State v. McKinney

• Decision Date: 15 December 2006
• Docket Number: No. 622PA05.,622PA05.
• Citation: 637 S.E.2d 868
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Glenn Devon McKINNEY.

Page 868

637 S.E.2d 868

STATE of North Carolina v. Glenn Devon McKINNEY.

No. 622PA05.

Supreme Court of North Carolina.

December 15, 2006.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 174 N.C.App. 138, 619 S.E.2d 901 (2005), reversing defendant's conviction and the resulting judgment entered 16 April 2004 by Judge L. Todd Burke in Superior Court, Guilford County, and ordering a new trial. Heard in the Supreme Court 19 April 2006.

Roy Cooper, Attorney General, by William B. Crumpler, Assistant Attorney General, for the state-appellant.

Paul F. Herzog, Fayetteville, for defendant-appellee.

MARTIN, Justice.

Defendant was convicted of first-degree murder in the death of his roommate, Jerry Louis Alston. We affirm in part, reverse in part, and remand with instructions.

On 17 May 2003, Amy Millikan (Amy) advised Greensboro Police Sergeant D.S. Morgan that her roommate, Aja Snipes (Aja), had confided in her that Aja's friend, "Phoenix," had killed his roommate. Amy provided an address on Drexel Road where she believed "Phoenix" lived, although the house number was later determined to be incorrect. Sergeant Morgan relayed this information to Sergeant Jane Allen and dispatched two other officers to the scene. "Phoenix" was later identified as defendant, Glenn Devon McKinney.

Sergeant Morgan drove to Amy and Aja's apartment to interview Aja about her knowledge of the crime. Aja's description of the house where the victim and defendant lived was relayed to Sergeant Allen, who by that time had arrived at Drexel Road. Two other officers were knocking on doors and checking with neighbors to see if they were aware of two males living on Drexel Road. The officers focused on 1917 Drexel Road because "that's the house that seemed to match the description that was being given."

When Sergeant Allen arrived at 1917 Drexel Road, the residence was locked and secured. Sergeant Morgan informed Sergeant Allen that defendant was reportedly driving the victim's blue Jeep Cherokee, and Sergeant Allen noted that the Jeep was not in the driveway. The victim's sister, Irma Alston (Irma), arrived and informed Sergeant Allen that her brother lived at 1917 Drexel Road. Irma called her brother, Ricky Alston (Ricky), because she believed that he had a key to the house, although when he arrived on the scene he did not have a key with him. Neither Irma nor Ricky had heard from the victim in several days. Sergeant Allen contacted the victim's employer and learned that the victim had not reported for work the day before as scheduled, which was very unusual.

Sergeant Allen continued to gather information, speaking by telephone with the officers who were interviewing Aja and Amy and hearing conversations between other officers and the victim's family members, who had begun to congregate on the sidewalk outside the residence. Sergeant Allen learned that defendant had told Aja that the victim "pulled a knife on me. I didn't know what else to do," and defendant added that the victim "wouldn't be coming back." When Sergeant Allen returned to the residence after briefly leaving the scene, she found that Ricky had entered defendant's house. After removing an air conditioning unit and climbing through the window, Ricky invited the officers into the house. Accompanied by Sergeant Morgan, who by this time had arrived on the scene, Sergeant Allen entered the residence. The officers later testified that they entered the house to look for "a victim who [might] be in need of assistance" and "for any sign that ... there may in fact have been an assault there, and perhaps ... a victim somewhere else that [they] needed to continue a search for." As they went through the house, the officers saw what appeared to be blood spatter in the front bedroom. After this discovery, they left the house, instructed other officers to secure the scene, and went to obtain a search warrant.

After securing a search warrant, Sergeant Allen returned to the residence with Detective David Spagnola. While crime scene specialists investigated the front bedroom, Sergeant Allen and Detective Spagnola noticed a large, city-issued trash can in the laundry room. A towel and two candles were on the lid of the can. The officers believed it was unusual for the trash can to be inside the house, and because Detective Spagnola was unable to lift it, they realized it might contain a victim. The officers asked one of the crime scene specialists to photograph the trash can and its contents. Underneath the towel on the lid of the can was a computer-generated note that said "Glenn Devon McKinney did this." When the officers opened the trash can, they discovered the victim's body inside.

