Chapter 3 Appendix: Case Summaries

Search and Seizure Issues

What Is a Search and Seizure and What Evidence May Be Searched for and Seized

Definition of a Search

UNITED STATES SUPREME COURT

Grady v. North Carolina, 575 U.S. 306 (2015). The Court ruled that under United States v. Jones, 565 U.S. 400 (2012), and Florida v. Jardines, 569 U.S. 1 (2013), satellite-based monitoring for sex offenders constitutes a search under the Fourth Amendment. The Court stated that “a State . . . conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” Grady, 575 U.S. at 309. The Court rejected the reasoning of the North Carolina Court of Appeals, 233 N.C. App. 788 (2014) (unpublished), which had relied on the fact that the monitoring program was “civil in nature” to conclude that no search occurred, explaining: “A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment.” Grady, 575 U.S. at 309. The Court did not decide the “ultimate question of the program’s constitutionality” because the state courts had not assessed whether the search was reasonable. The Court remanded for further proceedings. See State v. Blue, 246 N.C. App. 259 (2016) (trial court erred under Grady in failing to determine, based on the totality of circumstances, whether the satellite-based monitoring program constituted a reasonable search under the Fourth Amendment; court remanded case to the trial court for hearing, appropriate findings, and ruling; State at hearing has the burden of proving that the search was reasonable); State v. Morris, 246 N.C. App. 349 (2016) (similar ruling).

Florida v. Jardines, 569 U.S. 1 (2013). The Court ruled that officers’ use of a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home was a “search” within the meaning of the Fourth Amendment. The Court’s reasoning was based on the theory that the officers engaged in a physical intrusion of a constitutionally protected area. Applying that principle, the Court ruled:

The officers were gathering information in an area belonging to [the defendant] and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner. Id. at 5–6.

The Court did not decide the case on a reasonable-expectation-of-privacy analysis.

United States v. Jones, 565 U.S. 400 (2012). The Court ruled that the government’s installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle’s movements on public streets constituted a “search” within the meaning of the Fourth Amendment. Officers who suspected that the defendant was involved in drug trafficking installed a GPS device without a valid search warrant on the undercarriage of a vehicle while it was parked in a public parking lot in Maryland. Over the next twenty-eight days, the government used the device to track the vehicle’s movements and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet and communicated that location by cellular phone to a government computer. It relayed more than 2,000 pages of data over the four-week period. The defendant was charged with several drug offenses. He unsuccessfully sought to suppress the evidence obtained through the GPS device. The government argued before the United States Supreme Court that a warrant was not required for the GPS device. Concluding that the evidence should have been suppressed, the Court characterized the government’s conduct as having “physically occupied private property for the purpose of obtaining information.” Thus, the Court had “no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 404. The Court declined to address whether the defendant had a reasonable expectation of privacy in the undercarriage of his car and in the car’s locations on the public roads, concluding that such an analysis was not required when the intrusion—as here—“encroached on a protected area.” Id. at 410.

Bond v. United States, 529 U.S. 334 (2000). A Border Patrol agent boarded a commercial bus at a permanent Border Patrol checkpoint. While walking from the back of the bus to the front, he squeezed soft luggage that passengers had placed in the overhead storage space above the seats. Above the defendant’s seat, he squeezed a green opaque canvas bag and noticed that it contained a brick-like object. The defendant admitted that the bag was his and then consented to allow the agent to open it. The officer discovered a brick of methamphetamine. The Court ruled that the officer’s squeeze of the bag was a search under the Fourth Amendment for which the officer did not have appropriate justification. The Court stated that when bus passengers place bags in an overhead bin, they expect that other passengers or bus employees may move them for one reason or another. Thus, passengers clearly expect that their bags may be handled. However, they do not expect that others will, as a matter of course, feel a bag in an exploratory manner, as was done in this case. The Court rejected the government’s argument, based on aircraft overflight cases (California v. Ciraolo, 476 U.S. 207 (1986), and Florida v. Riley, 488 U.S. 445 (1989)), that by exposing his bag to the public, the defendant lost a reasonable expectation of privacy that his bag would not be physically manipulated. Physically invasive inspection is simply more intrusive than purely visual inspection.

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989). Subjecting a person to a breath test and collecting and testing a person’s urine and blood are searches under the Fourth Amendment.

United States v. Jacobsen, 466 U.S. 109 (1984). A search under the Fourth Amendment occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. An officer’s examination of a package that had been inspected by a private carrier was not a search when the officer’s examination did not exceed the scope of the private carrier’s inspection. A field test of a substance to determine whether it is cocaine is not a search.

Illinois v. Andreas, 463 U.S. 765 (1983). Reopening a container after reseizing it was not a search when there was no substantial likelihood that the container’s contents had been changed between the time officers sealed it for delivery and when they reseized it from the defendant.

Katz v. United States, 389 U.S. 347 (1967). The government’s activities in electronically listening to and recording the defendant’s words violated the privacy upon which he justifiably relied while using a telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. Justice Harlan’s concurring opinion stated that (1) an enclosed telephone booth is an area where, like a home and unlike a field, a person has a constitutionally protected reasonable expectation of privacy; (2) electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (3) the invasion of a constitutionally protected area by government is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.

NORTH CAROLINA SUPREME COURT

State v. Grady, 372 N.C. 509 (2019). The court ruled that the satellite-based monitoring (SBM) of sex offenders violates the Fourth Amendment as applied to any unsupervised person who was ordered to enroll in SBM solely because the person is a recidivist. By unsupervised, the court meant a person not on probation, parole, or post-release supervision. For a detailed analysis of this case, see Jamie Markham, Satellite-Based Monitoring Is Unconstitutional for All Unsupervised Recidivists, N.C. Crim. L.: A UNC Sch. of Gov’t Blog (Sept. 12, 2019), nccriminallaw.sog.unc.edu/satellite-based-monitoring-is-unconstitutional-for-all-unsupervised-recidivists/.

State v. Miller, 367 N.C. 702 (2014). The court ruled that a police dog’s instinctive action, unguided and undirected by the police, that brings into plain view evidence not otherwise in plain view is not a search under the Fourth Amendment. Responding to a burglar alarm, officers arrived at the defendant’s home with a police dog, Jack. The officers deployed Jack to search the premises for intruders. Jack went from room to room until he reached a side bedroom, where he remained. When an officer entered to investigate, Jack was sitting on the bedroom floor staring at a dresser drawer, alerting the officer to the presence of drugs. The officer opened the drawer and found a brick of marijuana. Leaving the drugs there, the officer and Jack continued the protective sweep. Jack stopped in front of a closet and began barking at the closet door, alerting the officer to the presence of a human suspect. Unlike the passive sit-and-stare alert that Jack used to signal for the presence of narcotics, Jack was trained to bark to signal the presence of human suspects. Officers opened the closet and found two large black trash bags on the closet floor. When Jack nuzzled a bag, marijuana was visible. The officers secured the premises and obtained a search warrant. At issue on appeal was whether Jack’s nuzzling of the bag in the closet violated the Fourth Amendment. The court of appeals determined that Jack’s nuzzling of the bag was an action unrelated to the objectives of the authorized intrusion, creating a new invasion of the defendant’s privacy unjustified by the exigent circumstance that validated the entry. That court viewed Jack as an instrumentality of the police and concluded that “his actions, regardless of whether they are instinctive or not, are no different than those undertaken by an officer.” 228 N.C. App. 496, 503 (2013). The North Carolina Supreme Court disagreed, concluding that “Jack’s actions are different from the actions of an officer, particularly if the dog’s actions were instinctive, undirected, and unguided by the police.” 367 N.C. at 709. It ruled:

If a police dog is acting without assistance, facilitation, or other intentional action by its handler (. . . acting “instinctively”), it cannot be said that a State or governmental actor intends to do anything. In such a case, the dog is simply being a dog. If, however, police misconduct is present, or if the dog is acting at the direction or guidance of its handler, then it can be readily inferred from the dog’s action that there is an intent to find something or to obtain information. In short, we hold that a police dog’s instinctive action, unguided and undirected by the police, that brings evidence not otherwise in plain view into plain view is not a search within the meaning of the Fourth Amendment or Article I, Section 20 of the North Carolina Constitution. Therefore, the decision of the Court of Appeals that Jack was an instrumentality of the police, regardless of whether his actions were instinctive, is reversed. Id. at 713 (citation omitted).

The court remanded for the trial court to decide whether Jack’s nuzzling in this case was in fact instinctive, undirected, and unguided by the officers.

State v. Virgil, 276 N.C. 217 (1970). When a car was parked across a sidewalk, a search did not occur when officers inspected the outside chrome bolting below the door and saw blood.

NORTH CAROLINA COURT OF APPEALS

State v. Clyburn, 240 N.C. App. 428 (2015). The court of appeals reversed and remanded for further findings of fact a trial court decision concerning the defendant’s motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on the defendant’s person that, as a result of the search, was determined to have been stolen. The court ruled that under Riley v. California, 573 U.S. 373 (2014), the search was not justified as a search incident to arrest. As to whether the defendant had a reasonable expectation of privacy in the GPS device, the court ruled that a defendant may have a legitimate expectation of privacy in a stolen item if he or she acquired it innocently and does not know that the item was stolen. Here, the defendant offered evidence at the suppression hearing that, were it to be found believable, would allow the trial court to conclude that he had a legitimate possessory interest in the GPS device. However, because the trial court failed to make a factual determination concerning whether the defendant innocently purchased that device, the court reversed and remanded for further findings of fact.

State v. Borders, 236 N.C. App. 149 (2014). In this rape and murder case, the court ruled that a Fourth Amendment violation did not occur when an officer seized a cigarette butt containing the defendant’s DNA. The defendant, a suspect in a murder case, refused four requests by the police to provide a DNA sample. Acting with the primary purpose of obtaining a sample of the defendant’s DNA to compare to DNA from the victim’s rape kit, officers went to his residence to execute an unrelated arrest warrant. After the defendant was handcuffed and taken outside to the driveway, an officer asked him if he wanted to smoke a cigarette. The defendant said yes, and after he took several drags from the cigarette, the officer asked if he could take the cigarette to throw it away for the defendant. The defendant said yes, but instead of throwing away the cigarette, the officer extinguished it and placed it in an evidence bag. The DNA on the cigarette butt came back as a match to the rape-kit DNA. The court acknowledged that if the defendant had discarded the cigarette himself within the curtilage of the premises, the officers could not have seized it. However, the defendant voluntarily accepted the officer’s offer to throw away the cigarette butt, the court noted, rejecting the defendant’s argument that he had a reasonable expectation of privacy in the cigarette butt. When the defendant, while under arrest and handcuffed, placed the cigarette butt in the officer’s gloved hand—instead of on the ground or in some other object within the curtilage—the defendant relinquished possession of the butt and any reasonable expectation of privacy in it. Finally, although indicating that it was “troubled” by the officers’ trickery, the court concluded that the officers’ actions did not require suppression of the DNA evidence. The court reasoned that because “the police did not commit an illegal act in effectuating the valid arrest warrant and because the subjective motives of police do not affect the validity of serving the underlying arrest warrant,” suppression was not required. Id. at 169.

State v. Jones, 231 N.C. App. 123 (2013). The court ruled that the trial court did not err by requiring the defendant to enroll in lifetime satellite-based monitoring (SBM). The court rejected the defendant’s argument that SBM was an unreasonable search and seizure under United States v. Jones, 565 U.S. 400 (2012) (government’s installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle’s movements on public streets constitutes a “search”). The court found Jones irrelevant to a civil SBM proceeding.

In re V.C.R., 227 N.C. App. 80 (2013). Although an officer had reasonable suspicion to stop a juvenile, the officer’s subsequent conduct of ordering the juvenile to empty her pockets constituted a search, and this search was illegal; it was not incident to an arrest or consensual. The district court thus erred by denying the juvenile’s motion to suppress.

State v. Chambers, 203 N.C. App. 373 (2010) (unpublished). The court ruled that a license tag displayed on the back of a vehicle, as required by North Carolina law, does not provide a defendant with a subjective or objective reasonable expectation of privacy in the license tag. Thus, an officer who ran the license tag through the Division of Criminal Information and the Division of Motor Vehicles for violations and warrants did not conduct a search under the Fourth Amendment.

State v. Robinson, 187 N.C. App. 795 (2007). The defendant was convicted of multiple counts of first-degree statutory rape and sex offense with young girls. A videotape of the defendant engaging in the sexual activities was introduced at trial. The court ruled, relying on United States v. Runyan, 275 F.3d 449 (5th Cir. 2001), and United States v. Simpson, 904 F.2d 607 (11th Cir. 1990), that no Fourth Amendment violation occurred when an officer without a search warrant viewed the video­tape supplied by a private person who had viewed it and decided to give it to law enforcement, even though the officer’s viewing of the videotape was more thorough than the private person’s. The private person’s viewing of the videotape did not violate the Fourth Amendment because he was not acting under the authority of the State. The viewing effectively frustrated the defendant’s expectation of privacy concerning the videotape’s contents, and thus the officer’s later viewing did not violate the defendant’s Fourth Amendment rights. While the private person stated that he had only viewed portions of the videotape, his viewing “opened the container” of the videotape, and the later viewing of the entire videotape by the officer was not outside the scope of the private person’s viewing.

