State v. Church

• Decision Date: 15 June 1993
• Docket Number: No. 9223SC375,9223SC375
• Parties: STATE of North Carolina v. Mike Clay CHURCH.
• Court: North Carolina Court of Appeals

Page 462

430 S.E.2d 462

110 N.C.App. 569

STATE of North Carolina v. Mike Clay CHURCH.

No. 9223SC375.

Court of Appeals of North Carolina.

June 15, 1993.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Robin P. Pendergraft, Raleigh, for the State.

Vannoy, Colvard, Triplett & McLean by Howard C. Colvard, Jr. and Anthony R. Triplett, North Wilkesboro, for defendant appellant.

McCRODDEN, Judge.

In his only assignment of error, defendant contends that the trial court erred in denying his motion to suppress the evidence seized from his residence, premises, and outbuildings. This assignment of error requires us (I) to review the law enforcement officers' actions in discovering defendant's marijuana in plain view and, in so doing, to revisit, in light of Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), whether items seized under the "plain view" doctrine must be discovered inadvertently; (II) to determine whether a law enforcement officer who had no warrant conducted an illegal search when he inserted a key into a lock and attempted to look through a window; and (III) to decide whether officers performed an unlawful search of defendant's premises when, instead of obtaining a search warrant, they asked defendant's probation officer to search, and they assisted the probation officer in searching, defendant's premises as permitted under a condition of defendant's probation.

At the hearing on defendant's motion to suppress, the State's evidence tended to show that on 18 September 1990, a confidential informant told Special Agent Robert Risen ("Agent Risen") of the North Carolina State Bureau of Investigation that marijuana was being grown outside a white frame house located behind C & J Oil Company in Miller's Creek. Prior to this occasion, the informant had never provided information to Agent Risen.

On 19 September 1990, at 3:30 p.m., Agent Risen and Special Agent Jeff Sellers ("Agent Sellers") drove to Miller's Creek to conduct a general investigation of the area. At Miller's Creek the agents discovered a white frame house and a second house with wood siding, which was located approximately 150 feet west of the white frame house. The agents walked to the front porch of the white house, knocked on the door, and received no answer. From the front porch, they observed two marijuana plants growing along a fence that ran from the white house to another residence east of the white house and a third marijuana plant growing directly behind the second house. All plants were about eight feet tall and were growing in the yard between the white frame and wood sided houses.

After observing the marijuana plants, the agents walked to the second house to determine who lived in the houses. Agent Sellers knocked on the front and side doors and then observed the defendant walk from the garage, which was adjacent to the second house. When asked whether he had come from the garage, the defendant denied having been inside the garage. Defendant informed the agents that he owned both houses, but lived in the second house. The agents, having no warrant, asked defendant if they could search the houses and garage, but he refused.

After placing defendant under arrest, the agents asked him for a garage door key, which defendant produced. Agent Risen inserted the key in the lock, found that it fit, and withdrew the key without opening the door. While there, Agent Risen attempted to look through the side windows of the garage, but was unable to see inside because the windows were blocked.

While Agent Sellers remained at the defendant's house, Agent Risen transported the defendant to the county jail and began working on an application for a search warrant. After receiving information from another officer that defendant was currently on probation, Agent Risen contacted the probation officer, Sandra Rankin, who confirmed that the defendant was on supervised probation and that, as a condition of that probation, the defendant was obligated to consent to warrantless searches by a probation officer.

Agent Risen informed Ms. Rankin that he had discovered marijuana plants growing outside defendant's house, and he asked Ms. Rankin if she would be interested in conducting a search of the defendant's premises pursuant to the special conditions of probation. Ms. Rankin stated that she would be willing to conduct a warrantless search if she saw marijuana growing outside the defendant's house and determined that the plants more than likely belonged to the defendant. Although she had visited defendant's residence three times, Ms. Rankin had no plans to search the defendant's property prior to 19 September 1990.

Agent Risen ceased his application for a search warrant, and he, Ms. Rankin, and the defendant returned to the defendant's residence. Once there, Ms. Rankin saw the marijuana plants, determined that the plants probably belonged to the defendant, and authorized a search of defendant's premises. Ms. Rankin and nine law enforcement officers conducted the search during which Ms. Rankin discovered additional marijuana plants in the garage, a rifle in the defendant's bedroom, and six baggies of marijuana in the kitchen.

I.

Defendant contends that within this factual setting there were three violations of his Fourth Amendment rights. First, although he does not contest that the marijuana plants growing in his yard were in plain view, defendant contends that the evidence of those plants should be suppressed because Agents Risen and Sellers entered his property without a warrant and because the officers did not discover the plants inadvertently.

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh'g denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), the United States Supreme Court held that under certain circumstances, law enforcement officers may seize evidence in plain view without a search warrant. Following Coolidge, North Carolina courts have held that police may, without a warrant, seize evidence which is in plain view if three requirements are met. "First, the initial intrusion which brings the evidence into plain view must be lawful. Second, the discovery of the incriminating evidence must be inadvertent. Third, it must be immediately apparent to the police that the items observed constitute evidence of a crime, are contraband, or are otherwise subject to seizure." State v. Williams, 315 N.C. 310, 317, 338 S.E.2d 75, 80 (1986) (citation omitted). We confine our analysis to what the courts heretofore have interpreted as the three requirements resulting from Coolidge.

Defendant's first contention relates to the first requirement and is that, since he had a reasonable expectation of privacy in his yard, the officers' warrantless entry onto his property violated that expectation and was unlawful. We disagree. In State v. Prevette, 43 N.C.App. 450, 455, 259 S.E.2d 595, 599-600 (1979), disc. rev. denied, 299 N.C. 124, 261 S.E.2d 925-26, cert. denied, 447 U.S. 906, 100 S.Ct. 2988, 64 L.Ed.2d 855 (1980), this Court held that, when officers enter private property for the purpose of a general inquiry or interview, their presence is proper and lawful. The Court further stated that "officers are entitled to go to a door to inquire about a matter; they are not trespassers under these circumstances." Id. In that case, the Court upheld the denial of defendant's motion to suppress marijuana found in defendant's house when the evidence showed that officers received an anonymous tip that a house near a dairy farm was full of marijuana; that after deciding the information was not sufficient to obtain a search warrant, they went to the area to conduct a general investigation and, while standing on the front porch, discovered marijuana in defendant's house in plain view. Id. at 453,...