Defendant was tried non-capitally, convicted of first-degree murder, and sentenced to life imprisonment without parole. Before trial, defendant filed a motion to suppress the evidence obtained from 1917 Drexel Road. His motion challenged not only the officers' initial warrantless entry into the residence at that address, but also the validity of the subsequent search warrant. Defendant contended that the search warrant was invalid because probable cause for issuing the warrant was based in part on the blood spatter evidence obtained by police during their initial entry into the residence. He argued that all evidence seized during the subsequent search should be suppressed, including the victim's body. In response, the state argued that defendant lacked standing to object to the initial warrantless entry of the house, and, in the alternative, that exigent circumstances authorized law enforcement officials to enter the residence. The trial court denied defendant's motion to suppress.

On appeal, the Court of Appeals reversed defendant's conviction, holding that the trial court erred in denying defendant's motion to suppress because the initial police entry into the residence was unlawful and therefore the subsequent search warrant was "fruit of the poisonous tree." State v. McKinney, 174 N.C.App. 138, 141, 619 S.E.2d 901, 904 (2005). This Court allowed the state's petition for discretionary review.

We first examine whether defendant had standing to contest the police searches of the victim's house. When the competency of evidence is challenged and the trial court conducts a voir dire to determine admissibility, the general rule is that it should make findings of fact to show the basis of its ruling. State v. Steen, 352 N.C. 227, 237, 536 S.E.2d 1, 7 (2000), cert. denied, 531 U.S. 1167, 121 S.Ct. 1131, 148 L.Ed.2d 997 (2001). If there is a material conflict in the evidence on voir dire, the trial court is required to make findings in order to resolve the conflict. State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601, cert. denied, 403 U.S. 934, 91 S.Ct. 2266, 29 L.Ed.2d 715 (1971). In the instant case, the trial court failed to make the requisite findings on the issue of whether defendant had standing to challenge the searches of the victim's house.

A defendant has standing to contest a search if he or she has a reasonable expectation of privacy in the property to be searched. See State v. Mlo, 335 N.C. 353, 378, 440 S.E.2d 98, 110-11, cert denied, 512 U.S. 1224, 114 S.Ct. 2716, 129 L.Ed.2d 841 (1994). A reasonable expectation of privacy in real property may be surrendered, however, if the property is permanently abandoned. See, e.g., United States v. Stevenson, 396 F.3d 538, 544-47 (4th Cir.) (holding defendant lacked standing to contest search of apartment when evidence "strongly suggest[ed] that he did not intend to return to it"), cert. denied, 544 U.S. 1067, 125 S.Ct. 2534, 161 L.Ed.2d 1122 (2005); see also Abel v. United States, 362 U.S. 217, 240-41, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (upholding search of hotel room because "at the time of the search [defendant] had vacated the room"). When a defendant temporarily abandons property, an intent to return will give rise to a reasonable expectation of privacy. See United States v. Mulder, 808 F.2d 1346, 1348 (9th Cir.1987) (holding defendant had standing to challenge search of hotel room where he returned to hotel only forty-eight hours later than originally intended, hotel billed his credit card for an extra day, and he contacted police to inquire about items later seized); United States v. Robinson, 430 F.2d 1141, 1143-44 (6th Cir.1970) (holding that prosecution failed to establish abandonment of apartment justifying warrantless search thereof when the only admissible evidence of abandonment was premised on defendant's absence and nonpayment of rent for over a month, which shed no light on whether he intended to return). "[A]bandonment will not be presumed ... [and] must be clearly shown." Robinson, 430 F.2d at 1143.

During the suppression hearing in the instant case, the prosecutor raised and properly preserved the issue of defendant's standing to contest the search. Conflicting evidence was presented as to whether defendant maintained a reasonable expectation of privacy in the premises. The trial court did not resolve this conflicting evidence or issue any conclusions as to whether such facts gave rise to a reasonable expectation by defendant of privacy in the victim's residence at the time the search was conducted. Because of this omission, defendant's standing to contest the validity of the search is unclear, and, though we express no opinion on this question, our standard of review compels us to remand the case for findings of fact on this issue.

We now consider the propriety of the initial, warrantless search and the existence of probable cause to support the search warrant. The Fourth Amendment to the United States Constitution protects individuals "against unreasonable searches and seizures" and provides that search warrants may only be issued "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be...