STATE of North Carolina
v.
Youles JOHNSON, Jr.
No. 536A83.
Supreme Court of North Carolina.
April 3, 1984.*582 Rufus L. Edmisten, Atty. Gen. by Henry T. Rosser, Asst. Atty. Gen., Raleigh, for the State appellant.
Brown, Fox & Deaver, P.A. by Bobby G. Deaver, Fayetteville, for defendant-appellee.
BRANCH, Chief Justice.
The sole issue presented for review is whether the seizure of heroin under the circumstances of this case violated defendant's fourth amendment rights. Defendant contends that the officer's warrantless entry into his home, without consent and without any accompanying exigent circumstances, was barred by the mandates of the fourth amendment as set forth in Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981) and Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). The State, on the other hand, maintains that the officer entered defendant's home while engaged in "hot pursuit" of a fugitive and thus the entry was justified under the exigent circumstances exception to the fourth amendment warrant requirement. Consequently, the State argues that the seizure of the heroin constituted the seizure of evidence in "plain view" of an officer who was lawfully inside the residence. See State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979).
The fourth amendment prohibits the entry into a home in order to make a felony arrest, absent a valid search warrant, consent or exigent circumstances. Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981); Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). In the instant case, the officers were armed with warrants for the arrest of two fugitives. The officers had been informed and, at some point, presumably had probable cause to believe these fugitives to be at defendant's home. The United States Supreme Court in Steagald clearly held that, absent exigent circumstances or consent, a search warrant was required before officers could enter the residence of a third person to arrest a suspect. Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38.
There is no question in this case that there was neither a search warrant nor *583 consent to enter defendant's home. Thus, the sole question is whether the entry and its concomitant seizure were accompanied by such exigency as to have rendered it impracticable for the officers to have obtained a search warrant.
In State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979), we noted that a warrantless search may be justified upon a showing that there is probable cause to search and upon the State's satisfying its "burden of demonstrating that the exigencies of the situation made search without a warrant imperative." Id. at 141, 257 S.E.2d at 421.
Facts and circumstances sufficient to constitute "exigent circumstances" in the context of fourth amendment searches vary widely and have been the subject of a significant number of cases. See State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979). See e.g., United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976); United States v. Minick, 455 A.2d 874 (D.C.App.1983) (en banc); Dorman v. United States, 435 F.2d 385 (D.C. App.1970) (en banc).
Despite the numerous fact situations giving rise to the characterization of "exigency," it appears to be the essence of "exigent circumstances" that there was "the lack of time to obtain a warrant without thwarting the arrest or making it more dangerous. Where time was adequate, failure to obtain a warrant should not be excused." Latzer, Enforcement Workshop: Police Entries to ArrestPayton v. New York, 17 Crim.L.Bull. 156, 165 (1981) (emphasis added). Thus, while in this case, it is evident that, at the time of entry into defendant's home, Officer Bowser was engaged in the "hot pursuit" of a person he suspected to be a fugitive, the issue remains as to whether there was an unjustified delay or failure to obtain a search warrant after the existence of probable cause as to the whereabouts of the suspects.
The Court of Appeals in this case construed the facts surrounding the warrantless entry to be as follows:
From the record here, it is apparent that over three and a half hours elapsed between the time that the police were supplied with arrest warrants and the time the arrest was made. Although copies of the warrants are not in the record, it appears that the police were supplied at the same time with the information that the person named in the arrest warrants could be found at defendant's home. Officer Bowser testified that he had received information from the bondsman, Sgt. Baker and several other sources that Williams and Wortham were located at defendant's residence; that he knew defendant and knew his address and that his specific purpose in going to defendant's residence was to arrest Williams and Wortham. From the time the warrants were received until they were executed, no attempt was made to procure a warrant authorizing entry into defendant's house. Thus, it would appear that the arrest raid was in fact a planned raid. There was ample time to secure a search warrant and ample reason to anticipate the need for one. That the subject of the arrest warrants were believed to be at defendant's house is sufficient by itself to put the police on notice that they might need to gain entry to the house in order to effect the arrest. With these facts in mind, we need not consider whether Officer Bowser was in "hot pursuit" and whether that alone was sufficient to justify his entry into defendant's home. The need for a search warrant should have been anticipated in this case.