State v. Fisher, 141 N.C. App. 448 (2000). The court stated that a dog sniff of a vehicle’s exterior is not a search under the Fourth Amendment, citing state appellate cases finding that the dog sniffs of the following objects were not searches: a passenger’s luggage, State v. Odum, 119 N.C. App. 676 (1995); a briefcase, State v. McDaniels, 103 N.C. App. 175 (1991); an airplane, State v. Darack, 66 N.C. App. 608 (1984); and a safety-deposit box, State v. Rogers, 43 N.C. App. 475 (1979). The court also noted similar statements in United States v. Place, 462 U.S. 696 (1983), and City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

State v. Church, 110 N.C. App. 569 (1993). Based on a first-time informant’s information that marijuana was being grown near a white frame house, officers went to investigate. They saw a white frame house and a second house with wood siding, about 150 feet west of the white house. The officers walked to the front porch of the white house, knocked on the door, and received no answer. From the porch, they saw (1) two marijuana plants growing along a fence that went from the white house to a third residence east of the white house and (2) a third marijuana plant growing directly behind the second house. After seeing the plants, the officers walked to the second house to determine who lived in each of the houses. One officer knocked on the front and side doors and then saw the defendant emerge from the garage that was next to the second house. The defendant informed the officers that he owned both houses but lived in the second house. The officers asked the defendant if they could search the houses and garage, but he refused. After arresting the defendant, the officers asked him for a garage-door key, which he produced. An officer inserted the key in the lock, found that it fit, and withdrew the key without opening the door.

The court ruled that the insertion of the key into the lock was not an unlawful search. [Author’s note: Other courts have disagreed about whether inserting a key into a lock is a search; compare United States v. Lyons, 898 F.2d 210 (1st Cir. 1990) (inserting key into padlock of storage unit is not a search), and United States v. Salgado, 250 F.3d 438 (6th Cir. 2001) (inserting key into apartment lock is not a search), with United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991) (inserting key into apartment lock is a search, but only reasonable suspicion is required to do so).]

FEDERAL APPELLATE COURTS

United States v. Ryles, 988 F.2d 13 (5th Cir. 1993). An officer conducted a search under the Fourth Amendment when he placed his head into the defendant’s van, although his action was reasonable based on the facts in this case.

United States v. George, 971 F.2d 1113 (4th Cir. 1992). A person has no reasonable expectation of privacy in the exterior of a vehicle in a public place, including its tires.

United States v. Williams, 902 F.2d 678 (8th Cir. 1990). After the defendant’s arrest, an ultraviolet light examination of his hands detected the presence of fluorescent detection powder that officers had placed in a bag used for a controlled drug delivery. The court ruled that such an examination was not a search under the Fourth Amendment.

Definition of a Seizure

UNITED STATES SUPREME COURT

Soldal v. Cook County, 506 U.S. 56 (1992). Officers’ involvement with moving a mobile home during an eviction was a seizure under the Fourth Amendment.

United States v. Jacobsen, 466 U.S. 109 (1984). A seizure of property under the Fourth Amendment occurs when there is a meaningful interference with an individual’s possessory interests in that property. The destruction of a trace amount of a powdery substance during a field test to determine whether it was cocaine was not a seizure.

United States v. Van Leeuwen, 397 U.S. 249 (1970). Detention of first-class mail so that a search warrant could be obtained was reasonable.

FEDERAL APPELLATE COURTS

United States v. Letsinger, 93 F.3d 140 (4th Cir. 1996). Drug task force officers were standing outside the defendant’s train compartment. The defendant was standing in the doorway, and his bag was behind him inside the compartment. During a conversation between the officers and the defendant, an officer told the defendant that they were going to detain his bag. However, the officers made no effort to take possession of the bag and the defendant did not give the bag to them or otherwise assent to their taking it. Relying on California v. Hodari D., 499 U.S. 621 (1991), the court ruled that the bag was not seized under the Fourth Amendment because the defendant did not acquiesce to the officer’s statement that they were going to detain his bag.

United States v. Brown, 884 F.2d 1309 (9th Cir. 1989). The brief detention of checked luggage at an airport while it was moving on a conveyor belt to a cargo hold was not a seizure.

Evidence That May Be Searched for and Seized

(This topic is discussed in the chapter text under “Evidence That May Be Searched and Seized.”)

UNITED STATES SUPREME COURT

Zurcher v. Stanford Daily, 436 U.S. 547 (1978). The Fourth Amendment does not prohibit a search of property with a search warrant on the grounds that the owner or possessor of the premises to be searched is not reasonably suspected of complicity in the crime being investigated. [Author’s note: But see the limitations on searches by law enforcement officers and others of news media work-product materials in 42 U.S.C.A. §§ 2000aa through 2000aa-7, discussed in the chapter text under “Documents in Possession of News Media, Writers, and Publishers.”]

Andresen v. Maryland, 427 U.S. 463 (1976). Documents were properly seized under the Warden v. Hayden rationale (discussed immediately below), even though they were not directly related to the crime that was the basis for issuance of the search warrant. The documents were relevant to prove a similar criminal act committed by the defendant and thus helped prove the intent-to-defraud element of the crime that was the object of the search warrant.

Warden v. Hayden, 387 U.S. 294 (1967). Officers entered a house looking for an armed-robbery suspect and the weapon used during the robbery. While looking for the weapon in a washing machine, an officer found a jacket and trousers of the type that the robber reportedly wore during the robbery. The Court ruled that an officer may seize not only instrumentalities (for example, a crowbar used during a burglary); fruits of a crime (for example, money stolen during a crime); weapons; and contraband (for example, heroin), but also evidence (known as “mere evidence”) that will assist in arresting or prosecuting a person. Evidence that is not an instrumentality, fruit of a crime, or contraband may be seized only if there is a nexus (connection) between it and the crime. In this case, the clothes were properly seized because the officer had probable cause to believe that they would assist in identifying the offender.

NORTH CAROLINA SUPREME COURT

State v. Lane, 328 N.C. 598 (1991). The defendant voluntarily turned over a weapon to an officer, who properly declined to return it because he had probable cause to believe that it was the weapon used in an unsolved murder. Relying on United States v. Edwards, 415 U.S. 800 (1974), the court also ruled that there is no constitutional violation in admitting into evidence testing on the weapon that had been lawfully seized without a warrant.

State v. Williams, 299 N.C. 529 (1980). Officers seized some letters and photographs that they inadvertently had seen in plain view during an earlier search of a mobile home with a search warrant for heroin. The court ruled that these materials were properly seized under the plain-view doctrine because they were evidence of the identity of those who possessed the heroin. See also State v. Zimmerman, 23 N.C. App. 396 (1974) (traffic citation was properly seized because it helped prove that defendant lived where marijuana had been found during execution of search warrant); State v. Richards, 294 N.C. 474 (1978) (weapons were properly seized because officers had probable cause to believe that they might be connected with, and used as evidence in, the crime being investigated); State v. Newsom, 284 N.C. 412 (1973) (currency and checks were properly seized during execution of search warrant for drugs because officers had reason to believe that these items were related to purchase or distribution of drugs; defendant had attempted to dispose of checks before officers entered apartment to search); State v. Tate, 58 N.C. App. 494, aff’d, 307 N.C. 464 (1983) (during execution of search warrant for cocaine, drug apparatus, cash, and defendants’ mail and photographs were properly seized).

Observations and Actions That May Not Implicate Fourth Amendment Rights

Private Search or Seizure

(This topic is discussed in the chapter text under “Observations and Actions That May Not Implicate Fourth Amendment Rights.”)

United States Supreme Court

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989). Federal government regulations that (1) mandate that railroad companies test the blood and urine of railroad workers after major train accidents and (2) authorize (but do not require) the testing of railroad workers who violate certain safety rules involve sufficient government action to make the testing subject to the Fourth Amendment. See also Boesche v. Raleigh-Durham Airport Authority, 111 N.C. App. 149 (1993) (airport authority’s drug-testing policy requiring testing of maintenance worker was constitutional).

United States v. Jacobsen, 466 U.S. 109 (1984). A private freight carrier’s examination of a damaged package is a private action that is not governed by the Fourth Amendment. A federal drug agent’s later inspection of the package, at least to the extent that he learned nothing that had not been discovered previously during the private search, did not infringe on the defendant’s legitimate expectation of privacy and therefore was not a search under the Fourth Amendment.

Walter v. United States, 447 U.S. 649 (1980). The plurality opinion announcing the judgment of the Court (which clearly represents prevailing law) ruled that an FBI agent’s screening of obscene films without a search warrant violated the Fourth Amendment because the screening exceeded the scope of an earlier search by a private person and the screening—which was an additional search—was not supported by any justification that would allow a search without a search warrant. See also United States v. Runyan, 275 F.3d 449 (5th Cir. 2001) (officers’ examination of computer disks exceeded scope of prior private search).

Coolidge v. New Hampshire, 403 U.S. 443 (1971). When the defendant’s wife voluntarily and without police coercion took her husband’s guns out of a closet and gave them to officers, her action was private and was not a search under the Fourth Amendment.

Burdeau v. McDowell, 256 U.S. 465 (1921). Actions of private detectives and other private individuals in taking papers from a safe and desk were not governed by the Fourth Amendment.

North Carolina Supreme Court

State v. Terrell, 372 N.C. 657 (2019). The court ruled that an officer’s warrantless search of a defendant’s thumb drive following a prior search by a private individual violated the defendant’s Fourth Amendment rights. While examining a thumb drive belonging to the defendant, the defendant’s girlfriend saw an image of her 9-year-old granddaughter sleeping, exposed from the waist up. Believing the image was inappropriate, the girlfriend contacted staff at the sheriff’s office and gave them the thumb drive. Later, when a detective conducted a warrantless search of the thumb drive to locate the image in question, he discovered other images of what he believed to be child pornography before he found the photograph of the granddaughter. The detective then applied for and obtained a warrant to search the contents of the thumb drive for “contraband images of child pornography and evidence of additional victims and crimes.” The initial warrant application relied only on information from the defendant’s girlfriend, but after the State Bureau of Investigation (SBI) requested additional information, the detective included information about the images he found in his initial search of the thumb drive. The SBI’s forensic examination turned up twelve images, ten of which had been deleted and archived in a way that would not have been viewable without special forensic capabilities.

The court concluded that the girlfriend’s opening the thumb drive and viewing some of its contents did not frustrate the defendant’s privacy interest in the entire contents of the device. To the contrary, digital devices can retain massive amounts of information, organized into files that are essentially containers within containers. Because the trial court did not make findings establishing the precise scope of the girlfriend’s search, it likewise could not find that the detective had the level of “virtual certainty” contemplated by United States v. Jacobsen, 466 U.S. 109 (1984), that the device contained nothing else of significance or that a subsequent search would not tell him anything more than he already had been told. The search therefore was not permissible under the private-search doctrine. The court affirmed the decision of the court of appeals, 257 N.C. App. 884 (2018), and remanded the case for consideration of whether the warrant would have been supported by probable cause without consideration of the evidence obtained through the unlawful search.

State v. Sanders, 327 N.C. 319 (1990). The court adopted a totality of circumstances test to determine whether a private person’s search or seizure is attributable to law enforcement so that it would constitute a search or seizure governed by the Fourth Amendment. Factors to consider are (1) the private person’s motivation for conducting the search or seizure; (2) the degree of law enforcement involvement, such as advice, encouragement, and knowledge of the nature of the person’s activities; and (3) the legality of conduct that was encouraged by law enforcement. The court determined in this case that the private person’s (Gardin’s) entry by ruse into a home and the taking of jewelry from the defendant’s bedroom was a private search. While Gardin’s actions were based on information shared with him by law enforcement officers and his actions furthered their efforts, his primary purpose in obtaining the jewelry was to console a grieving family and to alleviate community tensions that a murder had caused. Gardin’s seizure of the jewelry was without the knowledge, encouragement, or acquiescence of law enforcement officers.

State v. Kornegay, 313 N.C. 1 (1985). A private secretary’s act of copying her employer’s records to protect herself and then voluntarily giving them to law enforcement officers was a private action and not a search under the Fourth Amendment. See also United States v. Knoll, 116 F.3d 994 (2d Cir. 1997) (private person’s act of burglarizing law office and turning over stolen files was not search under Fourth Amendment based on facts in this case).

State v. Reams, 277 N.C. 391 (1970). When a detective asked the defendant’s wife for her husband’s gun and she later voluntarily and without police coercion took the gun from a closet and gave it to an officer, her action was private and not a search under the Fourth Amendment.

North Carolina Court of Appeals

State v. Weaver, 231 N.C. App. 473 (2013). The court ruled that the trial court, in granting the defendant’s motion to suppress in a DWI case, erred by concluding that a licensed security guard was a state actor when he stopped the defendant’s vehicle. Determining whether a private citizen is a state actor requires consideration of the totality of the circumstances, with special consideration of (1) the citizen’s motivation for the search or seizure; (2) the degree of governmental involvement, such as advice, encouragement, and knowledge about the nature of the citizen’s activities; and (3) the legality of the conduct encouraged by the officer. Importantly, the court noted, once a private search or seizure has been completed, later involvement of government agents does not transform the original intrusion into a governmental search. Alternatively, the court ruled that even if the security guard was a state actor, reasonable suspicion existed for the stop.

State v. McBennett, 191 N.C. App. 734 (2008). A waitress who delivered room service to the defendant’s hotel room reported that the room was in disarray. A hotel manager decided to investigate but could not enter the room because the door caught on the interior lock. The defendant told the manager that he did not need housekeeping and did not open the door. The manager called law enforcement. When the defendant refused to open the door, the manager told the defendant that they would break the door down. The defendant opened the door, and the first pair of officers to enter the room saw marijuana and syringes in the room.

