Consent Searches of Vehicles in North Carolina

Session Laws 1973, c. 1286, s. 1 created a short article, G.S. 15A-221 through 15A-223, that most states never enacted. G.S. 15A-221(a) is the grant: subject to the limitations in the rest of the article, an officer may conduct a search and make seizures without a warrant or other authorization if consent is given. Subsection (b) is the part that matters at the roadside. Consent, as used in the article, means a statement to the officer, made voluntarily and in accordance with the requirements of G.S. 15A-222, giving the officer permission to make a search. North Carolina's own statute therefore asks for a statement. Standing aside, unlocking a door, or saying nothing while an officer opens a trunk is not the thing the section describes.

G.S. 15A-222 answers who may give that statement, and it treats vehicles separately from people and premises. Subdivision (1) covers the person to be searched. Subdivision (3) covers premises, and reaches anyone who by ownership or otherwise is reasonably apparently entitled to give or withhold consent. Subdivision (2), the vehicle rule, is narrower than either: consent must come from the registered owner of the vehicle to be searched, or from the person in apparent control of its operation and contents at the time the consent is given. Two consequences follow directly from that wording. A driver in a borrowed or rented car can consent, because apparent control of operation and contents is what the statute asks for rather than title. A passenger who is not in apparent control of the vehicle's operation and contents is not on the list, so a passenger's yes is not the consent the statute contemplates for a search of the car itself, though under subdivision (1) that passenger can still consent to a search of his own person.

G.S. 15A-223 fences the search in once it starts. Subsection (a) states that a search conducted under the article may not exceed, in duration or physical scope, the limits of the consent given. Both words carry weight: permission to look in the passenger compartment does not become permission to take apart a door panel, and permission given at the start of a stop does not run indefinitely. Subsection (b) limits what may be taken to the categories in G.S. 15A-242, the search warrant seizure list, which covers items there is probable cause to believe are stolen or embezzled, are contraband or otherwise unlawfully possessed, have been used or are possessed for the purpose of being used to commit or conceal the commission of a crime, or constitute evidence of an offense or the identity of a person participating in an offense. Subsection (b) then imposes a paperwork duty that is easy to overlook and easy to check afterward: upon completion of the search, the officer must make a list of the things seized and must deliver a receipt embodying that list to the person who consented and, if known, to the owner of the vehicle or premises searched.

Article 9 does not displace every other search. G.S. 15A-231 provides that constitutionally permissible searches and seizures not regulated by the General Statutes of North Carolina are not prohibited, which is where probable cause searches of a vehicle sit. And nothing in Article 9 requires consent in writing, requires the officer to tell you that you may refuse, or requires the officer to repeat the request. Those obligations simply are not in the North Carolina text. Two things people expect to find here are also absent. North Carolina has not legalized recreational cannabis, so the rule other states use, that lawful possession cannot by itself justify a search, has no North Carolina counterpart, and Chapter 90 contains no provision addressing odor or probable cause. What North Carolina does have instead is a reporting duty. G.S. 143B-903(a)(6) requires covered agencies to record whether a search after a traffic stop was conducted pursuant to consent, probable cause, or reasonable suspicion, including the basis for the request for consent, alongside who was searched and whether contraband was found.

The remedy for a consent search that breaks these rules is statutory rather than only constitutional, because Article 9 sits inside Chapter 15A. S. 15A-974(a)(2) requires suppression of evidence obtained as a result of a substantial violation of Chapter 15A, and directs the court to weigh the importance of the particular interest violated, the extent of the deviation from lawful conduct, the extent to which the violation was willful, and the extent to which exclusion will deter future violations. Session Laws 2011-6, s. 1 added a good faith exception: evidence is not suppressed under that subdivision where the officer acted under an objectively reasonable, good faith belief that the actions were lawful.

S. S. 15A-977(f). S. 15A-975(a). S. 143B-903(b) applies the data duty to all State law enforcement officers, officers of county sheriffs and county police departments, and municipal police departments in towns of 10,000 or more people or employing five or more full-time sworn officers per 1,000 residents. Under subsection (e) an agency must submit the data to the Department of Public Safety within 60 days of the close of each month, and an agency that does not is ineligible to receive any law enforcement grants available by or through the State until it does.