he search was conducted in a reasonable manner. The [male] defendant

was taken into his bedroom and searched by two male officers. The officers did not


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                                  Opinion of the Court



touch defendant, rather they instructed him to bend over and observed as the

defendant spread his buttocks and moved his genitals. When the officers observed

plastic protruding from the defendant, they asked that he remove the plastic which

turned out to contain illegal contraband.”).

      Because the officers were entitled to conduct a search of defendant’s person

incident to his arrest and because defendant has failed to demonstrate that the strip

search was, under the circumstances, an unreasonable search of the person, we hold

that the trial court properly denied defendant’s motion to suppress on the grounds

that the search was a lawful search incident to arrest. We, therefore, need not

address defendant’s remaining argument that the motion to suppress should have

been granted because the search was not justified under exigent circumstances.

      AFFIRMED.

      Judges ELMORE and INMAN concur.

      Report per Rule 30(e).




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