State v. McKinney, No. COA08-243 (N.C. App. 12/16/2008)
| Decision Date | 16 December 2008 |
| Docket Number | No. COA08-243,COA08-243 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. GLENN DEVON McKINNEY |
Paul F. Herzog, for Defendant.
Glenn McKinney (Defendant) appeals from an order denying his motion to suppress evidence obtained from a residence at 1917 Drexel Road, in Greensboro, North Carolina. We affirm.
This appeal marks the second time that this Court has reviewed this case. The relevant factual and procedural background is set out in State v. McKinney, 361 N.C. 53, 637 S.E.2d 868 (2006) (McKinney I), and may be summarized as follows: On 17 May 2003, Greensboro police officers received information indicating that Defendant had killed his roommate, Jerry Alston. Law enforcement officers went to Alston's house at 1917 Drexel Road, and found it locked. Alston's brother, Ricky Alston, climbed through a window and then invited the law enforcement officers into the house. As they looked through Alston's home, the officers saw what appeared to be blood spatters on a bedroom wall. The officers then left the house and returned after obtaining a search warrant. In the course of executing the search warrant, the officers McKinney I, 361 N.C. at 55, 637 S.E.2d at 870. Thereafter:
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 . . . the officers' initial warrantless entry into the residence . . . [and] the validity of the subsequent search warrant. . . . [T]he 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.
McKinney I, 361 N.C. at 56, 637 S.E.2d at 870-71. On appeal, this Court reversed Defendant's conviction, holding that the initial police entry into the residence was unlawful, and therefore the subsequent search warrant was the "fruit of the `poisonous' tree." State v. McKinney, 174 N.C. App. 138, 141, 619 S.E.2d 901, 904 (2005). The North Carolina Supreme Court granted the State's petition for discretionary review and in McKinney I it affirmed in part, reversed in part, and remanded for further findings of fact by the trial court. The Court held that this Court "properly concluded `that the State failed to establish any exigent circumstances authorizing the officers' warrantless entry'" and "affirm[ed] that portion of the Court of Appeals decision which held that `to the extent that the trial court relied upon exigent circumstances in reaching its decision, . . . the trial court erred.'" McKinney I, 361 N.C. at 61, 637 S.E.2d at 874 (quoting State v. McKinney, 174 N.C. App. 138, 146, 619 S.E.2d 901, 907 (2005)). The Court reversed this Court's holding that the initial warrantless entry necessarily rendered the search warrant invalid, and held that the dispositive issue was whether the affidavit offered in support of the search warrant contained enough untainted evidence to support a finding of probable cause. Accordingly, the Court vacated this Court's reversal of Defendant's conviction and remanded to the trial court for findings on "whether the trial court would have found the evidence seized pursuant to the warrant admissible even if the tainted evidence had been excised from the warrant application." McKinney I, 361 N.C. at 63, 637 S.E.2d at 875.
In addition, the North Carolina Supreme Court held that:
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.
McKinney I, 361 N.C. at 57, 637 S.E.2d at 871.
On remand, the trial court conducted a hearing in September 2007 and entered an order on 4 October 2007. The court denied Defendant's suppression motion on three separate grounds. The trial court ruled that Defendant lacked standing to contest the warrantless entry at 1917 Drexel Road by police, because he had abandoned the premises prior to the officers' entry and search. The Court also concluded that the search warrant was valid because after excluding the `tainted' evidence, the warrant application still contained "an abundance of evidence to support a finding of probable cause by the issuing magistrate." In addition, the trial court ruled that "all evidence located within the premises at 1917 Drexel Road would have been inevitably discovered by law enforcement officials." From this order Defendant has appealed.
Defendant appeals the denial of his motion to suppress evidence. State v. Edwards, 185 N.C. App. 701, 702, 649 S.E.2d 646, 648, disc. rev. denied, 362 N.C. 89, 656 S.E.2d 281 (2007) (internal citations and quotations omitted). In the instant case, Defendant does not assign error to any of the trial court's findings of fact, which are therefore binding on appeal:
On a motion to suppress evidence, the trial court's findings of fact are conclusive on appeal if supported by competent evidence. Defendant has not assigned error to any specific finding of fact. Therefore, the findings of fact are not reviewable, and the only issue before us is whether the conclusions of law are supported by the findings, a question of law fully reviewable on appeal.
State v. Campbell, 359 N.C. 644, 661-62, 617 S.E.2d 1, 12 (2005) (citations omitted).
State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585 (1994) (citing State v. Mahaley, 332 N.C. 583, 592-93, 423 S.E.2d 58, 64 (1992)).
The Defendant's motion to suppress evidence asserted a violation of his U.S. Constitutional rights. . State v. Campbell, 359 N.C. at 659, 617 S.E.2d at 11 (citations omitted). However, "in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has `a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" Minnesota v. Carter, 525 U.S. 83, 88, 142 L. Ed. 2d 373, 379 (1998) (quoting Rakas v. Illinois, 439...
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