Opinion
No. COA11–1336.
2012-07-17
STATE of North Carolina v. Daniel Darnell DAVIS.
Attorney General Roy Cooper by Assistant Attorney General Derrick C. Mertz for the State. George M. Cleland and George M. Cleland, IV for defendant-appellee.
Appeal by the State from order entered 19 October 2011 by Judge Richard W. Stone in Forsyth County Superior Court. Heard in the Court of Appeals 25 April 2012. Attorney General Roy Cooper by Assistant Attorney General Derrick C. Mertz for the State. George M. Cleland and George M. Cleland, IV for defendant-appellee.
STEELMAN, Judge.
Where the facts in this case are indistinguishable from those in State v. Stover, the trial court erred in granting defendant's motion to suppress.
I. Factual and Procedural Background
This case arises out of drug and firearm charges against Daniel Darnell Davis (defendant). The facts recited below are from testimony introduced by the State at a hearing held upon defendant's motion to suppress.
On 15 September 2010, Officer Hashon L. Geddings (Officer Geddings) of the Winston–Salem Police Department received a Crime Stoppers' tip advising that defendant was selling crack cocaine from his motor vehicle. The caller advised Officer Geddings that defendant maintained a trailer at 419 Byerly Road in addition to his residence. On 16 November 2010, Officer Geddings proceeded to the Byerly Road address to attempt a “knock and talk.” No one appeared to be home. The next day, Officer Geddings made a similar attempt and again received no answer despite several lights and the television being on at the trailer. While at the door of the trailer, Officer Geddings detected the odor of marijuana emanating from the trailer. On 22 November 2010, Officer Geddings returned to the trailer. Before making a third attempt at a “knock and talk,” Officer Geddings conducted surveillance until he observed a gold vehicle pull out of the driveway to the trailer. Officer Geddings and Officer Flint approached the trailer. When the officers walked up the driveway, a dog barked, alerting the occupants of the trailer. Officer Geddings observed a black male, who was later identified as defendant, peek out of the window. As the officers approached the trailer, they detected “an overwhelming smell of marijuana.” A third officer, S.E. Woods, went to the back of the trailer, where he also smelled the “pungent odor” of marijuana emanating from an air conditioning unit located in a window of the trailer Officer Geddings continued knocking on the door, but there was no answer.
The officers then moved away from the trailer, and Officer Geddings began preparing an application for a search warrant. This process was interrupted, however, when a vehicle pulled into the driveway. The officers then returned to the residence. The driver of the vehicle, later identified as Nicole Friend (Friend), exited and was observed at the top of the front stoop. The front door was open. Defendant was standing in the doorway inside the mobile home. Friend was asked by the officers to step outside. Defendant then exited the trailer and attempted to close the door. The door did not remain closed because there was no doorknob. When Officer Geddings attempted to step onto the front stoop, defendant stepped in front of the door, effectively blocking the door. Defendant was detained, and the officers conducted what they characterized as a “protective sweep of the residence,” to determine if there were other persons in the residence. During the “protective sweep” the officers observed in plain view several marijuana blunts, a marijuana pipe, plastic baggies and baking soda. The smell of marijuana was pervasive throughout the residence. The officers then exited the trailer, and Officer Geddings completed the application for the search warrant. The search warrant was subsequently executed. During the course of the search of the trailer, approximately 29 grams of cocaine were discovered, along with a 25 caliber Titan automatic pistol.
Defendant was indicted for possession with intent to sell or deliver cocaine, possession of less than 1/2 ounce of marijuana, possession of drug paraphernalia, possession of a firearm by a felon, and for being an habitual felon. On 3 December 2010, defendant filed a motion to suppress the evidence seized as a result of the search of the trailer. On 17 October 2011, the trial court entered a written order granting defendant's motion to suppress the evidence seized pursuant to the search warrant.
On 22 August 2011, the State gave notice of appeal. On 30 September 2011, the State made the certification required under N.C. Gen.Stat. 15A–979(c).
II. Initial Protective Sweep
The State contends that the trial court erred in granting defendant's motion to suppress because sufficient exigent circumstances existed to justify the warrantless entry and search. We agree.