(1) The court ruled that hotel personnel have the implied right to enter a hotel room to keep the hotel in a reasonably safe condition and to exercise reasonable care to discover criminal acts that might cause harm to other guests. The entry of hotel personnel for this purpose is not a search under the Fourth Amendment. (2) The court ruled that the officers’ entry into the hotel room with hotel personnel was a search under the Fourth Amendment and that the discovery of the evidence in the room was not justified by the plain-view theory because the officers’ entry was not lawful. There were no exigent circumstances to authorize the entry. Also, the defendant did not voluntarily consent to allow the officers’ entry.

State v. Robinson, 187 N.C. App. 795 (2007). The defendant was convicted of multiple counts of first-degree statutory rape and sex offense with young girls. A videotape of the defendant engaging in the sexual activities was introduced at trial. The court ruled, relying on United States v. Runyan, 275 F.3d 449 (5th Cir. 2001), and United States v. Simpson, 904 F.2d 607 (11th Cir. 1990), that no Fourth Amendment violation occurred when an officer without a search warrant viewed the videotape supplied by a private person who had viewed it and decided to give it to law enforcement, even though the officer’s viewing of the videotape was more thorough than the private person’s. The private person’s viewing of the videotape did not violate the Fourth Amendment because he was not acting under the authority of the state. The private viewing effectively frustrated the defendant’s expectation of privacy concerning the videotape’s contents, and thus the officer’s later viewing did not violate the defendant’s Fourth Amendment rights. While the private person stated that he had only viewed portions of the videotape, his viewing “opened the container” of the videotape, and the later viewing of the entire videotape by the officer was not outside the scope of the private person’s viewing.

State v. Keadle, 51 N.C. App. 660 (1981). A state university dormitory adviser’s inspection of a student’s room was a private action and was not a search under the Fourth Amendment.

State v. Morris, 41 N.C. App. 164 (1979). An air freight carrier employee’s opening of a package on his own initiative was not a search under the Fourth Amendment.

State v. Reagan, 35 N.C. App. 140 (1978). A larceny victim’s looking into the defendant’s locked barn without police involvement was not a search under the Fourth Amendment.

State v. Carr, 20 N.C. App. 619 (1974). A private person’s inspection of an impounded car made in an attempt to find stolen property was not a search under the Fourth Amendment because the inspection was done without police involvement.

State v. Peele, 16 N.C. App. 227 (1972). A larceny victim’s search of the defendant’s attic made without police involvement was not a search under the Fourth Amendment.

Federal Appellate Courts

United States v. Dahlstrom, 180 F.3d 677 (5th Cir. 1999). Employees’ taking of documents from a business office was a private search when the employees devised a plan to take documents on their own and the presence of a sheriff was solely to keep the peace.

United States v. Shahid, 117 F.3d 322 (7th Cir. 1997). Private mall’s security officers, whose primary role was to provide safety and security for all people on mall property, were not government actors under the Fourth Amendment when they detained and searched a shoplifter.

United States v. Leffall, 82 F.3d 343 (10th Cir. 1996). The court stated that the test to determine when a search by a private person becomes government action under the Fourth Amendment is a two-part inquiry: (1) whether the government knew of and acquiesced in the intrusive conduct and (2) whether the party performing the search intended to assist law enforcement efforts or to further the party’s own ends. In this case, the court ruled that an airline employee who independently decided to open a package because he believed it contained contraband conducted a private search even though he asked a law enforcement officer to witness his opening of the package. The officer did not participate in the search or encourage the airline employee to search the package. Compare with United States v. Souza, 223 F.3d 1197 (10th Cir. 2001) (UPS employee’s opening package was governmental search because it was orchestrated by law enforcement officers; employee did not have legitimate, independent motivation to open package).

United States v. Cleaveland, 38 F.3d 1092 (9th Cir. 1994). A public power company received an anonymous tip that there was an illegal power diversion and possible marijuana manufacturing at the defendant’s residence. Power company employees planned to go to the residence to investigate the power diversion and asked police to be present in case danger arose. While the employees investigated the power meter, an officer waited a block away. Based on the information learned by the employees, the officer obtained a search warrant to search the residence for marijuana. The court ruled that the search by the power company employees was a private search because they initiated the plan to inspect the meter. Even though they may have had dual motives to conduct the inspection—to recover money for the company’s loss of power and to assist the police in capturing the power thief and uncovering the marijuana manufacturing—the motive to recover for the loss of power was independent of the other motive.

United States v. Koenig, 856 F.2d 843 (7th Cir. 1988). A Federal Express security officer was not acting as a government agent when he opened a package and discovered cocaine. The company’s policy of opening suspicious packages was based on its own sound business interests. The fact that the company also maintained good relations with law enforcement agencies and reported discoveries of suspected drugs to them did not convert private searches to those searches governed by the Fourth Amendment. See also United States v. Young, 153 F.3d 1079 (9th Cir. 1998) (similar ruling); United States v. Simpson, 904 F.2d 607 (11th Cir. 1990) (mere fact that Federal Express employees receive training from government concerning when to contact government agents after they discover contraband does not make them agents of government when searches they conduct are initiated by Federal Express employees for normal business purposes).

Abandoned Property and Garbage

(This topic is discussed in the chapter text under “Abandoned Property and Garbage.”)

United States Supreme Court

Smith v. Ohio, 494 U.S. 541 (1990). A non-uniformed officer approached the defendant as he left a private residence and entered a YMCA parking lot. The defendant was carrying a grocery bag. The officer, without informing the defendant that he was an officer, asked the defendant to come to him. The defendant did not respond and kept walking. When the officer identified himself as an officer, the defendant threw the grocery bag onto the hood of his car and turned to face the approaching officer. The Court ruled that the defendant did not abandon his grocery bag because he was protecting it from the officer’s inspection by placing it on his car.

California v. Greenwood, 486 U.S. 35 (1988). The Court ruled that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home. A defendant’s asserted expectation of privacy in that garbage is not one that society is prepared to accept as reasonable. Thus, police did not violate the defendant’s Fourth Amendment rights when they obtained (from the defendant’s regular trash collector) garbage the defendant had left on the curb in front of his house for pickup and then searched it and found evidence of narcotics use. The Court’s ruling did not rest on the abandonment justification; instead, the Court stated that the defendant exposed his garbage to the public by placing it by the curb and thus did not have a reasonable expectation of privacy in the garbage.

Abel v. United States, 362 U.S. 217 (1960). After the defendant was arrested in his hotel room, he agreed to check out. He removed all the items he wanted to take and left others. He paid his hotel bill and turned in his key. Officers then received permission from hotel management and searched the room. The Court ruled that there was no search or seizure because the room had been abandoned. See also United States v. Kitchens, 114 F.3d 29 (4th Cir. 1997) (absent a pattern or practice of allowing guests to stay in their hotel rooms past checkout time, a guest does not have a reasonable expectation of privacy in his or her hotel room after checkout time). But see United States v. Owens, 782 F.2d 146 (10th Cir. 1986) (motel guest had a reasonable expectation of privacy for a short period past checkout time).

Hester v. United States, 265 U.S. 57 (1924). The defendant and a companion dropped containers of illegal whiskey while law enforcement officers were pursuing them. No search or seizure occurred when the officers examined the contents of the containers, because they had been abandoned.

North Carolina Supreme Court

State v. Hauser, 342 N.C. 382 (1995). A detective made arrangements with the city sanitation department to collect trash at the defendant’s residence and give it to two detectives. A sanitation worker collected the garbage left at the back of the residence for collection. The collection was routine except that the sanitation worker prevented the garbage from commingling with other garbage by depositing the defendant’s garbage into a container in the back of a garbage truck instead of into the truck’s collection bin. The sanitation worker gave the defendant’s garbage to the detectives, who found cocaine residue in it. One of the detectives then obtained a search warrant based on the cocaine found in the garbage and information received from four informants. One of the informants stated that the defendant had sold him cocaine at the defendant’s residence. In addition, the officers provided facts showing the reliability of the informants’ information. The officers executed the search warrant, and more than a pound of cocaine was found in the defendant’s residence.

The court, disavowing a contrary conclusion in the court of appeals opinion in this case, 115 N.C. App. 431 (1994), ruled that the search of the defendant’s garbage did not violate the Fourth Amendment based on the ruling in California v. Greenwood, 486 U.S. 35 (1988) (no reasonable expectation of privacy under Fourth Amendment in garbage left for collection). The defendant sought to distinguish Greenwood by arguing that the garbage was left at the curb in Greenwood while the garbage in this case was left for collection within the curtilage of the home, the defendant’s backyard. The court rejected the defendant’s argument, relying on United States v. Hedrick, 922 F.2d 396 (7th Cir. 1991) (no Fourth Amendment violation when officers seized garbage placed for collection eighteen to twenty feet within home’s curtilage; garbage was placed in view of public passing by on the sidewalk, distance between garbage and sidewalk was short, and there was no fence or other barrier preventing public access to garbage). The court stated that the location of the defendant’s garbage within the home’s curtilage did not automatically establish that he possessed a reasonable expectation of privacy in it. Relying on United States v. Biondich, 652 F.2d 743 (8th Cir. 1981) (no Fourth Amendment violation when officer arranged with regular trash collection service to deliver defendant’s garbage to officer, even though there may have been expectation of privacy in garbage while it remained within curtilage), and distinguishing United States v. Certain Real Property Located at 987 Fisher Road, 719 F. Supp. 1396 (E.D. Mich. 1989) (Fourth Amendment was violated when police went onto defendant’s property and seized garbage bags placed against back wall of house), the court ruled that the defendant did not retain a reasonable expectation of privacy in his garbage once it left his yard in the usual manner.

North Carolina Court of Appeals

State v. Williford, 239 N.C. App. 123 (2015). The court ruled that the trial court did not err by denying the defendant’s motion to suppress DNA evidence obtained from his discarded cigarette butt. When the defendant refused to supply a DNA sample in connection with a rape and murder investigation, officers sought to obtain his DNA by other means. After the defendant discarded a cigarette butt in a parking lot, officers retrieved it. The parking lot was located directly in front of the defendant’s four-unit apartment building, was uncovered, and included five to seven unassigned parking spaces used by the residents. The area between the road and the parking lot was heavily wooded, but no gate restricted access to the lot and no signs suggested either that access to the parking lot was restricted or that the lot was private. After DNA on the cigarette butt matched DNA found on the victim, the defendant was charged with the crimes. At trial, the defendant unsuccessfully moved to suppress the DNA evidence. On appeal, the court rejected the defendant’s argument that the seizure of the cigarette butt violated his constitutional rights because it occurred within the curtilage of his apartment:

[W]e conclude that the parking lot was not located in the curtilage of defendant’s building. While the parking lot was in close proximity to the building, it was not enclosed, was used for parking by both the buildings’ residents and the general public, and was only protected in a limited way. Consequently, the parking lot was not a location where defendant possessed “a reasonable and legitimate expectation of privacy that society is prepared to accept.” Id. at 128 (citations omitted).

Next, the court rejected the defendant’s argument that even if the parking lot was not considered curtilage, he still maintained a possessory interest in the cigarette butt because he did not put it in a trash can or otherwise convey it to a third party. The court reasoned that the cigarette butt was abandoned property. Finally, the court rejected the defendant’s argument that even if officers lawfully obtained the cigarette butt, they still were required to obtain a warrant before testing it for his DNA because he had a legitimate expectation of privacy in his DNA. The court reasoned that the extraction of DNA from an abandoned item does not implicate the Fourth Amendment.

State v. Joe, 222 N.C. App. 206 (2012). The court ruled that the defendant did not voluntarily abandon controlled substances. Noting that the defendant was illegally arrested without probable cause, the court concluded that property abandoned as a result of illegal police activity cannot be held to have been voluntarily abandoned.

State v. Eaton, 210 N.C. App. 142 (2011). The court ruled that because the defendant had not been seized under the Fourth Amendment when he discarded a plastic baggie beside a public road, the baggie was abandoned property in which the defendant no longer retained a reasonable expectation of privacy. Thus, no Fourth Amendment violation occurred when an officer took possession of the baggie.

State v. Reed, 182 N.C. App. 109 (2007). Two detectives investigating a burglary, sexual offense, and robbery arrived at the defendant’s apartment to talk with him. The defendant led the detectives to a small patio at the back of his apartment. After the defendant finished a cigarette, he flicked the butt at a pile of trash located in the corner of the concrete patio. The butt struck the pile of trash and rolled between the defendant and one of the detectives, who kicked the butt off the patio into the grassy common area. The conversation ended and the detective, who had kept his eye on the still-burning cigarette butt, retrieved the butt after the other detective and the defendant turned to go back inside the apartment. A DNA test of the cigarette butt resulted in evidence introduced against the defendant at trial. The court ruled, relying on State v. Rhodes, 151 N.C. App. 208 (2002) (officer’s warrantless search of trash can located immediately by steps to side-entry door of defendant’s house violated Fourth Amendment), and other cases and distinguishing State v. Hauser, 342 N.C. 382 (1995), that the seizure of the cigarette butt violated the defendant’s Fourth Amendment rights. The court rejected the State’s argument that the defendant discarded the cigarette butt and thus lost his reasonable expectation of privacy in it. The cigarette butt was not abandoned within the curtilage of the defendant’s home. [Author’s note: The issue of whether the detective had probable cause to seize the cigarette butt was not addressed in this case.]

