No. 501PA12
STATE OF NORTH CAROLINA
v.
JERRY WADE GRICE, JR.
Filed 23 January 2015
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous
decision of the Court of Appeals, ___ N.C. App. ___, 735 S.E.2d 354 (2012), vacating
a judgment entered on 14 December 2011 by Judge James G. Bell in Superior
Court, Johnston County, and remanding for a new trial. Heard in the Supreme
Court on 19 November 2013.
Roy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney
General, for the State-appellant.
Staples S. Hughes, Appellate Defender, and Jon H. Hunt and Benjamin
Dowling-Sendor, Assistant Appellate Defenders, for defendant-appellee.
MARTIN, Chief Justice.
Defendant grew marijuana in view of his driveway, leaving three potted
plants exposed to any visitor who might approach his residence. Two detectives did
just that, and when they saw the plants, they seized them before returning the
following day with a warrant to search defendant’s home. At trial, the court denied
defendant’s motion to suppress the evidence of the seized plants. On appeal, the
STATE V. GRICE
Opinion of the Court
Court of Appeals reversed the trial court. We now reverse the decision of the Court
of Appeals.
On 5 May 2011, the Johnston County Sheriff’s Office received an anonymous
tip that Jerry Grice, Jr. was growing marijuana at a particular residence on Old
School Road. In response, the Sheriff’s Office dispatched two detectives, Guseman
and Allen, to conduct a knock and talk investigation at the address. Both detectives
had extensive training in narcotic investigations, including training in identifying
marijuana. The property was located in a rural area, and the house was situated
along with several outbuildings approximately one-tenth of a mile down a dirt path.
After driving up the driveway, the detectives parked behind a white vehicle on the
right side of the house.
The front door of the house was inaccessible, covered with plastic, and
obscured by furniture. However, the officers noticed that the driveway led to a side
door, which appeared to be used as the main entrance. Once the detectives had
parked, two dogs ran up to their car and started barking. Detective Allen remained
in the driveway to calm the dogs while Detective Guseman knocked on the side
door. No one answered his knocks. From the driveway, Detective Allen noticed
several buckets at a distance of approximately fifteen yards. Due to his training,
Detective Allen recognized the plants growing in three of the buckets as marijuana.
Detective Allen called Detective Guseman over to the driveway to observe the
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Opinion of the Court
plants. Also based on his training, Detective Guseman identified the plants as
marijuana without approaching the buckets.
After identifying the plants from the driveway, the officers walked to the
plants and telephoned Captain Fish to determine how best to proceed. The Captain
instructed Detectives Guseman and Allen to seize the plants and return to the
Sheriff’s Office to obtain a search warrant. A search warrant for the residence was
executed the next morning. Detectives from the Sheriff’s Office returned to the
residence and arrested defendant, who admitted that the plants seized the previous
day were his.
Defendant was subsequently indicted for manufacturing a controlled
substance. A second charge was brought but later dropped by the State and is not
relevant to our discussion here. Defendant filed a motion to suppress evidence of
the seized marijuana plants, claiming discovery of the plants was the product of an
illegal search and seizure. The motion was denied. At trial, defendant failed to
object to the introduction of the plants on this constitutional basis. The jury
unanimously found defendant guilty, and the court sentenced him to a suspended
term of six to eight months with supervised probation. Defendant appealed.
The Court of Appeals reversed, holding that “the trial court erred in its
conclusion that no Fourth Amendment violation resulted from the seizure [of the
plants].” State v. Grice, ___ N.C. App. ___, ___, 735 S.E.2d 354, 358 (2012). The
court reasoned that admitting the State’s evidence in this case would make it
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“difficult to articulate a limiting principle such that ‘knock and talk’ investigations
would not become a pretense to seize any property within the home’s curtilage.” Id.
at ___, 735 S.E.2d at 358. The court further reasoned that “the trial court’s finding
‘[t]hat this seizure was to prevent [the plants’] destruction’ is not supported by
competent evidence in the record.” Id. at ___, 735 S.E.2d at 359. The court thus
held that “ ‘exigent circumstances’ cannot be a justification for this warrantless
seizure.” Id. at ___, 735 S.E.2d at 359. The court concluded its opinion by reasoning
that if the evidence of the plants had properly been suppressed, “the jury probably
would have reached a different result” and thus, plain error occurred. Id. at ___,
735 S.E.2d at 359. We reverse.
The Fourth Amendment protects “[t]he 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 touchstone of the Fourth Amendment is
reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 1803 (1991)
(citation omitted). The protections against unreasonable searches and
unreasonable seizures are distinct from one another—“[a] search compromises the
individual interest in privacy; a seizure deprives the individual of dominion over his
or her person or property.” Horton v. California, 496 U.S. 128, 133, 110 S. Ct. 2301,
2306 (1990) (citation omitted).