A. Standard of Review
Our review of a trial court's grant of a motion to suppress is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). The trial court's conclusions of law are fully reviewable on appeal. State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
B. Analysis
It is a “basic principle of Fourth Amendment law” that searches and seizures inside a home absent a warrant are presumptively unreasonable, and that the search or seizure carried out on the suspect's premises without a warrant is per se unreasonable unless the State can show that it falls within one of a carefully designed set of exceptions based on presence of “exigent circumstances.” Payton v. New York, 445 U.S. 573, 587, 63 L.Ed.2d 639, 649–51 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443, 474–75, 29 L.Ed.2d 564, 587–88 (1971)). This is true even in circumstances where a felony has been committed and there is probable cause to believe that incriminating evidence will be found within. Id. at 587–88,63 L.Ed.2d at 651–52. To justify a warrantless entry of a residence, there must be both exigent circumstances, which would warrant an exception to the requirement of a search warrant, and probable cause. State v. Wallace, 111 N.C.App. 581, 586, 433 S.E.2d 238, 241 (1993). The burden is placed on the State to prove the existence of exigent circumstances. Chimel v. California, 395 U.S. 752, 762, 23 L.Ed.2d 685, 693 (1969).
Our Supreme Court noted that the United States Supreme Court has indicated that “ ‘imminent destruction of evidence, or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling’ “ could constitute exigent circumstances. State v. Guevara, 349 N.C. 243, 250, 506 S.E.2d 711, 716 (1998) (quoting Minnesota v. Olson, 495 U.S. 91, 100, 109 L.Ed.2d 85, 95 (1990)).
The State argues that the “protective sweep” was conducted due to the officers' reasonable fear that there could have been someone else in the residence who either posed a threat to their safety or who could have been destroying evidence.
North Carolina has adopted a “totality of the circumstances” test to determine whether sufficient exigency exists to justify the warrantless entry into a defendant's home. State v. Yananokwiak, 65 N.C.App. 513, 517, 309 S.E.2d 560, 563 (1983). In the instant case, it is undisputed that law enforcement officers entered defendant's residence without a warrant. However, the question is whether the search is both supported by probable cause and justified by sufficient exigent circumstances.
Probable cause exists where the facts and circumstances within their [the officers'] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.
State v. Downing, 169 N.C.App. 790, 795, 613 S.E.2d 35, 39 (2005) (internal quotation marks omitted) (alterations in original) (quoting State v. Earhart, 134 N.C.App. 130, 133, 516 S.E.2d 883, 886 (1999)).
In the instant case, the officers were at the house to conduct a knock and talk and detected a strong odor of marijuana. It is well settled that the “[p]lain smell of drugs by an officer is evidence to conclude there is probable cause for a search.” Id. at 796,613 S.E.2d at 39 (citing State v. Trapper, 48 N.C.App. 481, 484–85, 269 S.E.2d 680, 682 (1980)).
In addition to probable cause, the situation must have presented exigent circumstances in order to justify the officers' entrance into defendant's house. This issue is controlled by our decision in State v. Stover, 200 N.C.App. 506, 685 S.E.2d 127 (2009). In Stover, officers approached a residence in Asheville to conduct a “knock and talk” and perceived a “strong odor of marijuana.” Id. at 507, 685 S.E.2d at 129. Defendant was at one of the windows of the residence. After securing defendant, police conducted a “protective sweep” of the residence during the course of which they observed marijuana and drug paraphernalia in plain view. Id. at 508, 685 S.E.2d at 129–30. We held that, under those facts, sufficient probable cause and exigent circumstances existed to support the warrantless “protective sweep” of the residence.
We hold the facts of Stover to be indistinguishable from those of the instant case, and its holding to be controlling. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
In the instant case, the officers had no indication whether there were other persons inside the residence. Having observed Friend arrive only moments earlier, it was reasonable for the officers to conclude that someone besides defendant might have been within the residence. This belief was supported by the fact that defendant was blocking Officer Geddings from the doorway, raising his suspicion that defendant may have been attempting to delay him to allow someone inside to hide or destroy evidence.
