State v. Crews

66 N.C. App. 671 | N.C. Ct. App. | 1984

Lead Opinion

JOHNSON, Judge.

The sole issue presented for review is whether the trial court erred in denying defendant’s motion to suppress the evidence seized from his home. The court apparently relied on the “routine” investigative nature of the deputy’s conduct in concluding that the evidence was admissible. However, this conclusion was erroneous.

The State argues that Harris v. United States, 390 U.S. 234, 19 L.Ed. 2d 1067, 88 S.Ct. 992 (1968), sanctions routine police procedures such as the warrantless search for the bullet here. We disagree. In Harris a police regulation required impoundment searches of vehicles to secure valuables and protect the vehicle itself. Therefore evidence in plain view when an officer entered the car pursuant to the regulation could properly be seized. The Court, in a per curiam opinion, carefully limited Harris to the “narrow circumstances” before it. Nothing in the record suggests any similar regulatory requirement here. We note also that Harris applies to automobiles, for which there has traditionally been a lessened expectation of privacy. See United States v. Ross, 455 U.S. 798, 72 L.Ed. 2d 572, 102 S.Ct. 2157 (1982). We hesitate to extend its application to private homes. Furthermore, the mere fact that certain police procedures are “routine” does not remove them from constitutional scrutiny. See e.g. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966) (discussing typical interrogation techniques). Therefore, Harris does not provide constitutional justification for this search.

More recently, in Mincey v. Arizona, 437 U.S. 385, 57 L.Ed. 2d 290, 98 S.Ct. 2408 (1978), the Court held that officers may properly enter and search without warrants when they reasonably believe a person within is in need of immediate aid, or to promptly search for other victims of a homicide or a killer still on the premises. However, once these or similar exigent circumstances cease to exist, the conduct of any further warrantless search is not justified. In Mincey, as here, there was no indication that evidence would be lost, destroyed or removed during the time required to obtain a search warrant. (In fact, the officer testified that he was “in control” of the premises.) Furthermore, as in Mincey, here there was also nothing to suggest any inconvenience in obtaining a warrant. Therefore, unless the circumstances satisfied one of the exceptions to the warrant requirement, Deputy Boger had no constitutional authority to continue his search. See also United States v. Presler, 610 F. 2d 1206 (4th Cir. 1979).

The State contends that the officer’s conduct was not a search at all, but part of a routine investigation. However, Min-cey, supra, makes it clear that police may not conduct such routine investigations within private homes without a warrant except in very limited circumstances not applicable here.

Of course, if the officer had discovered the marijuana in plain view in one of the rooms he entered to render aid or to talk to Mrs. Crews, he could have legitimately seized it. Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564, 91 S.Ct. 2022 (1971); State v. Rigsbee, 285 N.C. 708, 208 S.E. 2d 656 (1974). Here, however, he continued to search after defendant and Mrs. Crews had left. The original proper warrantless entry did not justify such an extended search. See Wallace v. King, 626 F. 2d 1157 (4th Cir. 1980), cert. denied, 451 U.S. 969, 68 L.Ed. 2d 348, 101 S.Ct. 2045 (1981) (lack of consent to search beyond entry hall made search improper); State v. Nelson, 298 N.C. 573, 260 S.E. 2d 629 (1979), cert. denied sub nom., Jolly v. North Carolina, 446 U.S. 929, 64 L.Ed. 2d 282, 100 S.Ct. 1867 (1980). It is axiomatic that defendant had a legitimate expectation of privacy in a closed closet in his own home. Therefore, the State must satisfy one of the exceptions to the warrant requirement to justify the war-rantless entry into it.

The State argues that Mrs. Crews had authority to consent to the search and that she did in fact give her implicit consent. While the evidence at the hearing might have supported such a theory, the court made no findings of fact to that effect. Mrs. Crews did not testify. State v. Cooke, 306 N.C. 132, 291 S.E. 2d 618 (1982) is dispositive of the State’s contention on the issue of consent. There, the Supreme Court denied the State’s appeal from an order suppressing evidence on Fourth Amendment grounds, stating:

[T]he scope of appellate review of an order such as this 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.

Id. at 134, 291 S.E. 2d at 619. As discussed above, although the Court’s findings are supported by the evidence, they support neither its conclusions of law nor the State’s theory of consent. The State has the burden, “. . . at the suppression hearing, of demonstrating with particularity a constitutionally sufficient justification of the officers’ search. . . .” Id. at 136, 291 S.E. 2d at 620 (emphasis original). An appellate court does not sit as the finder of fact, and it would be unfair to the defendant to consider the State’s contention on the record presented in this case. See id. at 137-38, 291 S.E. 2d at 621. Therefore, we hold that the State failed to meet its burden and that the court erred in denying defendant’s motion. Unlike the situation presented in Cooke, however, we see no prejudice to the defendant in remanding this case to the trial court for further hearing, findings of fact, and conclusions of law.

Therefore, the order denying defendant’s motion is vacated, the judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.

Vacated and remanded.

Judge Wells concurs. Chief Judge VAUGHN dissents.

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Dissenting Opinion

Chief Judge VAUGHN

dissenting.

I believe the motion to suppress was properly denied and, therefore, vote to affirm the judgment.