When considering whether a warrantless search was unreasonable, the
inquiry focuses on whether an individual has “ ‘manifested a subjective expectation
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of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize
that expectation as reasonable.’ ” Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct.
2038, 2042-43 (2001) (alteration in original) (quoting California v. Ciraolo, 476 U.S.
207, 211, 106 S. Ct. 1809, 1811 (1986)). Privacy expectations are highest in one’s
home. See Florida v. Jardines, ___ U.S. ___, ___, 133 S. Ct. 1409, 1414 (2013).
When law enforcement observes contraband in plain view, no reasonable
expectation of privacy exists, and thus, the Fourth Amendment’s prohibition
against unreasonable warrantless searches is not violated. Ciraolo, 476 U.S. at
213-15, 106 S. Ct. at 1812-14. Instead, the Fourth Amendment analysis must
consider whether a subsequent warrantless seizure of the items left in plain view
was reasonable. That is the case with which we are presented. Here, defendant
had no privacy interest in the marijuana plants left in plain view of his driveway,
where any member of the public coming to his door might have seen them. When
there is no privacy interest, there can be no search under the Fourth Amendment.
Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2137 (1993).
We are left then to examine whether the seizure of the plants violated
defendant’s possessory interest in them, thereby running afoul of the Fourth
Amendment. While the general rule is that warrantless seizures are
unconstitutional, a warrantless seizure of an item may be justified as reasonable
under the plain view doctrine, so long as three elements are met: First, “that the
officer did not violate the Fourth Amendment in arriving at the place from which
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the evidence could be plainly viewed”; second, that the evidence’s “incriminating
character . . . [was] ‘immediately apparent’ ”; and third, that the officer had “a
lawful right of access to the object itself.” Horton, 496 U.S. at 136-37, 110 S. Ct. at
2308 (internal citations omitted); accord State v. Virgil, 276 N.C. 217, 227, 172
S.E.2d 28, 34 (1970). The North Carolina General Assembly has additionally
required that the discovery of evidence in plain view be inadvertent. State v.
Mickey, 347 N.C. 508, 516, 495 S.E.2d 669, 674 (citing N.C.G.S. § 15A-253 (1988)),
cert. denied, 525 U.S. 853, 119 S. Ct. 131 (1998). The plain view doctrine represents
the principle that “[t]he warrantless seizure of contraband that presents itself in
this manner is deemed justified by the realization that resort to a neutral
magistrate under such circumstances would often be impracticable and would do
little to promote the objectives of the Fourth Amendment.” Dickerson, 508 U.S. at
375, 113 S. Ct. at 2137 (citations omitted); see also Texas v. Brown, 460 U.S. 730,
739, 103 S. Ct. 1535, 1541 (1983) (plurality) (“[R]equiring police to obtain a warrant
once they have obtained a first-hand perception of contraband, stolen property, or
incriminating evidence generally would be a needless inconvenience.”) (citation and
internal quotation marks omitted).
Regarding the first element, the officers in this case were present in
defendant’s driveway to perform a knock and talk investigation. This matters
because “[i]t is, of course, an essential predicate to any valid warrantless seizure of
incriminating evidence that the officer did not violate the Fourth Amendment in
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arriving at the place from which the evidence could be plainly viewed.” Horton, 496
U.S. at 136, 110 S. Ct. at 2308. Notably, defendant does not contest that this
procedure was lawful, for there is an “implicit license [that] typically permits the
visitor to approach the home by the front path.” Jardines, ___ U.S. at ___, 133 S.
Ct. at 1415. Secondly, testimony from both officers establishes that, based on their
training and experience, they instantly recognized the plants as marijuana.
Defendant does not contest the validity of that testimony. Thirdly, discovery of the
marijuana was inadvertent—defendant does not allege the officers wandered the
property looking for the marijuana before seeing it.
The sole point of contention is whether the officers had a lawful right of
access from the driveway fifteen yards across defendant’s property to the plants’
location. Defendant claims that, while the officers had a lawful right to be present
at the door of defendant’s home, they did not have a lawful right to enter the
curtilage fifteen yards away. When describing this element, the United States
Supreme Court says that the plain view doctrine “ ‘serves to supplement the prior
justification—whether it be a warrant for another object, hot pursuit, search
incident to lawful arrest, or some other legitimate reason for being present
unconnected with a search directed against the accused—and permits the
warrantless seizure.’ ” Horton, 496 U.S. at 135-36, 110 S. Ct. at 2307 (citation
omitted); see Illinois v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 3324 (1983)
(“The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to
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Opinion of the Court
a police officer whose access to the object has some prior Fourth Amendment
justification and who has probable cause to suspect that the item is connected with
criminal activity.”). Similarly, the Court in Horton observed that “[w]here the
initial intrusion that brings the police within plain view of such an article is
supported, not by a warrant, but by one of the recognized exceptions to the warrant
requirement, the seizure is also legitimate.” 496 U.S. at 135, 110 S. Ct. at 2307
(emphasis added).
