Charges dropped against Raleigh man after illegal search | Wake County | Indy Week
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Charges dropped against Raleigh man after illegal search 

Inside his Raleigh home, 31-year-old John Malunda displays a book titled Know Your Rights, which he picked up several years ago after he says he caught a "bullshit felony." A high school dropout raised by a single mother, Malunda embraced street life as a teenager and once did a seven-month prison stint for selling coke.

But a lesson in Know Your Rights stuck with Malunda. Two years ago, when Raleigh police went fishing inside his pockets during a traffic stop, an alarm went off in his head. This is illegal.

That night, police found cocaine inside Malunda's jeans. They arrested him and charged him with possession with intent to sell.

"I know you can be stopped and frisked at any given time without probable cause, but they had no probable cause when they reached out into my pants," he said recently over pretzels and beer at a Scottish pub in North Raleigh.

After Malunda's arrest, his attorney sought to suppress the cocaine evidence, but Wake County Superior Court Judge Paul Gessner overruled him. However, this past November three appellate judges sided with Malunda, declaring the police search illegal.

The case addresses the blurry line between warrantless searches of cars and people—an even hazier distinction when drugs are involved.

Malunda, who is black, does not accuse the police of racial profiling. But disproportionate searches of minorities during traffic stops have presented complications within several North Carolina police jurisdictions.

According to State Bureau of Investigation data, Raleigh police searched 2,706 male passengers (other than a driver) during traffic stops in the last five years. Of those passengers, 77 percent were black. African-Americans comprise 29 percent of Raleigh residents.

Malunda, who is now studying business administration and criminal justice at Wake Technical Community College, feels vindicated. He says he no longer hustles drugs and wants to use his case to educate other young people about their rights.

"Being on the other side of the fence in society, you need to learn the logistics of the criminal justice system."

On April 5, 2012, Malunda and a friend felt like smoking weed. At around midnight, they rolled up to an East Raleigh convenience store to buy a blunt. The bud, already purchased, was stashed inside the driver's side door of the friend's Dodge Avenger.

In addition to the blunt, Malunda bought an Ice House, and his friend grabbed a Mike's Hard Lemonade. Inside the Avenger they popped open their drinks, and Malunda's friend started the engine. As he pulled the car halfway into the street, he noticed a police cruiser facing him.

Officer Bryan Brinkley had been eyeing the young men for several minutes. He knew the convenience store was a hot spot for drug activity, and the travelers in the Avenger seemed suspicious. Malunda's friend, who didn't have a license, retreated back into the parking lot. That made Brinkley more suspicious. He radioed for backup.

Minutes later, Brinkley, along with three arriving officers, approached the Avenger. Officer M.J. Cooper recognized Malunda from previous drug investigations.

To the police, Malunda seemed nervous. Brinkley would later testify that he could see Malunda's heart beating through his shirt.

Brinkley escorted Malunda out of the car, frisked him and asked him to sit on the curb. Malunda recalls it had recently rained, and mud had sullied the sidewalk. "My clothes go to the dry cleaners," he objected. Brinkley handcuffed Malunda and forced him to sit down for safety purposes.

Brinkley would testify that he smelled marijuana odor from the driver's side of the car but not from the passenger's side. ("The car didn't smell like weed, because we hadn't rolled the blunt yet," a skeptical Malunda says now.) Regardless, the officers searched the car and eventually found the pot.

Shortly after, Cooper decided to search Malunda's pockets. As he reached for his pants, Malunda kicked his hand away.

"In my head, I'm like, 'What the fuck is going on?'" Malunda says now, "I'm just thinking, this is illegal. This is so illegal."

Malunda says another officer grabbed his jeans from behind, allowing Cooper to continue his search. "You are violating my rights," said Malunda repeatedly. Cooper reached into a small compartment and pulled out a bag containing 10 smaller bags of crack and powder cocaine.

In its ruling, the Court of Appeals declared that marijuana odor is sufficient to establish probable cause to search in a car—but it cannot be used to search a passenger. "There was nothing linking the marijuana to defendant besides his presence in the vehicle," Judge John McCullough wrote in his opinion, reversing Malunda's conviction.

His legal troubles behind him, Malunda has business ambitions. After graduating from Wake Tech, he wants to privatize a zoo and tend to exotic animals. He is particularly fond of black panthers and spotted hyenas.

After taking his last sip of Bud Light Platinum and a final nibble of his pretzel at the Scottish pub, Malunda, sitting in the passenger seat of a car, offered directions to his house. Veering onto a quiet street, remote from the hustle-bustle of the city, Malunda says he likes living on a private road, far from the police.

This article appeared in print with the headline "Beat the rap"

  • Appeals court sides with Raleigh man who says police illegally searched him

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