We hold that both probable cause and exigent circumstances existed when officers entered defendant's residence and conducted a protective sweep. Because the officers legally entered defendant's house and saw the drugs and paraphernalia seized in plain view during their protective sweep, the trial court erred in granting the motion to suppress.
The order of the trial court is reversed.
REVERSED AND REMANDED. Judge CALABRIA concurs.
Judge BEASLEY concurs in separate opinion.
Report per Rule 30(e). BEASLEY, Judge, concurring with separate opinion.
Although I concur with the majority's holding that the trial court's order must be reversed, I write separately because I do not believe that exigent circumstances existed to justify the officers' warrantless entry into Defendant's home and I would decide this case on other grounds.
In reversing the trial court's order, the majority relies on our decision in State v. Stover, 200 N.C.App. 506, 685 S.E.2d 127 (2009) for the proposition that sufficient probable cause and exigent circumstances existed to support a warrantless search of Defendant's home. While I agree with the majority's conclusion that the strong smell of marijuana the officers detected is sufficient to establish probable cause for a search as in Stover, because there were no exigent circumstances inter alia, I cannot agree that the facts of Stover are “indistinguishable from those of the instant case” and thus its holding is controlling here. In Stover, after the officers arrived at the residence and smelled marijuana, they “heard a noise from the back of the house and saw defendant, whose upper torso was partially out a window.” Id. at 513, 685 S.E.2d at 132–33. Based on these facts, we concluded that the officers could reasonably have believed that defendant was about to flee the scene considering the smell of marijuana combined with the perceived attempt at flight. Id. Further, in Stover, there was no likelihood that evidence would be destroyed because after the officer discovered defendant hanging out of the window, he informed them that he had “lots of weed” and invited them to enter his house.
Here, officers did not hear any noises from the back of the home, nor did they see anyone attempt to flee. Thus this case is easily distinguishable from Stover. The State argues that the officers did not know if there was anyone else in Defendant's home, and that when Defendant failed to let them enter, they “reasonably suspected” that Defendant was trying to give others a chance to either hide or destroy evidence in the residence. As the officers were without a warrant, Defendant had the right to disallow them entry into his residence. That act alone, without any additional facts giving rise to the officers' suspicions, is simply not enough to establish exigent circumstances required for a warrantless search. Because I believe there were no exigent circumstances, I would not reverse the trial court's order granting Defendant's motion to suppress on those grounds.
However, the State makes a compelling alternative argument that the suppressed evidence was inevitably discovered by lawful means, and thus the trial court erred in granting Defendant's motion. This argument was not considered by the majority due to its conclusion that exigent circumstances were present, but because I would hold otherwise, I would also address the issue of inevitable discovery.
“ ‘If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale [for the exclusion of illegally obtained evidence] has so little basis that the evidence should be received [.]’ “ State v. Garner, 331 N.C. 491, 502, 417 S.E.2d 502, 508 (1992)(quoting Nix v. Williams, 467 U.S. 431, 444, 81 L.Ed.2d 377, 387–88 (1984)). The trial court in the instant case concluded that “the inevitable discovery rule does not save evidence in this case from the harsh result of the exclusionary rule when unlawful evidence was used to obtain the search warrant.” However, our Supreme Court has stated that “[i]f the affidavit supporting a warrant application includes information obtained illegally, a reviewing court should excise the tainted evidence and determine whether the remaining, untainted evidence would provide a neutral magistrate with probable cause to issue a warrant.” State v. McKinney, 361 N.C. 53, 61, 637 S.E.2d 868, 874 (2006) (citations and internal quotations omitted). As the majority correctly concluded, officers here had probable cause to enter Defendant's home before they performed the warrantless search based on a prior tip and the smell of marijuana emitting from Defendant's home. Therefore, if we excised the tainted information from the affidavit for the search warrant, to include evidence discovered during the protective sweep, probable cause would still exist to support the warrant. Accordingly, the trial court's order should be reversed on these grounds.