State v. Rhodes, 151 N.C. App. 208 (2002). The court ruled, distinguishing California v. Greenwood, 486 U.S. 35 (1988), and State v. Hauser, 342 N.C. 382 (1995), that officers’ warrantless search of a trash can located immediately by the steps to the side-entry door of the defendant’s house violated the Fourth Amendment. The court noted that the trash can, located fifty feet from the road, was within the curtilage of the defendant’s home. Unlike the officers in Greenwood and Hauser, the officers in this case did not obtain the trash can’s contents from a sanitation worker who had obtained the trash in the usual manner (that is, the contents of the trash can were not placed there for collection in the usual and routine manner).

State v. Washington, 134 N.C. App. 479 (1999). An officer received information from an unknown informant that a person known only as D was selling drugs. The informant gave a detailed physical description of D and said that he lived in an apartment at 3903-A Marcom Street in Raleigh. The officer began surveillance of the apartment and saw a person matching the informant’s description of D take two white plastic bags, tied with yellow strips, across the apartment’s parking lot to a communal dumpster. Shortly thereafter, the officer removed the bags from the dumpster and discovered drugs inside them. Relying on State v. Hauser, 342 N.C. 382 (1995), the court ruled that the defendant did not have a reasonable expectation of privacy in his garbage after he placed it in the communal apartment dumpster. Therefore, the officer’s removal of the garbage did not violate the defendant’s Fourth Amendment rights.

State v. Johnson, 98 N.C. App. 290 (1990). After officers, during a bus boarding, had spoken with all the bus passengers about which bags belonged to whom, one bag located in the front of the bus had not been claimed. The officers asked each passenger (including the defendant) whether the bag belonged to him or her. No one claimed it. The officers then removed the bag from the bus, searched it, and found cocaine and a traffic citation issued in Tampa, Florida. The officers reboarded the bus and asked the passengers for identification. The defendant was the only passenger with a Tampa address on his driver’s license. The officers requested that the defendant leave the bus, and he did. The officers again asked him if the luggage belonged to him; he denied ownership of the bag. The court ruled that the defendant lost his reasonable expectation of privacy in the bag when he denied that he owned or controlled it. See also United States v. Flowers, 912 F.2d 707 (4th Cir. 1990) (similar ruling); United States v. Lewis, 921 F.2d 1294 (D.C. Cir. 1990) (similar ruling); United States v. Carrasquillo, 877 F.2d 73 (D.C. Cir. 1989) (similar ruling; defendant on train affirmatively disclaimed ownership of garment bag under his feet). The court also rejected the defendant’s argument that the officers needed a search warrant to search the bag. The defendant did not have standing to contest the search of a bag he had abandoned.

State v. Williams, 71 N.C. App. 136 (1984). A confidential informant told detectives that the defendant possessed marijuana. When the detectives approached the defendant in his car, he got out and ran. When a deputy sheriff identified himself and told the defendant to halt, he dropped his jacket and continued to run. The court ruled that the jacket was abandoned under the Fourth Amendment.

State v. Teltser, 61 N.C. App. 290 (1983). After being involved in an automobile accident, the defendant took a suitcase from his car and hid it in woods that were not on his property, planning to get it later. The court ruled that the defendant abandoned the suitcase under the Fourth Amendment.

State v. Casey, 59 N.C. App. 99 (1982). The defendant, who was involved in an airport drug investigation encounter with officers, had a plastic bag and a briefcase in his hands. When asked by the officers, the defendant denied that the items were his. The court ruled that the defendant’s disclaimer of ownership did not constitute abandonment because he had the right to exclude all others from the bag and briefcase when he legitimately possessed and controlled them.

State v. Cromartie, 55 N.C. App. 221 (1973). When an officer stopped the defendant’s car, the defendant got out of the vehicle. The officer then told the defendant that he was going to arrest him, and the defendant threw an aspirin box onto the ground. The court ruled that he abandoned the box under the Fourth Amendment.

State v. Cooke, 54 N.C. App. 33, modified and aff’d, 306 N.C. 132 (1982). A defendant does not abandon property if the defendant discards property as a result of an officer’s illegal conduct. See also United States v. Garzon, 119 F.3d 1446 (10th Cir. 1997) (defendant did not abandon backpacks he had left on a bus when he and other passengers had been illegally ordered by officer to leave bus and take personal possessions with them).

Federal Appellate Courts

United States v. Small, 944 F.3d 490 (4th Cir. 2019). The defendant was convicted in federal district court of charges of carjacking and related offenses. The defendant robbed a victim of a car at gunpoint. That car was located three days later, with the defendant driving it. When officers tried to apprehend the defendant, he led them on a high-speed chase that ended when he crashed the vehicle into the fence at Fort Meade, Maryland. The defendant fled on foot and evaded police throughout the night but was located and arrested in the morning. During the search the night before, officers located items discarded by the defendant, including his cell phone, shirt, and hat. Law enforcement noticed that the cell phone had missed calls from a number identified on the phone as “Sincere my Wife.” An officer called that number back and determined that the defendant was the likely owner of the phone. Later that morning, officers again used the phone to contact “Sincere,” answered one of her calls, and recorded the phone’s serial number. The government later obtained search warrants to obtain (1) the phone’s historical cell-site location data and all of its calls, texts, and Internet history and (2) records on another phone that was in contact with the defendant’s phone on the date of the offenses with which the defendant was charged. The records produced pursuant to those warrants incriminated the defendant and a co-defendant. The defendant moved to suppress the evidence that resulted from the warrantless searches of his phone. The district court denied the motion, finding that the phone had been abandoned. The defendant was convicted at trial, and the Fourth Circuit affirmed the district court’s ruling.

Under Abel v. United States, 362 U.S. 217 (1960), a person has no reasonable expectation of privacy in abandoned property. Property that is merely lost is not abandoned. There must be some voluntary action by a defendant that supports a finding that the defendant renounced his or her interest in the property. The Fourth Circuit stated:

A finding of abandonment is based “not [on] whether all formal property rights have been relinquished, but whether the complaining party retains a reasonable expectation of privacy in the articles alleged to be abandoned.” To determine whether the defendant maintains a reasonable expectation of privacy in an item, the court performs “an objective analysis” which considers the defendant’s actions and intentions. Small, 944 F.3d at 502 (citations omitted).

Here, the defendant left the cell phone in the area where he crashed the car he was driving, along with the vehicle, its contents, his shirt, and his hat. He was actively fleeing police and likely discarded the items to avoid detection. The cell phone was found within fifty feet of the defendant’s bloody shirt. The phone was found in a grassy area, away from “a place where [someone] normally might be,” and this indicated that the defendant intended to discard it. A rational defendant might well decide to abandon the phone, given the potential for cell-phone tracking. While it was possible that the defendant might have lost his phone, it was unlikely under these facts. The court noted that, “while phones occasionally slip out of pockets, shirts do not accidentally fall off their wearers—at the exact same moment as hats—and cars do not ditch themselves after a crash.” Id. at 503. These circumstances amply supported abandonment, and the motion to suppress the cell phone evidence was properly denied.

United States v. Lyles, 910 F.3d 787 (4th Cir. 2018). Maryland police discovered the defendant’s phone number in the contacts of a homicide victim’s phone. Suspecting the defendant’s involvement in the homicide, law enforcement conducted a “trash pull” and searched four bags of the defendant’s garbage after they were placed on the curb. Police found “three unknown type plant stems [which later tested positive for marijuana], three empty packs of rolling papers,” and mail addressed to the residence. Id. at 790. Based on these discoveries, a search warrant for evidence of drug possession, drug distribution, guns, and money laundering was obtained. The warrant authorized the search of the defendant’s home for any drugs; firearms; documents and records of nearly any kind; and various electronic equipment, including cell phones. It also authorized the search of all persons and cars. Guns, ammunition, marijuana, and drug paraphernalia were found, and the defendant was charged with possession of a firearm by a felon. The federal district court suppressed the evidence, finding that the evidence from the garbage search did not establish probable cause that more drugs would be found within the home. The trial judge declined to apply the good-faith exception to the exclusionary rule set out in United States v. Leon, 468 U.S. 897, 918 (1984) (“provid[ing] an exception . . . when ‘officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment’ ”), finding that the warrant here was “plainly overbroad.” The government appealed.

The Fourth Circuit affirmed. It noted that California v. Greenwood, 486 U.S. 35 (1988), allows the warrantless search of curbside garbage. The practice is an important technique for law enforcement, but it is also “subject to abuse” by its very nature—guests may leave garbage at a residence that ends up on the street; evidence can easily be planted in curbside garbage. The court stated:

[T]he open and sundry nature of trash requires that [items found from a trash pull] be viewed with at least modest circumspection. Moreover, it is anything but clear that a scintilla of marijuana residue or hint of marijuana use in a trash can should support a sweeping search of the residence. Lyles, 910 F.3d at 792.

The government argued that the warrant at least supplied probable cause for drug possession and that anything else seen in the course of the execution of the warrant was properly within plain view. In its view, a single marijuana stem would always provide probable cause to search a residence for drugs. The Fourth Circuit disagreed:

The government invites the court to infer from the trash pull evidence that additional drugs probably would have been found in [the defendant’s] home. Well perhaps, but not probably. . . . This was a single trash pull, and thus less likely to reveal evidence of recurrent or ongoing activity. And from that one trash pull, as defendant argues, “the tiny quantity of discarded residue gives no indication of how long ago marijuana may have been consumed in the home.” This case is almost singular in the sparseness of evidence pulled in one instance from the trash itself and the absence of other evidence to corroborate even that. Id. at 794.

The court therefore found that the magistrate lacked a substantial basis on which to find probable cause and unanimously reversed. The opinion also noted the breadth of the search. The warrant was “astoundingly broad”—it authorized the search of items “wholly disconnected from marijuana possession.” Id. at 795, 794. This was akin to a general warrant and unreasonable for such a “relatively minor” offense. Id. at 795.

The court also rejected the application of the Leon good-faith exception to save the warrant, despite the fact that the warrant application was reviewed by the officer’s superior and a prosecutor. “The prosecutor’s and supervisor’s review, while unquestionably helpful, ‘cannot be regarded as dispositive’ of the good faith inquiry. If it were, police departments might be tempted to immunize warrants through perfunctory superior review . . .” Id. at 796 (internal quotation marks, citations omitted). Concluding, the court stated: “What we have before us is a flimsy trash pull that produced scant evidence of a marginal offense but that nonetheless served to justify the indiscriminate rummaging through a household. Law enforcement can do better.” Id. at 797.

United States v. Sanders, 196 F.3d 910 (8th Cir. 1999). A defendant’s disclaimer of ownership of a bag and a ball of tape constituted abandonment of that property, even if an officer believed the defendant was lying.

United States v. Long, 176 F.3d 1304 (10th Cir. 1999). The defendant placed his garbage bags on top of a trailer for pickup by the garbage collector. The trailer was parked only three feet from a public alleyway. The court ruled that, even if the garbage bags were within the curtilage, the defendant did not have a reasonable expectation of privacy to contest law enforcement officers’ taking the bags. The defendant’s placement of the bags exposed them not just to the garbage collector but also to anyone traveling down the alleyway.

United States v. Shanks, 97 F.3d 977 (7th Cir. 1996). After receiving an anonymous tip that someone was selling drugs from a residence on the upper floor of a two-story duplex condominium, officers attempted to corroborate the tip by looking for evidence of drug activity in garbage containers located next to a garage that was approximately twenty feet away from the residence. The garbage containers were located on a narrow strip of land occupying the space between the garage and an alley. The officers confiscated the containers in the early hours of the morning and replaced them with identical containers so that no one would notice. They found drug items in opaque bags located in the containers and obtained a search warrant of the defendant’s residence based on this information. The court ruled that the containers were not within the curtilage of the residence because they were located adjacent to the alley. The court also ruled that, even assuming that the containers were within the curtilage, the defendant did not have a reasonable expectation of privacy in them. The containers were readily accessible to and visible from a public thoroughfare (the alley), and scavengers commonly snoop through garbage containers found in such alleys. The court also ruled that the defendant did not have a reasonable expectation of privacy merely because officers, rather than the regular garbage service, rummaged through his garbage or because his garbage was hidden in opaque bags.

United States v. Leshuk, 65 F.3d 1105 (4th Cir. 1995). The defendant’s disclaimer of ownership of a garbage bag and backpacks located near him was a voluntary abandonment of the property. Thus, he was precluded from seeking to suppress evidence found in them.

United States v. Boone, 62 F.3d 323 (10th Cir. 1995). After officers conducted an illegal search of a vehicle and discovered marijuana, the defendant got into the vehicle and a high-speed chase occurred. During the chase, the defendant threw illegal drugs from the vehicle. The court ruled that the defendant abandoned the drugs. Although abandonment of evidence resulting from officers’ illegal conduct will not guarantee the admissibility of that evidence, here, the defendant’s independent and voluntary decision to throw the illegal drugs from the vehicle during the high-speed chase was sufficient intervening conduct to remove the taint from the prior illegal search of the vehicle. The court affirmed the lower court’s denial of the defendant’s suppression motion.

United States v. Washington, 12 F.3d 1128 (D.C. Cir. 1994). Officers in a patrol car were involved in a high-speed chase of a car in which the defendant and others were passengers. The car crashed, and the defendant and the passengers fled the car. The court ruled that the car was abandoned under the Fourth Amendment.