Here, the knock and talk investigation constituted the initial entry onto
defendant’s property which brought the officers within plain view of the marijuana
plants. The presence of the clearly identifiable contraband justified walking further
into the curtilage. This understanding of the “lawful right of access” element is
consistent with the background precedent that informed the Court’s introduction of
this language in Horton. 496 U.S. at 137 & n.7, 110 S. Ct. at 2308 & n.7 (citing
Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776 (1961) (holding that officers
who had climbed through a window of a home to perform a warrantless search
violated the Fourth Amendment, and the subsequent seizure of distilling materials
from inside the home was unconstitutional); Jones v. United States, 357 U.S. 493,
78 S. Ct. 1253 (1958) (holding that the nighttime seizure of distilling materials from
a home was unconstitutional because law enforcement did not have a search
warrant justifying entry into the home); McDonald v. United States, 335 U.S. 451,
69 S. Ct. 191 (1948) (holding that officers who had been watching the defendant for
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Opinion of the Court
two months committed an unconstitutional search when they climbed through a
window and peered through a transom to see if he was running an illegal gambling
operation); Trupiano v. United States, 334 U.S. 699, 68 S. Ct. 1229 (1948) (holding
that a warrantless planned raid on a distillery was unconstitutional), overruled in
part by United States v. Rabinowitz, 339 U.S. 56, 66, 70 S. Ct. 430, 435 (1950);
Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367 (1948) (holding that officers
who entered a hotel room without a search warrant based on the perceived smell of
opium could not justify the arrest of the occupant); Taylor v. United States, 286 U.S.
1, 52 S. Ct. 466 (1932) (holding that law enforcement officers who used a flashlight
to peer into a garage, then broke into the garage to open cardboard boxes suspected
of containing whisky, effectuated an unconstitutional search, and the subsequent
seizure was also unconstitutional)). Our precedent similarly takes this point of
view. State v. Bone, 354 N.C. 1, 8, 550 S.E.2d 482, 487 (2001) (“In North Carolina, a
seizure is lawful under [the plain view] doctrine when the officer was in a place he
or she had a right to be at the time the evidence was discovered, it is immediately
obvious that the items observed are evidence of a crime, and the discovery is
inadvertent.”), cert. denied, 535 U.S. 940, 122 S. Ct. 1323 (2002); State v. Hoffman,
281 N.C. 727, 736-37, 190 S.E.2d 842, 849 (1972) (“Being lawfully in defendant’s
residence, the officers could examine and, without a warrant, seize ‘suspicious
objects in plain sight’ . . . . If the officers’ presence was lawful, the observation and
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Opinion of the Court
seizure of what was then and there apparent could not in itself be unlawful.”)
(alteration in original) (citations and internal quotation marks omitted).
Defendant places special emphasis on the fact that the plants were on the
“curtilage” of the property. The curtilage is the area “ ‘immediately surrounding
and associated with the home.’ ” Jardines, ___ U.S. at ___, 133 S. Ct. at 1414
(quoting Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742 (1984)). In
a non-Fourth Amendment case, we have said “the curtilage of the home will
ordinarily be construed to include at least the yard around the dwelling house as
well as the area occupied by barns, cribs, and other outbuildings.” State v. Frizzelle,
243 N.C. 49, 51, 89 S.E.2d 725, 726 (1955) (citations omitted). The curtilage does
enjoy some measure of Fourth Amendment protection, Jardines, ___ U.S. at ___,
133 S. Ct. at 1414, because it is “intimately linked to the home, both physically and
psychologically,” Ciraolo, 476 U.S. at 213, 106 S. Ct. at 1812. As such, it serves as
the buffer between the intimate activities of the home and the prying eyes of the
outside world. But, law enforcement is not required to turn a blind eye to
contraband or otherwise incriminating materials left out in the open on the
curtilage. Ciraolo, 476 U.S. at 213, 106 S. Ct. at 1812. Neither is law enforcement
absolutely prohibited from crossing the curtilage and approaching the home, based
on our society’s recognition that “the knocker on the front door is treated as an
invitation or license to attempt an entry, justifying ingress to the home by solicitors,
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hawkers and peddlers . . . .” Jardines, ___ U.S. at ___, 133 S. Ct. at 1416 (citation
and internal quotation marks omitted).
As a buffer, the curtilage protects privacy interests and prevents
unreasonable searches on the curtilage. See generally Jardines, ___ U.S. ___, 133 S.
Ct. 1409; United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134 (1987). Whether the
curtilage enjoys coextensive protection against unreasonable seizures is less clear.
