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AG: Council had no authority to stop Fayetteville consent searches

Posted February 21, 2012
Updated February 22, 2012

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— The state Attorney General's Office on Tuesday backed up Fayetteville Police Chief Tom Bergamine's assertion that the City Council overstepped its authority when it enacted a moratorium on police consent searches.

Fayetteville City Council voted 8-2 last month to put consent searches on hold for 120 days while a consultant investigates claims that the practice disproportionately targets black drivers.

Bergamine and the North Carolina Police Benevolent Association decried the council's decision, saying it was unlawful and that consent searches are an important law enforcement tool.

In a letter from Senior Deputy Attorney General James J. Coman to Bergamine Tuesday, the state sided with law enforcement.

"The resolution that was adopted by the council exceeds the authority to prohibit lawful law enforcement activities," the letter states.

Consent searches, which allow police officers to ask a driver's permission to search a vehicle without establishing probable cause, are legal under North Carolina law. Therefore, Special Deputy Attorney General John J. Aldridge wrote in a separate letter to Bergamine Tuesday, the city had no right to enact an ordinance against them.

"A municipal corporation's regulations, bylaws and ordinances must be in harmony with the general laws of the State," the letter states. "In the case of a conflict between the two, the local regulation must yield to state law."


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  • Benjamin 76 Feb 27, 2012

    The City Council and mayor have done some dirty stuff before this. Look up TicketGate and all the Annexation going on. Keep in mind, these searches are after the person was pulled over for a Traffic Violation. The FPD are not just pulling people over to search a car, the driver had already done something wrong in the first place.

  • Lady Justice Feb 23, 2012

    Lady Justice

    "Please accept my apologies that I didn't see the words "probable cause" in your first post. You're right. I'm wrong. Sorry for the frustration."

    Thanks for saying that love2dostuff. Not a big deal to me, I just hate when misinformation is out there that might get somebody in a bad situation down the road, when that is all they have ever heard.

  • love2dostuff Feb 22, 2012

    Lady Justice

    Please accept my apologies that I didn't see the words "probable cause" in your first post. You're right. I'm wrong. Sorry for the frustration.

    Yes, I am aware that they can search from probable cause. Again, my mistake and thanks for taking the time to straighten me out. Refreshed after a few hours of sleep and thinking clearly now.

  • maranda2 Feb 22, 2012

    If you are speeding, pulled over, the officer runs your license, it comes back you had a RECENT drug conviction, you are in a known drug area, you are acting suspicious, and the officers SEES a bag sticking out from under the seat that looks like it could hold drugs but the officer can not search your vehicle. It is ridiculous!!!! He should be able to search your vehicle end of story. You should go and do a ride along with a police officer and see the different circumstances that come up and you would see where they are having to question themselves on whether or not they can search this person period. It can cost them their lives. It is a very important tool that they can use to get drugs and guns off the street. Guns that don't belong on the street and drugs that don't belong there either. I just do not see the problem with getting these things off the street. What if one of those things killed your child or family member but was stopped by a FPO and they couldn't search them?

  • itsnotmeiswear Feb 22, 2012

    Consent search is legal. Why wouldn't it be? Saying "no" is your right but is often not understood. There should be a requirement to inform the party of their right to say "no".

    Probable cause search is legal. Saying "no" is not an option.

  • itsnotmeiswear Feb 22, 2012

    "leave all the drugs laying in the front seat or under the seats for you dope dealers who drive around with the powder under your nose. Is that right? maranda2"

    That would constitute probable cause. The FPD will not be asking you "if" they can search the car once the suspect is handcuffed and laying on the hood of their car. This is about searching cars that have not done anything other than a speeding ticket. Completely different circumstance.

  • Lady Justice Feb 22, 2012


    Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed.2d 419 (1970)

    Texas v. White, 423 U.S. 67, 96 S. Ct. 304, 46 L. Ed. 2d 209 (1975)

    Michigan v. Thomas, 458 U.S. 259, 102 S. Ct. 3079, 73 L. Ed.2d 750 (1982)

    And there are a few more, want those as well?

  • eoglane Feb 22, 2012

    Outstanding, criminals strive on the city council poor judgement. And citizens cry until a search could have prevented a death to a love one, or stopped a drug head from selling to their children.

  • biker4133 Feb 22, 2012

    As with most local elected things, if there's a conflict between political correctness and public safety, PC wins every time.

  • gunny462 Feb 22, 2012

    "maduda - what do you think happens when someone says "no"?

    You get what ever ticket they stopped you for, so just say no, get the ticket and drive off.