United States v. Scott, 975 F.2d 927 (1st Cir. 1992). The defendant did not have a reasonable expectation of privacy in shredded documents placed in garbage bags and left for collection in front of his house.

United States v. Hedrick, 922 F.2d 396 (7th Cir. 1991). The defendant did not have a reasonable expectation of privacy in garbage cans permanently located in a driveway eighteen to twenty feet from the sidewalk, twenty feet from an unattached garage, and fifty feet from the defendant’s house, even though the cans were within the curtilage. The cans were so readily accessible to the public that they were exposed to the public. See also United States v. Redmon, 138 F.3d 1109 (7th Cir. 1998) (en banc) (similar ruling; garbage cans placed for collection outside garage door where they were publicly accessible); United States v. Wilkinson, 926 F.2d 22 (1st Cir. 1991) (proper to search trash left for collection on lawn near curb); United States v. Comeaux, 955 F.2d 586 (8th Cir. 1992) (search of garbage can in alley near garage was proper, even if within curtilage).

United States v. Dunkel, 900 F.2d 105 (7th Cir. 1990). The defendant did not have a reasonable expectation of privacy in a dumpster, located in the parking lot of a commercial building, that was used by tenants of the building and was accessible to the public.

United States v. Thomas, 864 F.2d 843 (D.C. Cir. 1989). The court ruled that the defendant abandoned his gym bag when, after seeing police officers, he went into an apartment building and up a stairway to the second floor, left the bag there, and went down the stairway to go outside. The court noted that this case was similar to a case in which a person, during lawful police pursuit, tosses away an object to prevent its discovery. See also United States v. Wider, 951 F.2d 1283 (D.C. Cir. 1991) (defendant abandoned paper bag by placing it on steps in public place and walking away).

United States v. Sanders, 719 F.2d 882 (6th Cir. 1983). The act of leaving an airport without claiming one’s luggage does not in and of itself constitute abandonment. The defendant here never affirmatively disclaimed ownership of a suitcase, consistently refused to consent to a search of the suitcase, and told officers that she had not claimed the suitcase at the airport because she was not going straight home. Compare with United States v. Tolbert, 692 F.2d 1041 (6th Cir. 1982) (defendant abandoned a suitcase when she left the airport without it and specifically disclaimed ownership); United States v. Moskowitz, 883 F.2d 1142 (2d Cir. 1989) (airplane passenger abandoned luggage when he told officers that he did not have any checked luggage; fact that an officer did not believe defendant’s denial is irrelevant to determining abandonment, which focuses on defendant’s intent).

United States v. Kramer, 711 F.2d 789 (7th Cir. 1983). Garbage in plastic trash bags placed inside covered garbage containers was located inside a perimeter fence along the street curb thirty feet from a house and was to be collected by a private garbage-removal service. Police picked up the trash bags, took them to the police station, and searched their contents. The court ruled that (1) the garbage was abandoned under the Fourth Amendment and (2) the alleged police trespass on the property to obtain the garbage did not violate a reasonable expectation of privacy under the Fourth Amendment. For similar cases, see United States v. Terry, 702 F.2d 299 (2d Cir. 1983); United States v. Compton, 704 F.2d 739 (5th Cir. 1983); United States v. Dela Espriella, 781 F.2d 1432 (9th Cir. 1986).

Areas outside the Home: Curtilage and Open Fields

(This topic is discussed in the chapter text under “Areas outside the Home: Curtilage and Open Fields.”)

United States Supreme Court

Collins v. Virginia, 584 U.S. 586 (2018). In the course of deciding whether an officer’s warrantless search of a motorcycle parked in the driveway of a home was justified under the automobile exception to the Fourth Amendment’s warrant requirement, the Court considered whether the motorcycle was parked within the curtilage of the dwelling. It ruled that it was. The motorcycle was parked at the end of the driveway, which terminated next to the house. The parking area was “enclosed on two sides by a brick wall about the height of a car and on a third side by the house. A side door provide[d] direct access between this partially enclosed section of the driveway and the house. A visitor endeavoring to reach the front door of the house would have to walk partway up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch.” Id. at 593. On these facts, the Court had no difficulty concluding that the motorcycle was parked within the curtilage.

Florida v. Jardines, 569 U.S. 1 (2013). The Court ruled that officers’ use of a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home was a “search” within the meaning of the Fourth Amendment. The Court’s reasoning was based on the theory that the officers engaged in a physical intrusion of a constitutionally protected area. Applying that principle, the Court ruled:

The officers were gathering information in an area belonging to [the defendant] and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner. Id. at 5–6.

The Court did not decide the case on a reasonable-expectation-of-privacy analysis. The concurring opinion concluded that the conduct was a search based on both property and reasonable-expectation-of-privacy grounds.

Florida v. White, 526 U.S. 559 (1999). Officers developed probable cause to believe that the defendant’s car was subject to forfeiture under Florida’s drug forfeiture law, but they did not immediately arrest the defendant or seize his car. Several months later, officers arrested the defendant for unrelated charges and, without a search warrant, seized his car from his employer’s parking lot; the car was seized for forfeiture, based on the probable cause that had existed months earlier. The court ruled, relying on G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977), and other cases, that the officers’ warrantless seizure of the defendant’s car in a public place did not violate the Fourth Amendment. [Author’s note: G.S. 90-112(b) provides that property subject to forfeiture may be seized by a law enforcement officer with court process, except that it may be seized without court process when (1) the seizure is incident to an arrest or search with a search warrant or (2) the property subject to seizure has been the subject of a prior judgment in the State’s favor.]

Florida v. Riley, 488 U.S. 445 (1989). The defendant lived in a mobile home located on five acres of rural property. His greenhouse was located ten to twenty feet behind the mobile home (within its curtilage). Two roofing panels on the greenhouse were missing. An officer, circling twice over the defendant’s property in a helicopter at 400 feet, saw with his unaided eye what appeared to be marijuana growing in the greenhouse. He then obtained a search warrant and seized the marijuana. A four-Justice plurality opinion ruled, relying on California v. Ciraolo, 476 U.S. 207 (1986), discussed below, that the defendant did not have a reasonable expectation of privacy from observations from the helicopter because it was flying in lawful navigable airspace. A fifth Justice’s concurring opinion set out a different standard: a defendant does not have a reasonable expectation of privacy if a helicopter is in public airspace at an altitude at which the public travels with sufficient regularity. The defendant has the burden of proving that the aerial observation was unreasonable, and he failed to do so in this case.

United States v. Dunn, 480 U.S. 294 (1987). The Court adopted a four-part test to determine whether property is within a home’s curtilage that looks at the following factors: (1) the proximity of the area to the home, (2) whether the area is within an enclosure surrounding the home, (3) the nature and use to which the area is put, and (4) the steps taken by the resident to protect the area from observations by passersby. The Court stated that these factors are useful analytical tools in determining whether the area in question is so intimately tied to the home itself that it should be placed under the home’s Fourth Amendment protection.

Applying these factors, the Court ruled that a barn sixty yards from a home was not within the home’s curtilage. The Court noted that the barn was fifty yards from the fence surrounding the house. The barn stood out as a distinct part of the defendant’s ranch, quite separate from the house. Officers possessed objective information (a strong smell from the barn of phenylacetic acid, which is used in making illegal drugs) that the barn was not being used for intimate activities of the home. And the defendant did little to protect the barn area from observations by those standing in open fields—other interior fences on the defendant’s property were designed and constructed to corral livestock, not to prevent people from observing the enclosed area. (The officers crossed over five fences—not including the fence surrounding the house—before they got to the barn.)

The Court—assuming without deciding that although the barn was not within the curtilage, it was entitled to Fourth Amendment protection and could not be entered without a warrant—ruled that the officers did not violate the defendant’s Fourth Amendment rights when they stood next to the barn’s locked front gates, shined a flashlight through the opaque netting above the gates (without entering the barn), and looked into the barn. (The officers left, obtained a search warrant, and then searched the barn with the warrant.) See also United States v. Pace, 955 F.2d 270 (5th Cir. 1992) (there is no curtilage surrounding a barn in an open field; officers may walk up to edge of structure).

Dow Chemical Co. v. United States, 476 U.S. 227 (1986). Surveillance and photographing by the Environmental Protection Agency (EPA) from an airplane flying in lawful navigable airspace over the buildings and grounds of an enclosed manufacturing plant complex was not a search under the Fourth Amendment. The open areas of the complex (with buildings spread over 2,000 acres) were not analogous to the curtilage of a dwelling for the purpose of aerial surveillance; the complex was more comparable to an open field. The Court noted that the EPA used a conventional commercial camera commonly used in mapmaking. Although the photographs provided more detailed information than a person could see unaided from the airplane, they did not reveal intimate details that might infringe on Fourth Amendment rights.

California v. Ciraolo, 476 U.S. 207 (1986). Officers received an anonymous tip that the defendant was growing marijuana in his backyard, which was within the curtilage of his home. They were unable to see the marijuana from ground level because a tall fence surrounded the yard, with the home providing one side of the perimeter. They flew over the house in a private plane at 1,000 feet—which was within lawful navigable airspace—and readily saw and identified (without any visual device) marijuana plants growing in the yard. They then obtained a search warrant and seized the marijuana. The Court ruled that, although the defendant may have had a subjective expectation of privacy in the area within his yard, his expectation of privacy from all observations was unreasonable under the Fourth Amendment; such an expectation was not one that society was prepared to honor. Thus, the officers’ visual observation from the airplane was not a search under the Fourth Amendment. The Court noted that it did not decide in this case whether a search from an airplane may occur if officers use technological devices (sophisticated cameras and the like) that disclose intimate activities within the curtilage that could not be seen by unaided visual observation.

Oliver v. United States, 466 U.S. 170 (1984). A person has no reasonable expectation of privacy in land beyond the curtilage of his or her home, and therefore an officer’s presence there is not a search under the Fourth Amendment. Even if land outside the curtilage is fenced and posted with “No Trespassing” signs, an officer’s entry onto and presence on the land (even though the officer may be committing a criminal trespass) is not a Fourth Amendment violation. The Court reaffirmed Hester v. United States, 265 U.S. 57 (1924). See also United States v. Lewis, 240 F.3d 866 (10th Cir. 2001) (similar ruling); United States v. Rapanos, 115 F.3d 367 (6th Cir. 1997) (similar ruling).

G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). No search warrant was required to seize cars (with probable cause) to satisfy a tax assessment, because the cars were located on public streets, parking lots, and other open places where there was no intrusion on privacy—that is, officers did not conduct a search before they seized the cars without a warrant.

Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861 (1974). A state inspector conducted a pollution test of a factory’s smoke emissions while standing on the company’s property—but not on property from which the public was excluded. The Court ruled that the Fourth Amendment was not violated because the area was within the “open fields” exception.

North Carolina Supreme Court

State v. Grice, 367 N.C. 753 (2015). (1) Reversing the court of appeals, 223 N.C. App. 460 (2012), the state supreme court ruled that officers did not violate the Fourth Amendment by seizing marijuana plants seen in plain view. After receiving a tip that the defendant was growing marijuana at a specified residence, officers went to the residence to conduct a knock and talk. Finding the front door inaccessible, covered with plastic, and obscured by furniture, the officers noticed that the driveway led to a side door, which appeared to be the main entrance. One of the officers knocked on the side door. No one answered. From the door, the officer noticed plants growing in several buckets about fifteen yards away. Both officers recognized the plants as marijuana. The officers seized the plants, returned to the sheriff’s office, and got a search warrant to search the home. The defendant was charged with manufacturing a controlled substance and moved to suppress evidence of the marijuana plants. The trial court denied the motion and the court of appeals reversed. The supreme court began by finding that the officers observed the plants in plain view. It then explained that a warrantless seizure may be justified as reasonable under the plain-view doctrine if the officer did not violate the Fourth Amendment in arriving at the place from where the evidence could be plainly viewed, the evidence’s incriminating character was immediately apparent, and the officer had a lawful right of access to the object itself. Additionally, the court noted, “[t]he North Carolina General Assembly has . . . required that the discovery of evidence in plain view be inadvertent.” Id. at 757. The court noted that the sole point of contention in this case was whether the officers had a lawful right of access from the driveway fifteen yards across the defendant’s property to the plants’ location. Finding against the defendant on this issue, the court stated: “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.” Id. at 758. The court rejected the defendant’s argument that the seizure was unlawful because the plants were on the curtilage of his property, stating:

[W]e 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. 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 curtilage to seize contraband in plain view within the curtilage did not violate the Fourth Amendment. Id. at 760–61 (footnote, citations omitted).

(2) The court ruled that the seizure also was justified by exigent circumstances, concluding: “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’ presence, and that the individual could easily have moved or destroyed the plants if they were left on the property.” Id. at 764.

State v. Hauser, 342 N.C. 382 (1995). A detective made arrangements with the city sanitation department to collect trash at the defendant’s residence and give it to two detectives. A sanitation worker collected the garbage left at the back of the residence for collection. The collection was routine except that the sanitation worker prevented the garbage from commingling with other garbage by depositing the defendant’s garbage into a container in the back of a garbage truck instead of into the truck’s collection bin. The sanitation worker gave the defendant’s garbage to the detectives, who found cocaine residue in it. One of the detectives then obtained a search warrant based on the cocaine found in the garbage and information received from four informants. One of the informants stated that the defendant had sold him cocaine at the defendant’s residence. In addition, the officers provided facts showing the reliability of the informants’ information. The officers executed the search warrant, and more than a pound of cocaine was found in the defendant’s residence.