We do know, however, that constitutionally protected property interests exist on a
spectrum. On one end of the spectrum, we have the home, which is protected by the
highest constitutional threshold and thus may only be breached in specific, narrow
circumstances. On the other end, we have open fields, which even though they may
be private property may be reasonably traversed by law enforcement under the
Fourth Amendment. Oliver, 466 U.S. at 176-77, 104 S. Ct. at 1740. Curtilage falls
somewhere in between. The protection afforded the curtilage, at least in the context
of violations of privacy, is determined by looking at several factors: “the proximity of
the area claimed to be curtilage to the home, whether the area is included within an
enclosure surrounding the home, the nature of the uses to which the area is put,
and the steps taken by the resident to protect the area from observation by people
passing by.” Dunn, 480 U.S. at 301, 107 S. Ct. at 1139 (citations omitted). These
considerations are important not because they will “yield[ ] a ‘correct’ answer to all
extent-of-curtilage questions. . . . [but because] they bear upon the centrally
relevant consideration—whether the area in question is so intimately tied to the
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home itself that it should be placed under the home’s ‘umbrella’ of Fourth
Amendment protection.” Id. at 301, 107 S. Ct. at 1139-40.
Borrowing these considerations for our analysis today, we conclude that the
unfenced portion of the property fifteen yards from the home and bordering a wood
line is closer in kind to an open field than it is to the paradigmatic curtilage which
protects “the privacies of life” inside the home. Oliver, 466 U.S. at 180, 104 S. Ct. at
1742 (citation and internal quotation marks omitted). However, even if the
property at issue can be considered the curtilage of the home for Fourth
Amendment purposes, we disagree with defendant’s claim that a justified presence
in one portion of the curtilage (the driveway and front porch) does not extend to
justify recovery of contraband in plain view located in another portion of the
curtilage (the side yard). By analogy, it is difficult to imagine what formulation of
the Fourth Amendment would prohibit the officers from seizing the contraband if
the plants had been growing on the porch—the paradigmatic curtilage—rather than
at a distance, particularly when the officers’ initial presence on the curtilage was
justified. The plants in question were situated on the periphery of the curtilage,
and the protections cannot be greater than if the plants were growing on the porch
itself. The officers in this case were, by the custom and tradition of our society,
implicitly invited into the curtilage to approach the home. Traveling within the
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curtilage to seize contraband in plain view within the curtilage did not violate the
Fourth Amendment.1
Our decision in State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972), is
illustrative of this principle. In that case, a deputy arrived at the defendant’s home
to arrest the defendant. The officer saw the defendant standing in the doorway of
the utility room, so the officer approached that doorway. From the doorway, the
officer saw marijuana seeds on the top of a deep freezer inside the room. The
defendant met the officer at the doorway and was arrested. The officer proceeded to
enter the room and seize the marijuana seeds. This Court held the officer “was
legally on the premises, and no search was required to discover the contraband
material.” Id. at 12, 187 S.E.2d at 713. We allowed the plain view observance of
contraband from the doorway of a home to justify entry into the home. The
intrusion in this case is far less invasive than entry into the home.
Whatever special protection the curtilage enjoys against warrantless
seizures, that protection does not support the creation of a rule that law
enforcement is automatically prohibited from crossing from one lawfully arrived at
1We decline the dissent’s invitation to adopt the “pre-intrusion” framework invoked
by the Florida Supreme Court over thirty years ago. See post at 3 (citing Ensor v. State,
403 So. 2d 349 (Fla. 1981), superseded on other grounds by statute, Fla. Stat. § 790.25(5)
(Supp. 1982)). To the extent the dissent finds that case persuasive, we think these facts are
the quintessential example of a “ ‘prior valid intrusion,’ ” when “an officer is legally inside,
by warrant or warrant exception, a constitutionally protected area and inadvertently
observes contraband also in the protected area.” Ensor, 403 So. 2d at 352. Here, the
detectives were legally inside the curtilage, a constitutionally protected area, performing a
knock and talk investigation when they inadvertently observed contraband also in the
protected area.
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portion of the curtilage to another portion of the curtilage to retrieve inadvertently
discovered contraband in plain view. This is particularly true when, as here, the
contraband nature of the seized items was immediately apparent, because “any
interest in possessing contraband cannot be deemed legitimate.” Illinois v.
Caballes, 543 U.S. 405, 408, 125 S. Ct. 834, 837 (2005) (citation and internal
quotation marks omitted).
