117 N.C. App. 109 | N.C. Ct. App. | 1994
The State, pursuant to N.C. Gen. Stat. § 15A-979(c), appeals from the trial court’s pre-trial order granting defendant’s motion to suppress evidence.
The evidence shows that on 22 August 1992, police officer D. N. Pleasants (Pleasants) received two police radio communications. The first radio communication was that a witness at the Southern Lights Restaurant in Greensboro had observed a black man in his 20’s, stocky build and wearing a baseball cap, exit a 1980’s gray Monte Carlo automobile and hide behind a dumpster near the restaurant. The witness indicated he thought the man lived in one of the apartments located at 109 North Cedar Street. While investigating the suspicious person call at the Southern Lights Restaurant, Pleasants received a second radio communication that there had been a robbery at the Equinox Restaurant in Greensboro. The description of the suspect at the Equinox Restaurant matched the description of the suspicious person at the Southern Lights Restaurant. In response to these broadcasts, Pleasants went to 109 North Cedar Street.
When Pleasants arrived at 109 North Cedar Street, he noticed a gray Monte Carlo parked in front of a building containing four apartments, two at ground level and two upstairs. Before exiting his police vehicle he saw, through an open window in the side of one of the downstairs apartments, a black male matching the earlier descriptions. After exiting the vehicle, he saw this same person, through the same open window, walking around in the apartment and “heard a lot of noise which appeared to [him] to be coins hitting metal.” Pleasants testified that the noise was “definitely change being counted, or sifted through.” Because his “suspicion” was aroused, Pleasants moved his patrol car to a more secluded area and radioed for another officer to bring the witness from the Equinox Restaurant to the apartment building.
Pleasants then went into the back yard of the apartment building and went onto the back porch of the apartment in which he had earlier observed the black male. To obtain entrance onto this back porch
Once on the porch, Pleasants leaned over the couch, getting “pretty close” to the window, and looked into the apartment through a three to four inch opening in the window curtains. Pleasants saw two black males sitting on the floor in the hallway counting money. Pleasants radioed the officer, who was waiting out front in a police vehicle with the witness from the Equinox Restaurant, and informed the officer what he had seen through the window. The witness heard this communication and was therefore made aware of what Pleasants had observed in the apartment. Pleasants also instructed the other several officers present at the apartment to secure the premises. Shortly thereafter, the defendant came out onto the front porch, was stopped by the officers, pursuant to Pleasants radio request, arrested for “suspicion of armed robbery,” and placed in the patrol car. After the police knocked on the door of the apartment, the other person came outside. The witness identified the second person to come out of the apartment as the robber. Both men consented to a search of the apartment and the defendant’s brother, whose name was on the lease, signed a written consent to search the apartment. Upon searching the premises, the police seized several items of evidence, including a handgun and some money.
The issues are (I) whether Pleasants’ action in entering the back porch and looking through the window was an unlawful search under the Fourth Amendment of the United States Constitution or Article I, Section 20 of the North Carolina Constitution; and (II) if so, whether the items seized in a subsequent search of the apartment were seized as the consequence of an independent source, untainted by Pleasants’ search.
I
Defendant argues that Pleasants, in looking into the back window of his apartment, conducted an unlawful search of the apartment. We agree.
II
Because we have determined that the search was violative of the defendant’s right against unreasonable searches and seizures, the evidence seized must be excluded from evidence, Murray v. United States, 487 U.S. 533, 536-37, 101 L. Ed. 2d 472, 480 (1988); Carter, 322 N.C. at 716, 370 S.E.2d at 557, unless it would nonetheless have been . obtained “independently from lawful activities untainted by the initial illegality.” State v. Wallace, 111 N.C. App. 581, 589, 433 S.E.2d 238, 243, cert. denied, 335 N.C. 242, 439 S.E.2d 161 (1993); see also State v. Garner, 331 N.C. 491, 502, 417 S.E.2d 502, 508 (1992) (discussing the inevitable discovery exception to the exclusionary rule).
The State argues that the search of the apartment occurred as a result of a consent to search given after the witness identified one of the persons in the apartment as the robber and is therefore independent of any illegality on the part of officer Pleasants. We disagree.
Affirmed.