The court, disavowing a contrary conclusion in the court of appeals opinion in this case, 115 N.C. App. 431 (1994), ruled that the search of the defendant’s garbage did not violate the Fourth Amendment based on the ruling in California v. Greenwood, 486 U.S. 35 (1988) (no reasonable expectation of privacy under Fourth Amendment in garbage left for collection). The defendant sought to distinguish the Greenwood ruling by noting that the garbage was left at the curb in Greenwood while the garbage in this case was left for collection within the curtilage of the home, the defendant’s backyard. The court rejected the defendant’s argument, relying on United States v. Hedrick, 922 F.2d 396 (7th Cir. 1991) (no Fourth Amendment violation when officers seized garbage placed for collection eighteen to twenty feet within home’s curtilage; garbage was placed in view of public passing by on sidewalk, distance between garbage and sidewalk was short, and there was no fence or other barrier preventing public access to garbage). The North Carolina Supreme Court stated that the location of the defendant’s garbage within the home’s curtilage did not automatically establish that he possessed a reasonable expectation of privacy in the garbage. Relying on the ruling in United States v. Biondich, 652 F.2d 743 (8th Cir. 1981) (no Fourth Amendment violation when officer arranged with regular trash-collection service to deliver defendant’s garbage to officer, even though there may be an expectation of privacy in garbage while it remains within the curtilage), and distinguishing United States v. Certain Real Property Located at 987 Fisher Road, 719 F. Supp. 1396 (E.D. Mich. 1989) (Fourth Amendment was violated when police went onto defendant’s property and seized garbage bags placed against back wall of house), the court ruled that, based on the facts in this case, the defendant did not retain a reasonable expectation of privacy in his garbage once it left his yard in the usual manner. The court also ruled that, even assuming that the search of the defendant’s garbage violated the Fourth Amendment, the information supplied by the informants provided a substantial basis for probable cause to support the search warrant for the defendant’s house. See also United States v. Shanks, 97 F.3d 977 (7th Cir. 1996), discussed above under “Abandoned Property and Garbage,” “FEDERAL APPELLATE COURTS.”

State v. Tarantino, 322 N.C. 386 (1988). Distinguishing United States v. Dunn, 480 U.S. 294 (1987), discussed above under “Areas outside the Home: Curtilage and Open Fields,” “UNITED STATES SUPREME COURT,” the court ruled that the defendant had a reasonable expectation of privacy in a boarded-up store building and that an officer’s peering through a quarter-inch crack in the building’s rear wall after entering the enclosed porch there violated the defendant’s Fourth Amendment rights. See also Siebert v. Severino, 256 F.3d 648 (7th Cir. 2001) (warrantless search of barn with enclosed doors located outside dwelling’s curtilage violated Fourth Amendment). But see United States v. Pace, 955 F.2d 270 (5th Cir. 1992) (no search occurred when officers pressed their faces against small opening in barn to see inside); United States v. Elkins, 300 F.3d 638 (6th Cir. 2002) (similar ruling); United States v. Taylor, 90 F.3d 903 (4th Cir. 1996) (officers’ observation through open blinds while standing at front door did not violate Fourth Amendment); United States v. Fields, 113 F.3d 313 (2d Cir. 1997) (officers’ observation through window in which there was five- to six-inch gap plainly visible below blinds, made from side yard of multi-occupant apartment building, did not violate Fourth Amendment).

State v. Boone, 293 N.C. 702 (1977). An open shed and a barn to which it was attached were the only structures within a fenced-in area that was 1.5 miles from the defendant’s home. The defendant did not have a reasonable expectation of privacy in that area, and an officer did not violate the defendant’s Fourth Amendment rights when he entered the area, looked into the open shed, and obtained the serial number of a stolen tractor inside.

North Carolina Court of Appeals

State v. Ellis, 266 N.C. App. 115 (2019). After discovering stolen property at a home across the street, two officers approached the front door of the defendant’s residence after being informed by a witness that the person who stole the property was at the residence. One of the officers knocked on the front door but no one answered. He observed a large spiderweb in the door frame. After knocking for several minutes, the officer observed a window curtain inside the home move. The other officer went to the back of the home. No one answered that officer’s knock at the back door either, despite the fact that he knocked for several minutes. He then left the back door and approached the left front corner of the home, where he smelled marijuana. The other officer confirmed the smell, and both officers observed a fan loudly blowing from the crawl-space area of the home. The odor of marijuana was emanating from the fan, and one of the officers looked between the fan slats, where he observed marijuana plants. A search warrant was obtained on this basis, and the defendant was charged with trafficking marijuana and other drug offenses.

The trial court denied the defendant’s motion to suppress evidence obtained from the search, finding that the smell and sight of the marijuana plants were in plain view. The court of appeals reversed. Florida v. Jardines, 569 U.S. 1 (2013), recognizes the importance of the home in the Fourth Amendment context and limits the authority of officers conducting a knock and talk. Jardines found that a search had occurred when officers conducting a knock and talk used a drug-sniffing dog on the suspect’s front porch and that such action exceeded the permissible boundaries of a knock and talk. Even though no police dog was present here, the court of appeals, citing Jardines, found that “[t]he detectives were not permitted to roam the property searching for something or someone after attempting a failed ‘knock and talk.’ Without a warrant, they could only ‘approach the home by the front path, knock promptly, and then (absent invitation to linger longer) leave.’ ” Ellis, 266 N.C. App. at 120–21 (citations to Jardines omitted). North Carolina applies the Jardines home protections to the curtilage of the property, and the officers here exceeded their authority by moving about the curtilage without a warrant. Once the knocks at the front door went unanswered, the officers should have left. The court discounted the State’s argument that the lack of a “no trespassing” sign on the defendant’s property meant that the officers could be present in and around the yard of the home. In the words of the court:

While the evidence of a posted no trespassing sign may be evidence of a lack of consent, nothing . . . supports the State’s attempted expansion of the argument that the lack of such a sign is tantamount to an invitation for someone to enter and linger in the curtilage of the residence. Id. at 123.

Because the officers here only smelled the marijuana after leaving the front porch and lingering in the curtilage, they were not in a position in which they could be lawfully, and the plain-view exception to the Fourth Amendment did not apply. Even if the officers were lawfully present in the yard, the defendant had a reasonable expectation of privacy in his crawl-space area, and the officers violated that by looking through the fan slats.

State v. Piland, 263 N.C. App. 323 (2018). In this drug case, the court ruled that the trial court did not err by denying the defendant’s motion to suppress. After receiving a tip that the defendant was growing marijuana at his home, three officers drove there for a knock and talk. They pulled into the driveway and parked in front of the defendant’s car, which was parked at the far end of the driveway, beside the home. The garage was located immediately to the left of the driveway. One officer went to the front door to knock, while the other two remained by the garage. A strong odor of marijuana was coming from the garage area. On the defendant’s front door was a sign reading “inquiries” and listing his phone number and a second sign reading “warning” and citing several statutes. As soon as the defendant opened the front door, the knocking officer smelled marijuana. The officer decided to “maintain the residence pending the issuance of a search warrant.” Id. at 326. After the warrant was obtained, a search revealed drugs and drug paraphernalia.

The court began by rejecting the defendant’s argument that the officers engaged in an unconstitutional search and seizure by being present in his driveway and lingering by his garage. Officers conducting a knock and talk can lawfully approach a home so long as they remain within the permissible scope afforded by the knock and talk. Here, given the configuration of the property, any private citizen wishing to knock on the defendant’s front door would drive into the driveway, get out, walk between the car and the path so as to stand next to the garage, and continue on the path to the front porch. Therefore, the officers’ conduct, in pulling into the driveway by the garage, getting out of their car, and standing between the car and the garage, was permitted. Additionally, the officers were allowed to linger by the garage while their colleague approached the front door. Thus, “the officers’ lingering by the garage was justified and did not constitute a search under the Fourth Amendment.” Id. at 333.

The court then ruled that by failing to raise the issue at the trial level, the defendant failed to preserve his argument that he revoked the officers’ implied license to approach his door through his signage and that by ignoring this written revocation, the officers violated the Fourth Amendment.

State v. Degraphenreed, 261 N.C. App. 235 (2018). The court ruled that a car parked on the side of a public street opposite to the defendant’s residence and outside the confines of the fence surrounding the residence was not within the residence’s curtilage.

State v. Stanley, 259 N.C. App. 708 (2018). The knock and talk conducted by officers in this drug case violated the Fourth Amendment. After a confidential informant notified officers that he had purchased heroin from a person at an apartment, officers conducted three controlled drug buys at the apartment. On all three occasions the purchases were made at the back door of the apartment from an individual named Meager, who did not live there. Officers then obtained a warrant for Meager’s arrest and approached the apartment to serve him. Upon arrival, they immediately walked down the driveway that led to the back of the apartment and knocked on the door. Events then transpired which led to, among other things, a pat-down of the defendant and the discovery of controlled substances on the defendant’s person. The defendant was arrested and charged with drug offenses. He filed a motion to suppress evidence obtained as a result of the officers’ knock and talk. When it was denied, he pled guilty, reserving his right to appeal. On appeal, the court agreed that the knock and talk was unlawful. It held that “to pass constitutional muster, the officers were required to conduct the knock and talk by going to the front door, which they did not do. Rather than using the paved walkway that led directly to the unobstructed front door of the apartment, [they] walked along a gravel driveway into the backyard . . . to knock on the back door, which was not visible from the street. . . . [This] was . . . unreasonable.” Id. at 717. The court rejected the trial court’s determination that the officers had an implied license to approach the back door because the confidential informant had purchased drugs there. The court stated that “the fact that the resident of a home may choose to allow certain individuals to use a back or side door does not mean that similar permission is deemed to have been given generally to members of the public.” Id. The court recognized that “unusual circumstances in some cases may allow officers to lawfully approach a door of the residence other than the front door in order to conduct a knock and talk.” Id. However, no such unusual circumstances were presented in this case.

State v. Huddy, 253 N.C. App. 148 (2017). The court ruled that an officer violated the defendant’s Fourth Amendment rights by searching the curtilage of his home without a warrant. The officer saw a vehicle with its doors open at the back of a 150-yard driveway leading to the defendant’s home. Concerned that the vehicle might be part of a break-in or home invasion, the officer drove down the driveway, ran the vehicle’s tags, checked—but did not knock—on the front door, checked the windows and doors of the home for signs of forced entry, “cleared” the sides of the house, and then went through a closed gate in a chain-link fence enclosing the home’s backyard and approached the storm door at the back of the house. As the officer approached the door, which was not visible from the street, he smelled marijuana, which led to the defendant’s arrest for drug charges. The State relied on two exceptions to the warrant requirement in attempting to justify the officer’s search of the curtilage: the knock-and-talk doctrine (under which law enforcement can do whatever a home’s residents permit anyone else to do, i.e., walk up the home’s front path, knock on the front door, wait for an answer, and leave if there is no answer) and the community-caretaking doctrine (which permits law enforcement to take action in certain situations to protect the public even when they lack the suspicion required by the constitution to do so). The court found, however, that neither exception applied. First, the officer did more than merely knock and talk. Specifically, he ran a license plate not visible from the street, walked around the house examining windows and searching for signs of a break-in, and went to a rear door not visible from the street and located behind a closed gate. Likewise, the court ruled that the community-caretaking doctrine did not support the officer’s actions: “The presence of a vehicle in one’s driveway with its doors open is not the sort of emergency that justifies the community caretaker exception.” Id. at 149. The court also noted that because the Fourth Amendment’s protections “are at their very strongest within one’s home,” the public need justifying the community-caretaking exception “must be particularly strong to justify a warrantless search of a home.” Id. at 154.

State v. Kirkman, 251 N.C. App. 274 (2016). In this drug case, the court ruled that an officer lawfully approached the front of the defendant’s home and obtained information later used to procure a search warrant. Specifically, he heard a generator and noticed condensation and mold, factors that in his experience and training were consistent with the indoor cultivation of marijuana. The court stated that it is well-established that a law enforcement officer is permitted to approach a home’s front door and that, if the officer is able to observe from that position conditions indicating illegal activity, it is “completely proper” to act upon information resulting from that observation.

State v. Smith, 246 N.C. App. 170 (2016). The court ruled that no Fourth Amendment violation occurred when officers entered the defendant’s driveway to investigate a shooting. When detectives arrived at the defendant’s property, they found the gate to his driveway open. The officers did not recall observing a “no trespassing” sign that had been reported the previous day. After a backup deputy arrived, the officers drove both of their vehicles through the open gate and up the defendant’s driveway. Once the officers parked, the defendant came out of the house and spoke with the detectives. The defendant denied any knowledge of a shooting and denied owning a rifle. However, the defendant’s wife told the officers that there was a rifle inside the residence. The defendant gave verbal consent to search the home. In the course of the officers’ obtaining that consent, the defendant made incriminating statements. A search of the home found a rifle and shotgun. The rifle was seized, but the defendant was not arrested. After leaving and learning that the defendant had a prior felony conviction from Texas, the officers obtained a search warrant to retrieve the other gun seen in his home and a warrant for the defendant’s arrest. When officers returned to the defendant’s residence, the driveway gate was closed and a sign on the gate warned, “Trespassers will be shot exclamation!!! Survivors will be shot again!!!” The team entered and found multiple weapons on the premises.