Because the fact that the plants were on the curtilage alone is insufficient to
hold that the officers violated the Fourth Amendment in seizing the plants, we
perform the Fourth Amendment’s reasonableness inquiry to conclude our
evaluation of the constitutionality of the officers’ actions in this case. United States
v. Jacobsen, 466 U.S. 109, 124, 104 S. Ct. 1652, 1662 (1984). In this inquiry, “ ‘[w]e
must balance the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the importance of the governmental interests alleged
to justify the intrusion.’ ” Id. at 125, 104 S. Ct. at 1662 (alteration in original)
(citation omitted). “This rule merely reflects an application of the Fourth
Amendment’s central requirement of reasonableness to the law governing seizures
of property.” Brown, 460 U.S. at 739, 103 S. Ct. at 1542 (emphasis added). The
State has a legitimate interest in seizing contraband, and the nature of the
intrusion in this case was minimal. The officers were at the home in daylight; the
contraband nature of the plants was readily apparent; the officers took only the
plants, leaving behind the buckets and caretaking implements surrounding them;
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and the officers left immediately after seizing the plants. The officers did not cross
or open any fence or barrier, nor did they use the sighting of the plants as an excuse
to conduct a general search of the rest of the property. In other words, they did not
travel outside the category of property covered by the initial invitation to enter the
curtilage. Under these circumstances, the warrantless seizure of clearly identifiable
contraband left in plain view of defendant’s driveway was not unreasonable and the
motion to suppress was properly denied.
Moreover, contrary to the concern raised by the Court of Appeals, this
holding does not mean that knock and talk investigations may be used as a pretense
to seize contraband in a home’s curtilage. The limiting principle is what it has
always been: law enforcement must have “ ‘some other legitimate reason for being
present unconnected with a search directed against the accused.’ ” Horton, 496 U.S.
at 136, 110 S. Ct. at 2307 (citation omitted). The implicit license enjoyed by law
enforcement and citizens alike to approach the front doors of homes may be limited
or rescinded by clear demonstrations by the homeowners and is already limited by
our social customs. See Jardines, ___ U.S. at ___, 133 S. Ct. at 1415-16. If law
enforcement officers attempt to use an unreasonable warrantless search to justify a
subsequent seizure, their argument will fail. Horton, 496 U.S. at 136, 110 S. Ct. at
2307-08. But as the officers here did not perform an unconstitutional search and
had a legitimate reason to be in the driveway, from which they saw the marijuana
plants left in plain view, they lawfully seized those plants.
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Furthermore, the seizure was also justified by exigent circumstances.
Defendant points to the fact that the officers’ testimony at trial did not cite any
exigencies that steered their decision to seize the marijuana before obtaining a
warrant. They seized the plants because their captain told them to. But the
Supreme Court “has long taken the view that ‘evenhanded law enforcement is best
achieved by the application of objective standards of conduct, rather than standards
that depend upon the subjective state of mind of the officer.’ ” Kentucky v. King, ___
U.S. ___, ___, 131 S. Ct. 1849, 1859 (2011) (citation omitted); accord State v.
Barnard, 362 N.C. 244, 248, 658 S.E.2d 643, 645-46 (Constitutionality “depends on
the objective facts, not the officer’s subjective motivation.”) (citations omitted), cert.
denied, 555 U.S. 914, 129 S.Ct. 264 (2008). Accordingly, we look at the whole record
to determine if there were factors reasonably supporting the immediate seizure of
the plants.
Factors long used to justify warrantless seizures have included the belief that
contraband will be removed or destroyed, the possible danger to police guarding the
site, and the ready destructibility of the contraband. United States v. Turner, 650
F.2d 526, 528 (4th Cir. 1981) (citing United States v. Rubin, 474 F.2d 262, 268-69
(3d Cir.) (cataloguing various exigent circumstances recognized by other circuit
courts), cert. denied, 414 U.S. 833, 94 S. Ct. 173 (1973)); see generally Coolidge v.
New Hampshire, 403 U.S. 443, 91 S. Ct. 2022 (1971), abrogated in part by Horton,
496 U.S. 128, 110 S. Ct. 2301. The Supreme Court has stressed the importance of
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“balanc[ing] the privacy-related and law enforcement-related concerns to determine
if the intrusion was reasonable.” Illinois v. McArthur, 531 U.S. 326, 331, 121 S. Ct.
946, 950 (2001) (citations omitted). This analysis led the Supreme Court to approve
a warrantless seizure that was tailored to the immediate governmental need
because the search was “limited in time and scope and avoid[ed] significant
intrusion into the home itself.” Id. (citations omitted). Similarly, there was no
physical intrusion into the home in this case. The officers removed the three plants
and the three plants alone, leaving behind the buckets in which they had been
planted and the various caretaking implements surrounding them. The plants were
small and easily transportable, and there was a passenger vehicle in the driveway.
The fact that no one came to the door does not establish that no one was at home,
but simply that no one was willing to answer the door. A reasonable officer might
believe that the presence of the vehicle and the two dogs roaming the unfenced yard
indicated that someone was at home and simply remaining inside. Leaving an
officer behind to secure the yard while the other officer went to get a warrant, as
suggested by defendant, could have exposed that remaining officer to unknown
danger. Moreover, “[f]aulting the police for failing to apply for a search warrant at
the earliest possible time after obtaining probable cause imposes a duty that is
nowhere to be found in the Constitution.” King, ___ U.S. at ___, 131 S. Ct. at 1861.
