State v. Barnes

• Decision Date: 01 July 2003
• Docket Number: No. COA02-1418.,COA02-1418.
• Citation: State v. Barnes, 582 S.E.2d 313, 158 N.C. App. 606 (N.C. App. 2003)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Shontez Anterio BARNES.

582 S.E.2d 313

158 NC App. 606

STATE of North Carolina v. Shontez Anterio BARNES.

No. COA02-1418.

Court of Appeals of North Carolina.

July 1, 2003.

Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

Hosford & Hosford, P.L.L.C., by Sophie W. Hosford, Wilmington, for defendant-appellant.

LEVINSON, Judge.

Defendant (Shontez Barnes) appeals from convictions of possession of cocaine and possession with intent to sell and deliver cocaine. For the reasons that follow, we reverse and remand.

On 21 September 2000, law enforcement officers entered a residence located at 210 N. East Street, ("the house") in Wilson, North Carolina, where the defendant was present. Shortly after entering the house, the police saw what appeared to be cocaine either falling, or being dropped, from defendant's pocket. The law enforcement officer confiscated the cocaine, and searched the defendant, who was also in possession of approximately $390 in currency. Defendant was arrested and charged with possession of cocaine, and possession with intent to sell and deliver cocaine. The house was searched and other items were discovered, including currency, crack cocaine, marijuana, two sets of scales, a night vision monocle, and two walkie-talkies. Several other individuals were found within the house, and some were charged with various offenses. Prior to trial, defendant filed a motion to suppress the evidence seized from his person and from the house at the time of his arrest.

A voir dire was conducted during trial, at which time testimony was elicited from one witness, Officer Jeff Boykin of the Wilson Police Department, the officer who had searched and arrested defendant. Boykin testified that he had been observing the house for more than a month. During this time, Boykin often saw defendant sitting or standing on the porch of the house, and noticed that defendant sometimes ran inside the house when the police approached it. Boykin also testified that he observed an unusually high number of visitors to the house, most of whom left after a brief visit. Additionally, two weeks before defendant's arrest, Boykin received a tip from a confidential informant that several people, including the defendant, were selling drugs at the house. Based on information from the informant and on his own observations, Boykin suspected that drugs were being sold in the house. Consequently, he went to the house about two weeks before defendant's arrest, knocked, and spoke with Ms. Carolyn Simms, the person in whose name the house was rented. Boykin warned Simms that she would face legal consequences if she could not "control" the activities within the house. Although Boykin knew defendant was present at the house, he did not speak with him at that time.

Shortly after midnight on 21 September 2000, Boykin and three other law enforcement officers approached the house on bicycles. Boykin testified that "[t]he way the residence is laid out ... if there's anybody on the porch, they won't see you ... until the last possible second when you're in front of them." Boykin stated that on the night in question "it was dark, we were quiet. [At the l]ast possible second, we got in front of that house[ ]" whereupon Boykin "shined [his] flashlight onto the porch[.]" At that point the defendant and another man "jumped out of their chair, acted like they were scared, and attempted to go in the front door." When Boykin saw defendant and the other man getting up from their chairs to go inside the house, he and the other officers set down their bicycles and went up the steps and into the house. When they got inside, Boykin saw defendant with his hand inside his pocket, then saw a bag of what appeared to be crack cocaine fall out onto a coffee table. Thereupon, Boykin searched and arrested defendant, while the other law enforcement officers searched the rest of the house.

At the close of the voir dire, the trial court ruled that the cocaine and money seized from defendant's person were admissible at trial, but that evidence of the other items found in the house should be suppressed. At trial, defendant was convicted of possession of cocaine and possession with intent to sell and deliver cocaine. He was sentenced for possession with intent to sell and deliver cocaine, and judgment was arrested on the charge of possession of cocaine. From this conviction and sentence, defendant appeals.

Defendant argues on appeal that the trial court erred by denying his motion to suppress the cocaine and money seized from him when the law enforcement officers followed him inside the house. We conclude that the trial court's order was based upon errors of law, and must be reversed.

In its ruling on defendant's suppression motion, the trial court stated, in pertinent part, the following:

Unless search exists from the mere fact of the officers entering the home, that does not concern me, and the issue of search as such in the home is a matter that this defendant, nothing else appearing, has the right or the standing to raise.

I do not think that there was a search as of such involving the defendant because,... the drugs appeared on the table as having fallen from his pocket. I think it's a better practice to be used under the totality of the situation that these officers—better police practice would have been to—to obtain a warrant. The [confidential informant's] information per two weeks, nothing else appearing, would probably be stale.

(emphasis added). Thus, in its ruling on defendant's suppression motion, the trial court apparently (1) held that the "mere" entry into the house by law enforcement officers did not constitute a search; (2) assumed that, "nothing else appearing" the defendant had standing to contest the search of the house; and (3) concluded that the cocaine was not seized pursuant to a search of defendant, because it was in plain view of the officer. In these assumptions and conclusions, the trial court erred.

The Fourth Amendment to the U.S. Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Similarly, the Constitution of the State of North Carolina provides that `general warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.'

State v. Grooms, 353 N.C. 50, 73, 540 S.E.2d 713, 728 (2000) (quoting N.C. Const. art. I, § 20) (citing State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994)), cert. denied, 534 U.S. 838, 122 S.Ct. 93, 151 L.Ed.2d 54 (2001).

In the instant case, the trial court held that the "mere" entry into the house by law enforcement officers was not a "search" within the meaning of the Fourth Amendment. However, generally speaking, an intrusion into a residence is a search within the meaning of the Fourth Amendment, for "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2135, 32 L.Ed.2d 752, 764 (1972). Indeed, exclusion of the government from one's dwelling lies at the heart of the Fourth Amendment:

A man's home is his castle. The storm and wind may enter, but the King cannot enter, and all the forces of the Crown cannot cross the threshold of his ruined tenement. These words by Lord Eldon served as the basis for that portion of the Fourth Amendment in the Bill of Rights declaring that the people shall be secure in their houses against unreasonable searches and seizures.

Pledger v. State, 257 Ga.App. 794, 797, 572 S.E.2d 348, 351 (2002). The United States Supreme Court recently held:

`At the very core' of the Fourth Amendment `stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no ... in the case of the search of a home's interior ... there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable.

Kyllo v. United States, 533 U.S. 27, 31, 34, 121 S.Ct. 2038, 2043, 150 L.Ed.2d 94, 100 (2001) (police use of thermal imager to obtain information about inside of house constituted a search for 4th Amendment purposes) (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734, 739 (1961)); see also State v. Tarantino, 322 N.C. 386, 368 S.E.2d 588 (1988) (officer's use of flashlight to peer between cracks of boarded up outbuilding is a search within the meaning of the Fourth Amendment), cert. denied, 489 U.S. 1010, 109 S.Ct. 1117, 103 L.Ed.2d 180 (1989); State v. Wooding, 117 N.C.App. 109, 449 S.E.2d 760 (1994) (finding unlawful search of apartment where officer looked in through small gap in curtains). We conclude that the law enforcement officers' entry into the house constituted a "search" for purposes of the Fourth Amendment. Moreover, "`[i]t is a basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable.' " State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997) (quoting Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 651 (1980)). In Payton, the United States Supreme Court stated:

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not

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