At trial the defendant unsuccessfully moved to suppress all evidence obtained during the detectives’ first visit to the property and all evidence procured by the search warrant the following day. He pled guilty and appealed. The court rejected the defendant’s argument that a “no trespassing” sign on his gate expressly removed an implied license to approach his home. While the trial court found that a no trespassing sign was posted on the day of the shooting, there was no evidence that the sign was present on the day the officers first visited the property. Also, there was no evidence that the defendant took consistent steps to physically prevent visitors from entering the property; the open gate suggested otherwise. Finally, the defendant’s conduct upon the detectives’ arrival belied any notion that their approach was unwelcome. Specifically, when they arrived, he came out and greeted them. For these reasons, the defendant’s actions did not reflect a clear demonstration of an intent to revoke the implied license to approach. The court ruled that the officers’ actions did not exceed the scope of a lawful knock and talk. Finally, it rejected the defendant’s argument that his Fourth Amendment rights were violated because the encounter occurred within the home’s curtilage. The court noted that no search of the curtilage occurs when an officer is in a place where the public is allowed to be for purposes of a general inquiry. Here, officers entered the property through an open driveway and did not deviate from the area where their presence was lawful.

State v. Williford, 239 N.C. App. 123 (2015). The court ruled that the trial court did not err by denying the defendant’s motion to suppress DNA evidence obtained from his discarded cigarette butt. When the defendant refused to supply a DNA sample in connection with a rape and murder investigation, officers sought to obtain his DNA by other means. After the defendant discarded a cigarette butt in a parking lot, officers retrieved it. The parking lot was located directly in front of the defendant’s four-unit apartment building, was uncovered, and included five to seven unassigned parking spaces used by the residents. The area between the road and the parking lot was heavily wooded, but no gate restricted access to the lot and no signs suggested either that access to the parking lot was restricted or that the lot was private. After DNA on the cigarette butt matched DNA found on the victim, the defendant was charged with the crimes. At trial, the defendant unsuccessfully moved to suppress the DNA evidence. On appeal, the court rejected the defendant’s argument that the seizure of the cigarette butt violated his constitutional rights because it occurred within the curtilage of his apartment:

[W]e conclude that the parking lot was not located in the curtilage of defendant’s building. While the parking lot was in close proximity to the building, it was not enclosed, was used for parking by both the buildings’ residents and the general public, and was only protected in a limited way. Consequently, the parking lot was not a location where defendant possessed “a reasonable and legitimate expectation of privacy that society is prepared to accept.” Id. at 128 (citations omitted).

Next, the court rejected the defendant’s argument that even if the parking lot was not considered curtilage, he still maintained a possessory interest in the cigarette butt because he did not put it in a trash can or otherwise convey it to a third party. The court reasoned that the cigarette butt was abandoned property. Finally, the court rejected the defendant’s argument that even if officers lawfully obtained the cigarette butt, they still were required to obtain a warrant before testing it for his DNA because he had a legitimate expectation of privacy in his DNA. The court reasoned that the extraction of DNA from an abandoned item does not implicate the Fourth Amendment.

State v. Gentile, 237 N.C. App. 304 (2014). The court ruled that a search of the defendant’s garage pursuant to a search warrant violated the Fourth Amendment. Following up on a tip that the defendant was growing marijuana on his property, officers went to his residence. They knocked on the front door but received no response. They then went to the back of the house because they heard barking dogs and thought that an occupant might not have heard them knock. Once there they smelled marijuana coming from the garage, and this discovery formed the basis for the search warrant. The court concluded that “the sound of barking dogs, alone, was not sufficient to support the detectives’ decision to enter the curtilage of defendant’s property by walking into the back yard of the home and the area on the driveway within ten feet of the garage.” Id. at 310. The court concluded that when the detectives smelled the odor of marijuana, “their purported general inquiry about the information received from the anonymous tip was in fact a trespassory invasion of defendant’s curtilage, and they had no legal right to be in that location.” Id. The subsequent search—based, in part, on the odor of marijuana—violated the Fourth Amendment.

State v. Borders, 236 N.C. App. 149 (2014). In this rape and murder case, the court ruled that the Fourth Amendment was not violated when an officer seized a cigarette butt containing the defendant’s DNA. The defendant, a suspect in a murder case, refused four requests by the police to provide a DNA sample. Acting with the primary purpose of obtaining a sample of the defendant’s DNA to compare to DNA from the victim’s rape kit, officers went to his residence to execute an unrelated arrest warrant. After the defendant was handcuffed and taken outside to the driveway, an officer asked him if he wanted to smoke a cigarette. The defendant said yes, and after he took several drags from the cigarette, the officer asked if he could take the cigarette to throw it away for the defendant. The defendant said yes, but instead of throwing away the cigarette, the officer extinguished it and placed it in an evidence bag. The DNA on the cigarette butt came back as a match to the rape-kit DNA. The court acknowledged that if the defendant had discarded the cigarette himself within the curtilage of the premises, the officers could not have seized it. However, the defendant voluntarily accepted the officer’s offer to throw away the cigarette butt, the court noted, rejecting the defendant’s argument that he had a reasonable expectation of privacy in the cigarette butt. When the defendant, while under arrest and handcuffed, placed the cigarette butt in the officer’s gloved hand—instead of on the ground or in some other object within the curtilage—the defendant relinquished possession of the butt and any reasonable expectation of privacy in it. Finally, although indicating that it was “troubled” by the officers’ trickery, the court concluded that the officers’ actions did not require suppression of the DNA evidence. The court reasoned that because “the police did not commit an illegal act in effectuating the valid arrest warrant and because the subjective motives of police do not affect the validity of serving the underlying arrest warrant,” suppression was not required. Id. at 169.

State v. Pasour, 223 N.C. App. 175 (2012). The court of appeals ruled that the trial court erred by denying the defendant’s motion to suppress property seized in a warrantless search. After receiving a tip that a person living at a specified address was growing marijuana, officers went to the address and knocked on the front and side doors. After getting no answer, two officers went to the back of the residence. In the backyard they found and seized marijuana plants. The officers were within the curtilage when they viewed the plants, there was no evidence indicating that the plants were visible from the front of the house or from the road, and a “no trespassing” sign was plainly visible on the side of the house. Even if the officers did not see the sign, it was evidence of the homeowner’s intent that the side and back of the home were not open to the public. There was no evidence of a path or anything else to suggest a visitor’s use of the rear door. Instead, all visitor traffic appeared to be kept to the front door, and traffic to the rear was discouraged by the posted sign. Further, there was no evidence indicating that the officers had reason to believe that knocking at the back door would produce a response after knocking multiple times at the front and side doors had not. The court concluded that on these facts, “there was no justification for the officers to enter [d]efendant’s backyard and so their actions were violative of the Fourth Amendment.” Id. at 180.

State v. Ballance, 218 N.C. App. 202 (2012). The court of appeals ruled that the trial court did not err by rejecting the defendant’s motion to suppress evidence obtained by officers when they entered the property in question. The court concluded that the property constituted an “open field,” so that the investigating officers’ entry onto the property and the observations made there did not constitute a “search” for Fourth Amendment purposes. The property consisted of 119 acres of wooded land used for hunting and did not contain any buildings or residences.

State v. Nance, 149 N.C. App. 734 (2002). The defendant leased barns and paddocks for her horses. Animal control officers received a telephone call on December 18, 1998, that the horses were being treated cruelly. That same day, they viewed the horses from a road. The horses were located in open, accessible areas on the defendant’s leased property. They were emaciated and appeared to be starving. On December 21, 1998, the officers entered the property and seized the horses without a search warrant. The court noted that although the officers did not violate the Fourth Amendment when they initially viewed the horses on December 18, 1998, they deprived the defendant of her Fourth Amendment possessory interest in the horses when they removed them three days later. The court then ruled that exigent circumstances did not support the officers’ seizure of the horses on the defendant’s property without a search warrant. The court stated that the officers had ample time during the three days to secure a search warrant.

[Author’s note: The court’s ruling is questionable. First, the court’s view that the second entry onto the defendant’s property without a search warrant or consent violated the Fourth Amendment because it was “private property” is in direct conflict with Oliver v. United States, 466 U.S. 170 (1984) (person has no reasonable expectation of privacy in land beyond curtilage of his or her home and, therefore, officer’s presence there is not a search under the Fourth Amendment). Because the defendant had no reasonable expectation of privacy in the land on which the horses were located, officers could walk on that land without a search warrant or consent as often as they wanted without violating the defendant’s Fourth Amendment rights. Second, the plain-view doctrine does not require that the officers’ seizure of the horses be supported by exigent circumstances. The plain-view doctrine is the basis for upholding a warrantless seizure of evidence when (1) an officer is lawfully in a position to make a plain-view observation (or touch, smell, etc.); (2) the officer has a lawful right of access to the object to be seized; and (3) the officer has probable cause to believe that the object is evidence of a crime. Horton v. California, 496 U.S. 128 (1990); United States v. Soussi, 29 F.3d 565 (10th Cir. 1994). There is no additional requirement of exigency to seize evidence of a crime in plain view if an officer’s presence on property is lawful; the officer has lawful access to the object to be seized (in this case, the horses in an open, accessible area); and there is probable cause to seize it. See G & G Jewelry, Inc. v. City of Oakland, 989 F.2d 1093 (9th Cir. 1993) (upholding warrantless seizure of stolen property at pawn shop under plain-view doctrine, which does not require showing of exigent circumstances); United States v. Perry, 95 F. App’x 598 (5th Cir. 2004) (unpublished) (upholding warrantless seizure of marijuana in open field under plain-view doctrine); United States v. Paige, 136 F.3d 1012 (5th Cir. 1998). The officers were lawfully on the land on December 21, 1998, when they approached the horses, because the land was not a place where the defendant had a reasonable expectation of privacy. Thus, there was a valid intrusion onto the land where the officers made a plain-view observation of the horses. They also had probable cause to believe that the property they seized (the horses) was evidence of the crime of cruelty to animals and that they could seize the horses under the plain-view doctrine without a warrant or a showing of exigent circumstances.]

State v. Wooding, 117 N.C. App. 109 (1994). An officer received a radio communication stating that a person at the Southern Lights Restaurant had seen a black man of a given description get out of a 1980s gray Monte Carlo car and hide behind a dumpster near the restaurant. The person believed that the man lived in one of the apartments at 109 North Cedar Street. While investigating this communication, the officer received another radio communication stating that a robbery had occurred at the Equinox Restaurant. The description of the robber matched the description of the suspicious person at the Southern Lights Restaurant. The officer went to 109 North Cedar Street. He saw a gray Monte Carlo car parked in front of the building, which contained four apartments—two at ground level and two upstairs. Before leaving his vehicle, the officer saw—through an open window in the side of one of the downstairs apartments—a black male matching the descriptions. After getting out of his vehicle, the officer saw this same person through the open window walking around the apartment and “heard a lot of noise which appeared to [him] to be coins hitting metal.” Id. at 110. He believed that the noise was definitely change being counted or sifted. The officer went to the back porch of the apartment in which he had seen the black male (there was a partition that separated the porches of the two lower-level apartments). Once on the porch, the officer leaned over a couch next to the window, got close to the window, and looked into the apartment through a three- to four-inch opening in the window curtains. The officer saw two black males sitting on the floor in the hallway counting money. The officer radioed what he had seen to an officer who was in front of the apartment with the robbery victim. Shortly thereafter, the defendant came out onto the front porch and was arrested for the robbery. Then the other person came out of the apartment and was identified as the robber by the victim. Both men thereafter consented to a search of the apartment, and the officers found a handgun and money in the apartment. The court, relying on State v. Tarantino, 322 N.C. 386 (1988), ruled that the officer’s looking into the apartment window while on the back porch was an unlawful search under the Fourth Amendment.

State v. Church, 110 N.C. App. 569 (1993). Based on a first-time informant’s information that marijuana was being grown near a white frame house, officers went to investigate. They saw a white frame house and a second house with wood siding about 150 feet west of the white house. The officers walked to the front porch of the white house, knocked on the door, and received no answer. From the porch, they saw (1) two marijuana plants growing along a fence that went from the white house to a third residence east of the white house and (2) a third marijuana plant growing directly behind the second house. After seeing the plants, the officers walked to the second house to determine who lived in each of the houses. One officer knocked on the front and side doors and then saw the defendant emerge from the garage that was next to the second house. The defendant informed the officers that he owned both houses but lived in the second house. The officers asked the defendant if they could search the houses and garage, but he refused. After arresting the defendant, the officers asked him for a garage-door key, which he produced. An officer inserted the key into the lock, found that it fit, and withdrew the key without opening the door.

The officers learned that the defendant was on probation, contacted his probation officer, and were informed that as a condition of probation, the defendant was obligated to submit to warrantless searches by his probation officer. An officer informed the probation officer of the discovery of marijuana and asked her if she would be interested in conducting a warrantless search under the probation condition. She told the officer that she would be willing to do so if she saw marijuana growing outside the defendant’s house and determined that the plants more than likely belonged to him. She went to the house, saw the plants, determined that they probably belonged to the defendant, and authorized a warrantless search of the defendant’s premises. She and nine law enforcement officers conducted the search.

