State v. Smith
| Decision Date | 24 July 1997 |
| Docket Number | No. 309PA96,309PA96 |
| Citation | 488 S.E.2d 210,346 N.C. 794 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina, v. Kenneth E. SMITH. |
Michael F. Easley, Attorney General by Jane R. Garvey, Assistant Attorney General, for State-appellant.
Daniel S. Johnson, Winston Salem, for defendant-appellee.
Winston-Salem Police Department by Mary Claire McNaught, on behalf of North Carolina Association of Police Attorneys, North Carolina Association of Chiefs of Police, and North Carolina Police Executives Association, amici curiae.
On 24 April 1995 defendant was indicted for possession of marijuana with intent to sell and deliver. Defendant filed a motion to suppress evidence seized during a warrantless search of defendant's residence on 20 January 1995. At the hearing on defendant's motion, the trial court concluded that defendant's constitutional rights were violated by the warrantless search and granted defendant's motion to suppress.
The order allowing defendant's motion to suppress contains the following findings of fact. Prior to 20 January 1995 Detective E.M. Ruiz of the Winston-Salem Police Department received information that defendant possessed drugs at his residence. Detective Ruiz obtained this information from defendant's girlfriend, Janet Abrams. On 20 January 1995 Abrams called Ruiz and informed Ruiz that the drugs were located in a black suitcase and a black trunk in the room Abrams shared with defendant. Detective Ruiz relayed this information to Detective J.D. Cooke, also with the Winston-Salem Police Department. The detectives concluded they did not have sufficient information to obtain a search warrant for defendant's residence and decided to use a procedure known as "knock and talk."
The trial court made the following findings concerning the "knock and talk" procedure.
The "knock and talk" procedure is a tactic used by law enforcement in Winston-Salem when they get information that a certain person has drugs in a residence but the officers don't have probable cause for a search warrant. The officers then proceed to the residence, knock on the door, and ask to be admitted inside. Thereafter gaining entry, the officers inform the person that they're investigating information that drugs are in the house. The officers then ask for permission to search and apparently are successful in many cases in getting the occupant's "apparent consent".
The trial court found that in the instant case Abrams told Ruiz in advance that she would give consent to search the bedroom she shared with defendant. Detective Cooke and Detective Ruiz arrived at defendant's residence with three additional officers and a K-9 dog. The trial court also made the following findings:
That Detective Ruiz and Detective Cooke approached the door, knocked on the door. That a James Walters came to the door. The two officers were in plainclothes with a badge and guns in holsters and that the other three officers and the dog remained in the van in front of the house. That the officers asked Mr. Walters if they could come in rather than stand outside. That they then went inside. That Officer Ruiz advised Mr. Walters they were investigating drugs and had information that Kenneth Smith had the drugs there in that residence. That Officer Ruiz asked Mr. Walters if they could search and he gave permission to search the common areas and said he had the bedroom in the basement where he slept on a couch.
Additional findings were that the other three officers and the K-9 dog then entered the house and conducted a search in these areas. No controlled substances were found. Detective Ruiz asked Abrams if the officers could search the bedroom she occupied with defendant, "to which she had already stated that she would give consent." The K-9 dog entered the room and indicated that drugs were in a suitcase and a black trunk located in the bedroom closet. A bag of marijuana was also found in the closet.
Based on these findings the trial court concluded that defendant's constitutional rights had been violated and granted defendant's motion to suppress. The State appealed to the Court of Appeals, which affirmed the order granting defendant's motion to suppress. On 16 July 1996 the State filed a petition for discretionary review pursuant to N.C.G.S. § 7A-31 and a notice of appeal of a constitutional question pursuant to N.C.G.S. § 7A-30. On 5 September 1996 this Court granted defendant's petition for discretionary review.
In reviewing the trial court's order following a motion to suppress, we are bound by the trial court's findings of fact if such findings are supported by competent evidence in the record; but the conclusions of law are fully reviewable on appeal. State v. Mahaley, 332 N.C. 583, 592-93, 423 S.E.2d 58, 64 (1992), cert. denied, 513 U.S. 1089, 115 S.Ct. 749, 130 L.Ed.2d 649 (1995).
With the exception of a few immaterial discrepancies, the State does not take issue with the findings of fact set out by the trial court. The State does, however, contest the trial court's conclusions of law which were as follows:
BASED ON THE FOREGOING, the Court concludes that the defendant's constitutional rights were violated in that the officers entered inside the house without a search warrant in an effort to circumvent the Fourth Amendment by searching the house without a search warrant. The Court further concludes that under the facts of this case the consent given by Mr. Walters was also to get around the Fourth Amendment and that initial entry into the house was a violation of the Fourth Amendment and that the later consent could not validate the search. Even if the officers had probable cause, it does not excuse their failure to obtain a search warrant.
We agree with the State that the trial court erred in its conclusions of law.
The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994). Similarly, the Constitution of the State of North Carolina provides that "[g]eneral 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." N.C. Const. art. I, § 20.
"It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 651 (1980). Consent, however, has long been recognized as a special situation excepted from the warrant requirement, and a search is not unreasonable within the meaning of the Fourth Amendment when lawful consent to the search is given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). For the warrantless, consensual search to pass muster under the Fourth Amendment, consent must be given and the consent must be voluntary. Id. at 222, 93 S.Ct. at 2045, 36 L.Ed.2d at 860. Whether the consent is voluntary is to be determined from the totality of the circumstances. Id. at 227, 93 S.Ct. at 2047-48, 36 L.Ed.2d at 863.
Similarly, N.C.G.S. § 15A-221(a) provides for warrantless searches and seizures "if consent to the search is given." Under N.C.G.S. § 15A-221(b) " 'consent' means a statement to the officer, made voluntarily ..., giving the officer permission to make a search." See also State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991).
From the findings made by the trial court, we find no support for the conclusion that defendant's constitutional rights were violated "in that the officers entered inside the house without a search warrant in an...
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It doesn't matter what they intended: the need for objective permissibility review of police-created exigencies in "knock and talk" investigations.
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