Reviewing the record, it is objectively reasonable to conclude that someone may
have been home, that the individual would have been aware of the officers’
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presence, and that the individual could easily have moved or destroyed the plants if
they were left on the property. Under these facts, we find no reason to disturb the
trial court’s finding that “this seizure was to prevent [the plants’] destruction,” and
conclude that exigent circumstances justified the seizure.
Finally, as acknowledged in his brief, defendant failed to object to the
introduction of the challenged evidence at trial. Therefore, we review the trial
court’s evidentiary determination for plain error. See N.C. R. App. P. 10(a)(4); see
also State v. Lawrence, 365 N.C. 506, 723 S.E.2d 326 (2012). Under the plain error
standard, defendant cannot show that admission of the challenged evidence
amounted to plain error.
Plain error requires that “a defendant must demonstrate that a fundamental
error occurred at trial. To show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire record, the error ‘had a
probable impact on the jury’s finding that the defendant was guilty.’ ” Lawrence,
365 N.C. at 518, 723 S.E.2d at 334 (internal citations omitted). We also stated,
“plain error is to be ‘applied cautiously and only in the exceptional case.’ ” Id. at
518, 723 S.E.2d at 334 (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,
378 (1983)). In order to ensure plain error is reserved for the exceptional case, we
stressed that plain error requires a defendant to show that the prejudicial error was
one that “seriously affect[ed] the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 519, 723 S.E.2d at 335. When plain error analysis fails to
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adequately account for this element, plain error may become indistinguishable from
the less stringent harmless error standard.
Even if it was error to deny the motion to suppress, it was not an error that
seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Here, the trial court allowed evidence that defendant left three marijuana plants
outside in his yard for any member of the public to see. Defendant acknowledges
that the plants were his. The inclusion of this evidence is not the “exceptional case”
that justifies finding plain error. Id. at 518, 723 S.E.2d at 334. Accordingly, we
reverse the decision of the Court of Appeals.
Defendant chose to grow marijuana in his yard, plainly visible to any visitors
to his home. The law enforcement officers who visited defendant’s home carefully
limited the scope of their intrusion and their seizure was justified under the plain
view doctrine and supported by exigent circumstances. Because defendant failed to
specifically object at trial to the introduction of the plants, the plain error doctrine
provides yet another reason for our decision. Therefore, we reverse the decision of
the Court of Appeals.
REVERSED.
Justice ERVIN did not participate in the consideration or decision of this
case.
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Justice HUDSON dissenting.
The State argues, and the majority agrees, that because the marijuana plants
in defendant’s backyard were in “plain view,” their seizure was justified under the
“plain view” doctrine. Because I conclude that this determination is based upon a
mistaken assumption about how the doctrine applies when the view and seizure
occur from outside a constitutionally protected area, a “pre-intrusion” scenario, I
respectfully dissent.
As the Maryland intermediate appellate court has observed, “[n]eedless
confusion” has arisen out of the failure by courts to distinguish “visually similar but
legally distinct situations” involving the observation of contraband:
The “plain view doctrine,” as described in Coolidge v. New
Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564
[(1971)], refers exclusively to the legal justification—the
reasonableness—for the seizure of evidence which has not
been particularly described in a warrant and which is
inadvertently spotted in the course of a constitutional
search already in progress or in the course of an otherwise
justifiable intrusion into a constitutionally protected area.
It has no applicability when the vantage point from which
the “plain view” is made is not within a constitutionally
protected area.
Scales v. State, 13 Md. App. 474, 478 n.1, 284 A.2d 45, 47 n.1 (Md. Ct. Spec. App.
1971). After Coolidge it was not entirely clear whether the discovery of contraband
had to be “inadvertent” to justify its warrantless seizure under the “plain view”
doctrine. In Horton v. California, 496 U.S. 128, 130, 110 S. Ct. 2301, 2304 (1990),
the Supreme Court of the United States clarified that “even though inadvertence is
STATE V. GRICE
HUDSON, J., dissenting
a characteristic of most legitimate ‘plain-view’ seizures, it is not a necessary
condition.” However, as noted by the majority, our State statutes require that the
discovery be inadvertent. N.C.G.S. § 15A-253 (2013) (stating that when a search is
conducted via a warrant, an officer may also take possession of contraband that is
“inadvertently discovered” although not specified in the warrant).
In 1971 the Supreme Court further explained the contours of what has come
to be known as the “plain view” doctrine:
[P]lain view alone is never enough to justify the
warrantless seizure of evidence. This is simply a corollary
of the familiar principle discussed above, that no amount
of probable cause can justify a warrantless search or
seizure absent ‘exigent circumstances.’ Incontrovertible
testimony of the senses that an incriminating object is on
premises belonging to a criminal suspect may establish the
fullest possible measure of probable cause. But even where
the object is contraband, this Court has repeatedly stated
and enforced the basic rule that the police may not enter
and make a warrantless seizure.
Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 2039 (1971) (second
emphasis added) (citations omitted), abrogated in part by Horton, 496 U.S. 128,
1105 S. Ct. 2301. In other words,
“plain view” provides grounds for seizure of an item when
an officer’s access to an object has some prior justification
under the Fourth Amendment. “Plain view” is perhaps
better understood, therefore, not as an independent
“exception” to the Warrant Clause, but simply as an
extension of whatever the prior justification for an
officer’s “access to an object” may be.
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HUDSON, J., dissenting
Texas v. Brown, 460 U.S. 730, 738-39, 103 S. Ct. 1535, 1541 (1983) (plurality)
(footnote omitted).
As the Florida Supreme Court explains in Ensor v. State, these visually
similar situations fall into one of three categories for purposes of Fourth
Amendment analysis:
The term “plain view” has been misunderstood and
misapplied because courts have made it applicable to
three distinct factual situations. This has resulted in
confusion of the elements of the “plain view doctrine.” To
eliminate this confusion, we believe it appropriate to
distinguish the true “plain view doctrine” as established
in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.
2022, 29 L.Ed.2d 564 (1971), from other situations where
officers observe contraband.
The first factual situation we identify as a “prior
valid intrusion.” In this situation, an officer is legally
inside, by warrant or warrant exception, a
constitutionally protected area and inadvertently
observes contraband also in the protected area. It is this
situation for which the United States Supreme Court
created the “plain view doctrine” in Coolidge and held
that an officer could constitutionally seize the contraband
in “plain view” from within this protected area. We
emphasize that it is critical under this doctrine for the
officer to be already within the constitutionally protected
area when he inadvertently discovers the contraband.
We identify the second factual situation as a “non-
intrusion.” This situation occurs when both the officer
and the contraband are in a non-constitutionally
protected area. Because no protected area is involved, the
resulting seizure has no fourth amendment ramifications,
and, while the contraband could be defined as in “plain
view,” it should not be so labeled to prevent any confusion
with the Coolidge “plain view doctrine.”
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STATE V. GRICE
HUDSON, J., dissenting
The third situation concerns a “pre-intrusion.”
Here, the officer is located outside of a constitutionally
protected area and is looking inside that area. If the
officer observes contraband in this situation, it only
furnishes him probable cause to seize the item. He must
either obtain a warrant or have some exception to the
warrant requirement before he may enter the protected
area and seize the contraband. As with the non-intrusion
situation, the term “plain view” should not be employed
here to prevent confusion. For clarity, we label an
observation in the latter two non-Coolidge situations as a
legally permissive “open view.”
403 So. 2d 349, 352 (Fla. 1981), superseded on other grounds by statute, Fla. Stat. §
790.25(5) (Supp. 1982). These distinctions come from the limits to the plain view
doctrine, as explained by the Supreme Court in Texas v. Brown. While the majority
believes that this case falls within the first category of cases described in Ensor, I
believe it falls within the third. Consequently, the majority analyzes the
constitutionality of the seizure of the contraband in this case under the “plain view”
doctrine, while I analyze it as a “pre-intrusion” case.
Essentially, I do not agree with the majority that simply because the officers
were lawfully on the front porch, they could move to what the State has identified
as defendant’s “backyard” and “behind the residence.” I do not dispute that the
officers here had every right to be on the front (or, in this case, side) porch to
conduct a “knock and talk” investigation. See State v. Lupek, 214 N.C. App. 146,
151, 712 S.E.2d 915, 919 (2011) (“In North Carolina, however, no search of the
curtilage occurs when an officer is in a place where the public is allowed to be, such
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STATE V. GRICE
HUDSON, J., dissenting
as at the front door of a house. It is well established that ‘[e]ntrance [by law
enforcement officers] onto private property for the purpose of a general inquiry or
interview is proper.’ ” (alterations in original) (quoting State v. Prevette, 43 N.C.
App. 450, 455, 259 S.E.2d 595, 599-600 (1979), appeal dismissed and disc. rev.
denied, 299 N.C. 124, 261 S.E.2d 925, cert. denied, 447 U.S. 906, 100 S. Ct. 2988
(1980))). The front porch, however, is very different from the backyard and the rest
of the curtilage. The Supreme Court has repeatedly emphasized the high privacy
interest individuals hold in the curtilage. See, e.g., United States v. Dunn, 480 U.S.
