LAWSUIT IS FILED OVER CAR SEARCH

Durham Man Contends The State Highway Patrol Acted Improperly After His
Refusal.

DURHAM - Maurice McKellar Jr. admits that a state trooper had every right
to stop him last summer for speeding on Interstate 40. What made McKellar
file a lawsuit is everything that he says happened after he refused to let
the trooper search his car --the drug dog sniffing through his car, two
baseless criminal charges, painfully tight handcuffs and a trip to the
emergency room.

In a negligence claim filed against the agency that oversees the state
Highway Patrol, McKellar, a 34-year-old hospital worker from Durham,
contends that he was punished for exercising his constitutional right to
protect himself from an illegal search.

"The Highway Patrol has yet to say, 'I'm sorry for assuming that you were a
drug dealer,' " McKellar, a Persian Gulf War veteran, said in an interview.
"They have yet to say they were sorry for causing my hands to turn blue
from lack of circulation. They have yet to say, 'I'm sorry for falsely
arresting you.' They have yet to admit that they were wrong."

The officer who stopped McKellar for speeding, Trooper Fred J. Hargro Jr.,
referred all comments to patrol spokesman Sgt. Everett Clendenin. "I can't
divulge any information, because this is a personnel matter," Clendenin said.

In November, patrol commander Col. Richard Holden told McKellar in a letter
that state law prohibits him from discussing personnel actions. "However,
you can rest assured that I have reviewed the report of the investigation
and appropriate action has been taken."

A trooper since 1992, Hargro now works in Lincolnton.

John Rubin, a professor at the Institute of Government at UNC-Chapel Hill
and a co-author of the N.C. Defender Manual's chapter on stops and
warrantless searches, said a person has a general right to refuse a search
of his or her car. But he said an officer can "sweep" the car with or
without consent if he or she thinks that the driver or a passenger has a
weapon.

"That's a less extensive search, but if the officer develops probable cause
to search, the car can be searched," Rubin said. "But an officer has got to
have reasonable grounds."

In the view of McKellar and his attorney, Carlos E. Mahoney of Durham,
those grounds weren't there.

On June 23, 2001, Hargro pulled McKellar over on I-40 East near the
Morrisville exit for driving 79 mph in a 65 mph zone.

"They wanted to search my car for drugs," McKellar said. "I knew I didn't
have any drugs, but it's my constitutional right to refuse a search of my
car. When I said no, he should have given me my speeding ticket and let me
go on my way.

"I gave them no reason, and there was absolutely no reason for them to
search my car."

Instead, according the complaint, Hargro called for backup. Four more
troopers arrived, along with a drug dog from the Cary Police Department. In
McKellar's claim, he said after refusing three times to allow troopers to
search his 1993 Toyota Camry, Hargro then informed him that he was under
arrest for careless and reckless driving and speeding.

Once McKellar was arrested, Hargro then could search the car. The search
turned up a single anti-depressant pill, which McKellar said is prescribed
to him because he suffers from gulf war syndrome. Hargro then charged him
with possession of a controlled substance.

While on the scene, McKellar said he complained about the tightness of the
handcuffs. McKellar was taken to the Wake County public safety center,
where a magistrate dismissed the controlled substance charge and allowed
McKellar to go without posting bail. McKellar then took a $50 taxi ride
back to his car.

McKellar said he couldn't move his right hand after the cuffs were taken
off and that both hands were numb. He said he was told at Duke University
Medical Center, where McKellar also works, that nerves in his hands had
been damaged.

On Jan. 17, Wake County District Court Judge Craig Croom found McKellar not
guilty of careless and reckless driving. McKellar was given a prayer for
judgment on the speeding charge, which means if he doesn't get another
violation within a year, the charge will be dropped.

Clendenin said that the Highway Patrol received a complaint about the stop
and that an investigation was conducted. McKellar's tort claim was filed
June 12 against the N.C. Department of Crime Control and Public Safety, the
agency under which the Highway Patrol operates. The department has 30 days
to respond to the complaint, which contends that McKellar "suffered
humiliation, emotional distress, physical pain and mental suffering."

Because the negligence claim was filed with the Industrial Commission,
McKellar could be awarded up to $500,000. The Industrial Commission is set
up by the state to hear workers' compensation cases and to hear tort
claims, which allow people to sue a state employee or agency for negligent
actions.

Most people don't realize that they have a right to refuse an officer's
request to search their cars, said Seth Jaffe, a staff attorney with the
American Civil Liberties Union of North Carolina. Jaffe said motorists
should refuse a search if they think their rights are being violated but
that they also should cooperate with police.