64 N.C.App. at 263, 307 S.E.2d at 192.
While we do not disagree with the Court of Appeals' recapitulation of certain facts as found by the trial judge, we do take issue with some of the conclusions that the court drew. In our opinion, the voir dire evidence and the trial judge's findings are insufficient to permit adequate review by the appellate courts.
For example, it is clear from the record that "over three and a half hours elapsed between the time that the police *584 were supplied with arrest warrants and the time the arrest was made." 64 N.C.App. at 263, 307 S.E.2d at 192. It is also undisputed that the bondsman informed Officer Bowser that "he had a confidential source which had furnished him with information to the fact that they were at that residence." (Transcript of voir dire hearing 11).[1] In addition, Officer Bowser testified that he and Sergeant Baker "attempted to verify the information that [they] had received from Mr. Collins through telephone calls, [and] through Sergeant Baker going out to the area where the residence is." (Transcript of voir dire hearing 14). However, we do not believe that the evidence or findings of fact are sufficient to support the Court of Appeals' conclusion that "it would appear that the arrest raid was in fact a planned raid." 64 N.C.App. at 263, 307 S.E.2d at 192. We likewise do not believe the evidence or findings are sufficient to support the conclusion that "[t]here was ample time to secure a search warrant and ample reason to anticipate the need for one." Finally, we believe that the evidence and findings are insufficient to support the conclusion by the Court of Appeals that, "[t]he need for a search warrant should have been anticipated in this case." Id.
From the testimony of Officer Bowser at the voir dire hearing, and likewise from the findings of the trial judge, there is little upon which the conclusions drawn by the Court of Appeals can rest. There is no finding as to when the officers had probable cause to believe that the suspects were indeed at the home of the defendant. The Court of Appeals assumed probable cause existed when the bondsman informed the officers that he had reliable information to that effect. However, the testimony of Officer Bowser that he and Sergeant Baker proceeded to verify that information could just as reasonably lead to the conclusion that the existence of probable cause was dependent upon that verification. Depending upon the time required to obtain verification, the officers likely did not have a full "three and a half hours" between the time they had probable cause to believe the suspects to be at defendant's home, and the time at which they arrived there. In addition to there being no evidence with respect to the time it took to verify the suspects' whereabouts, there is no evidence as to the circumstances surrounding the verification. For example, no testimony was elicited showing the manner in which Sergeant Baker verified the information; whether, at the time of verification, the suspects were inside or outside defendant's house; whether Baker radioed the information to the police station; or the whereabouts of the other officers when they received word of verification. Absent, too, are any findings regarding the officers' intent in going to the residence other than the intent to arrest the suspects. It is conceivable that, had the officers intended to stake out the residence and at the same time seek a search warrant, their actions might be deemed "reasonable" within the meaning of the fourth amendment.
The determinations necessary for our review of the legality of the instant search simply cannot be made upon the findings and conclusions contained in Judge Winberry's order. Were we to attempt to uphold or condemn the search, we would be engaging in mere speculation.
The lack of sufficient findings in this case, as well as the lack of evidence in the transcript upon which to base any findings, compels us to remand the case for new voir dire proceedings consistent with this opinion. See State v. Booker, 306 N.C. 302, 293 S.E.2d 78 (1982). Upon its determination, the superior court shall enter its findings, conclusions, and order which shall be certified to this Court. The parties may *585 file exceptions and assignments of error to the order, if applicable, and may file additional briefs with this Court, if deemed appropriate by them. See State v. Prevette, 39 N.C.App. 470, 250 S.E.2d 682, appeal dismissed, 297 N.C. 179, 254 S.E.2d 38 (1979).
REMANDED.
NOTES
[1] Despite the fact that the sole issue in this case involved a review of the trial judge's order denying defendant's motion to suppress, neither party saw fit to include in the record a transcript of the voir dire hearing. Consequently, this Court was constrained to contact the District Attorney's Office in Cumberland County in order to complete the record in this regard. It is inconceivable that litigants expect the appellate courts to conduct effective review without the benefit of a complete record.