294, 300, 107 S. Ct. 1134, 1139 (1987) (recognizing “that the Fourth Amendment
protects the curtilage of a house”); United States v. Martinez–Fuerte, 428 U.S. 543,
561, 96 S. Ct. 3074, 3084 (1976) (noting that the “sanctity of private dwellings” is
“afforded the most stringent Fourth Amendment protection”). Further, as noted by
the majority, this Court has specifically defined the curtilage to include areas
identical to where the contraband was observed in this case: “[T]he curtilage of the
home will ordinarily be construed to include at least the yard around the dwelling
house as well as the area occupied by barns, cribs, and other outbuildings.” State v.
Frizzelle, 243 N.C. 49, 51, 89 S.E.2d 725, 726 (1955) (citations omitted). Therefore,
although the officers here were lawfully on the porch that served as the main
entrance to the house, they had no right to enter other portions of defendant’s
curtilage. Defendant’s “backyard,” located “behind the residence,” is still “afforded
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STATE V. GRICE
HUDSON, J., dissenting
the most stringent Fourth Amendment protection.” Martinez-Fuerte, 428 U.S. at
561, 96 S. Ct. at 3084.
Because the officers were outside the protected area, I conclude that the
Fourth Amendment requires either (1) a warrant or (2) probable cause and exigent
circumstances to allow the officers to cross into the protected area and seize the
contraband. Here there was no warrant. On the other hand, there was probable
cause given the immediately apparent contraband nature of the plants, so exigent
circumstances, if they existed, could have justified a seizure of the contraband.
However, I do not agree that such circumstances existed. The majority relies on the
following facts to establish exigent circumstances: “[t]he plants were small and
easily transportable, [ ] there was a passenger vehicle in the driveway,” and two
dogs were roaming around the yard. From these facts, the inference is drawn that
someone was at home and could destroy the plants after the officers left the scene.
Even if the officers assumed someone was at the residence, these facts do not create
a typical “exigent circumstances” fact pattern. Usually, the suspect and the
contraband are in one location, and the officers are in a different location—as in, the
officers are outside the house and the suspect is inside with the contraband,
contemplating potential destruction of it. See, e.g., State v. Rojas, ___ N.C. App. ___,
745 S.E.2d 374, 2013 WL 2407224, at *5 (2013) (unpublished) (explaining that
“marijuana is often times disposed of by flushing it down the toilet or putting it in
the garbage disposal”). Here, on the other hand, it is the officers and the
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STATE V. GRICE
HUDSON, J., dissenting
contraband that are together, and the suspect is nowhere to be seen. If these
circumstances support a finding of exigent circumstances, it is difficult to imagine
when a simple sighting of portable contraband would not. See State v.
Yananokwiak, 65 N.C. App. 513, 517, 309 S.E.2d 560, 563 (1983) (“The state’s
argument that exigency is shown simply because drugs are easily destroyed would
permit the exigency exception to swallow the entire warrant requirement.”).
Finally, the burden is on the State to prove the exigent circumstances. State v.
Allison, 298 N.C. 135, 141, 257 S.E.2d 417, 421 (1979) (citation omitted). Here the
State did not present any evidence to the trial court regarding exigent
circumstances, but argued for it and the trial court found as fact: “That this seizure
was to prevent [what appeared to marijuana plants’] destruction.” The basis for
this finding is not apparent, and the trial court made no conclusions of law on that
issue. Therefore, exigent circumstances cannot properly justify the officers’
intrusion into defendant’s protected curtilage.
For these reasons, I conclude that the officers were not justified in seizing the
plants here. In my view, defendant’s Fourth Amendment rights were violated and
the evidence should have been suppressed.
Having determined that the challenged evidence was obtained in violation of
defendant’s Fourth Amendment rights, and thus should have been suppressed, the
issue to me becomes whether erroneous admission of the evidence constitutes plain
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HUDSON, J., dissenting
error. In State v. Lawrence, 365 N.C. 506, 723 S.E.2d 326 (2012), we recently
“reaffirm[ed]” the principles forming “the plain error standard of review” on appeal:
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial.
To show that an error was fundamental, a defendant
must establish prejudice—that, after examination of the
entire record, the error had a probable impact on the
jury’s finding that the defendant was guilty. Moreover,
because plain error is to be applied cautiously and only in
the exceptional case, the error will often be one that
seriously affects the fairness, integrity or public
reputation of judicial proceedings.
Id. at 518, 723 S.E.2d at 334 (brackets, citations, and internal quotation marks
omitted). I disagree with the assertion that the consideration of inadmissible
evidence does not affect the “fairness, integrity, or public reputation of judicial
proceedings.” Id. In my view, it does exactly that. The majority appears to suggest
that because defendant actually possessed the contraband, his conviction does not
offend our justice system. I cannot agree with that premise. In my view, a
conviction obtained with evidence which should not have been admitted is as
offensive to our justice system as a wrongful conviction.
For the above reasons, I respectfully dissent.
Justice BEASLEY joins in this dissenting opinion.
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State v. Grice
Combined Opinion