The court ruled that the officers’ entry onto the defendant’s property by walking to the front and side doors to look for the resident was permissible based on State v. Prevette, 43 N.C. App. 450 (1979). The court also noted that the inadvertence component of the plain-view doctrine was deleted in Horton v. California, 496 U.S. 128 (1990), and ruled that the plain-view doctrine was satisfied in this case. [Author’s note: The plain-view doctrine must be satisfied only when there is a seizure of property, not when only a search takes place. The officer’s initial observation of the marijuana, before any seizure took place, did not need to satisfy the plain-view doctrine.]

State v. Russell, 92 N.C. App. 639 (1989). After the defendant was arrested, officers seized the defendant’s car from his driveway and searched it without a warrant. The court found that this violated the Fourth Amendment because, although the officers had probable cause to seize and search the car, there were no exigent circumstances, there was no consent to permit the officers to act without a search warrant, and their conduct could not be justified under the plain-view doctrine set out in Coolidge v. New Hampshire, 403 U.S. 443 (1971) (but note that the inadvertence requirement of the plain-view doctrine was later overruled in Horton v. California, 496 U.S. 128 (1990)). The ruling in this case is questionable. See Capraro v. Bunt, 44 F.3d 690 (8th Cir. 1995) (warrantless seizure of truck in driveway did not violate Fourth Amendment; truck’s position in clear public view on defendant’s driveway eliminated any privacy expectation otherwise resulting from its location on private property).

State v. Washington, 86 N.C. App. 235 (1987). Applying the curtilage test of United States v. Dunn, 480 U.S. 294 (1987), discussed above under “Areas outside the Home: Curtilage and Open Fields,” “UNITED STATES SUPREME COURT,” the court ruled that a tobacco barn, packhouse, and hog shelter that were fifty to seventy-five feet from the defendant’s house were not within its curtilage.

State v. Ford, 71 N.C. App. 748 (1984). Officers in the woods beyond a cleared area immediately surrounding a mobile home were not within the mobile home’s curtilage.

State v. Burch, 70 N.C. App. 444 (1984). The court ruled that a brush pile, concealing marijuana plants, was within the curtilage of a house when it was located eighty-four feet behind the house, because just beyond the brush pile were a small crib, a privy, a cider press, and cider barrels. Beyond the crib was a recreation building that contained a piano, a pool table, and a refrigerator, and beyond the recreation building was a private garage containing junked cars. Sown and mowed grass was around the house, between the house and the marijuana patch, alongside the crib, and between a farm road and the recreation building. Therefore, officers committed an unlawful search by entering (without a warrant) the area where the marijuana was located, which was within the curtilage of the house. The expansive definition of curtilage in Burch may have been implicitly modified by the later case of State v. Fields, 315 N.C. 191 (1985) (toolshed at least forty-five feet from dwelling was not within curtilage for second-degree burglary offense).

State v. Perry, 69 N.C. App. 477 (1984). The Fourth Amendment was not violated when officers entered property and found marijuana behind a packhouse that was not near a dwelling and was in a cornfield.

State v. Simmons, 66 N.C. App. 402, aff’d, 312 N.C. 78 (1984). The defendant had no reasonable expectation of privacy under the Fourth Amendment in a cornfield in which he was growing marijuana that was one-quarter mile from his home. See also State v. Grindstaff, 77 N.C. App. 467 (1985).

State v. Baker, 65 N.C. App. 430 (1983). An officer’s entry onto the customer parking area of the defendant’s business, which was closed when the officer entered, did not violate the defendant’s reasonable expectation of privacy.

State v. Courtright, 60 N.C. App. 247 (1983). The court ruled that the defendant’s car, parked on a street in front of a house but with its wheels on the driver’s side projecting off the pavement six or seven inches into the yard, was within the curtilage so that it could be searched pursuant to a search warrant that did not describe that car as an object to be searched. This ruling—that the car was within the curtilage—is questionable because it is highly unlikely that a person would have a reasonable expectation of privacy in a location that is six to seven inches from the street, even though it is on his or her property. The court could have upheld the search here on the ground that the defendant’s car was on his premises, even if not on the curtilage, and therefore the car could be searched during the execution of the search warrant; see, e.g., United States v. Asselin, 775 F.2d 445 (1st Cir. 1985).

State v. Prevette, 43 N.C. App. 450 (1979). When officers were making a general inquiry about whether marijuana was located on certain premises, their entering private property and going to the front door of the premises was not a trespass. See also United States v. Smith, 783 F.2d 648 (6th Cir. 1986) (entering driveway is generally not a search); United States v. Raines, 243 F.3d 419 (8th Cir. 2001) (no Fourth Amendment violation when officer entered property’s backyard under belief that person whom he was attempting to serve with civil process was at residence and that occupants of residence were in backyard and unable to hear officer knocking at front door); United States v. Hammett, 236 F.3d 1054 (9th Cir. 2001) (no Fourth Amendment violation when officers walked across open field where they had landed helicopter and to defendant’s front door to question defendant about green plants—possibly marijuana—they had seen on the property; officers also acted properly in walking around house to locate someone with whom they could speak); Alvarez v. Montgomery Cnty., 147 F.3d 354 (4th Cir. 1998) (no Fourth Amendment violation when officers, responding to 911 call about underage drinking, entered backyard when circumstances indicated that they might find homeowner there—even though they did not first knock on front door—in light of sign reading “Party In Back” with an arrow pointing to backyard).

State v. Barbee, 34 N.C. App. 66 (1977). The defendant operated a self-service gas station and a grocery store in a building. An officer’s entry into a field behind the building and his walking up to the building’s back wall did not violate the defendant’s reasonable expectation of privacy. The defendant invited the public to patronize his business, and—by maintaining a parking lot in the back of the building—he invited the public to come to that area.

State v. Jarrell, 24 N.C. App. 610 (1975). An officer, concealed in a public restroom’s ceiling, did not violate the defendants’ reasonable expectation of privacy under the Fourth Amendment when he observed them engaging in oral sex in the open, public area of the restroom. In this case, the officer did not observe either defendant in an enclosed toilet stall.

State v. Kaplan, 23 N.C. App. 410 (1974). No Fourth Amendment violation occurred when an officer conducted a warrantless search of a tent-like structure that was outside the curtilage of the defendant’s dwelling. See also United States v. Ruckman, 806 F.2d 1471 (10th Cir. 1986) (warrantless search of cave on government land did not violate Fourth Amendment because defendant did not have reasonable expectation of privacy there). But see United States v. Sandoval, 200 F.3d 659 (9th Cir. 2000) (warrantless search of tent located on government land violated Fourth Amendment, even if defendant did not have permission to be there).

Federal Appellate Courts

Freeman v. City of Dallas, 242 F.3d 642 (5th Cir. 2001) (en banc). The seizure and demolition of the owner’s apartment buildings without a warrant, after the buildings were condemned under a city ordinance and state law, were reasonable under the Fourth Amendment. See similar rulings in Hroch v. City of Omaha, 4 F.3d 693 (8th Cir. 1993), and Samuels v. Meriwether, 94 F.3d 1163 (8th Cir. 1996). The court disagreed with the ruling in Conner v. City of Santa Anna, 897 F.2d 1487 (9th Cir. 1990) (after hearings, city council declared several old and inoperable cars on plaintiff’s property a public nuisance and ordered the nuisance abated; city police called a towing company and city officials broke down a fence surrounding the backyard of the property and removed two of the cars from the property; the court ruled that judicial authorization was necessary to enter the enclosed backyard and seize the cars, where the plaintiff had a reasonable expectation of privacy, because there were no exigent circumstances to justify the city’s acting without judicial authorization).

United States v. Reilly, 76 F.3d 1271 (2d Cir. 1996). The court ruled that the curtilage of the defendant’s residence included a cottage that was 375 feet from the main residence on a 10.71-acre farm. The property was enclosed by a wire fence, hedgerows, and thick woods. There was no interior fencing separating the cottage from the main residence. The defendant and his guests used the cottage area for a variety of private activities, including fishing, naked swimming, croquet, cooking, and sexual intercourse. The area’s park-like appearance made it readily apparent to observers that the area was private. See also United States v. Depew, 8 F.3d 1424 (9th Cir. 1993) (area six feet from defendant’s garage and fifty to sixty feet from defendant’s house was within curtilage; area was not readily visible from road); Daughenbaugh v. City of Tiffin, 150 F.3d 594 (6th Cir. 1998) (backyard and unattached garage about fifty yards behind house were within curtilage); United States v. Jenkins, 124 F.3d 768 (6th Cir. 1997) (backyard enclosed on three sides by wire fence was within curtilage).

United States v. Friend, 50 F.3d 548 (8th Cir. 1995), vacated on other grounds, 517 U.S. 1152 (1996). The defendant’s residence was located within a locked gate and fence. An officer entered onto the defendant’s property with a drug-detection dog, which alerted to the defendant’s car. The car was parked outside the locked gate and fence, between the garage and a public alley. The court ruled that the car was not located with the curtilage of the defendant’s residence and that, therefore, the officer’s entry onto the defendant’s property did not violate the Fourth Amendment. See also United States v. French, 291 F.3d 945 (7th Cir. 2002) (gravel walkway within twenty feet of defendant’s trailer home that connected shed and lean-to on defendant’s property was not within curtilage because defendant did not take steps to protect walkway area from public view).

United States v. Van Damme, 48 F.3d 461 (9th Cir. 1995). The court ruled that the defendant’s three greenhouses were not within the curtilage of his home. The greenhouses were more than 200 feet from the home. A wire fence surrounding the home and greenhouses was a perimeter fence enclosing several acres, not a fence surrounding only the home and curtilage. A board fence surrounding one of the greenhouses made it a distinct portion of the property quite separate from the home. The greenhouses lacked any indicia of activities commonly associated with domestic life. The cultivation of crops, such as the marijuana involved in this case, is an activity that occurs in open fields, not an intimate activity of the home. Thus, the officers were not within the curtilage when they saw the marijuana through the board fence and the greenhouse doors; nor were any of the greenhouses within the curtilage. See also United States v. Wright, 991 F.2d 1182 (4th Cir. 1993) (barn on path from defendant’s house was not within curtilage); United States v. Traynor, 990 F.2d 1153 (9th Cir. 1993) (outbuilding about seventy-five feet away from house was not within curtilage).

United States v. Hall, 47 F.3d 1091 (11th Cir. 1995). An officer entered a commercial company’s property and removed a bag of paper shreddings from a garbage dumpster located near the company’s offices in a parking area reserved for company employees. The officer drove forty yards on a private paved road to get to the dumpster. However, there were no signs indicating that the road was private, and the dumpster was readily accessible to the public. The court noted that the United States Supreme Court has consistently stated that a commercial proprietor has a reasonable expectation of privacy only in those areas where affirmative steps have been taken to exclude the public. The court concluded that the company’s subjective expectation of privacy was not one that society was prepared to accept as objectively reasonable. Thus, the officer’s search of the dumpster did not violate the Fourth Amendment.

United States v. Hatch, 931 F.2d 1478 (11th Cir. 1991). A marijuana field growing thirty yards or more from the defendant’s house was not within the curtilage. The field was separated from the house by a taxidermy building, several fences, stock pens, a tack room, and a drying barn. The fact that the defendant had erected a perimeter fence surrounding his 300-acre tract did not create a protected privacy interest in the open fields on his property. Helicopter flights over the marijuana field also did not violate the defendant’s Fourth Amendment rights.

United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987). Officers’ placing a video camera on a utility pole to record all activities in the defendant’s backyard, when the backyard was surrounded by a 10-foot-high fence, was a search under the Fourth Amendment. The court distinguished California v. Ciraolo, 476 U.S. 207 (1986), “Areas outside the Home: Curtilage and Open Fields,” “UNITED STATES SUPREME COURT.” It also ruled that the search warrant that authorized the installation of the video camera was proper under the Fourth Amendment. See also United States v. Koyomejian, 970 F.2d 536 (9th Cir. 1992) (court described legal requirements to conduct nonaural video surveillance); United States v. Williams, 124 F.3d 411 (3d Cir. 1997) (similar ruling); United States v. Falls, 34 F.3d 674 (8th Cir. 1994) (similar ruling).

United States v. Broadhurst, 805 F.2d 849 (9th Cir. 1986). Airplane surveillance of a greenhouse was proper under California v. Ciraolo, 476 U.S. 207 (1986), discussed above, and Dow Chemical Co. v. United States, 476 U.S. 227 (1986), also discussed above.

United States v. Whaley, 781 F.2d 417 (5th Cir. 1986). Absent exigent circumstances, an officer’s warrantless entry and seizure of marijuana plants within a farm dwelling’s curtilage is unconstitutional.

Plain View (Sensory Perception)

(This topic is discussed in the chapter text under “Plain-View Sensory Perceptions (Observation, Smell, Sound, Touch, and Taste.”)

United States Supreme Court

Minnesota v. Dickerson, 508 U.S. 366 (1993). An officer had reasonable suspicion to stop the defendant and to frisk him for weapons. During the frisk, the officer felt a lump—a small, hard object wrapped in plastic—in the defendant’s jacket pocket that he knew was not a weapon. The officer determined that the lump was cocaine only after “squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket.” Id. at 378 (quoting Minnesota Supreme Court). The officer arrested the defendant for possession of a controlled substance. The Court ruled that the plain-view doctrine applies by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. (The plain-view doctrine provides that if officers are lawfully in a position in which they can plainly view an object, if its incriminating character is immediately apparent—that is, they have probable cause to seize it—and if the officers have a lawful right of access to the object, they may seize it without a warrant.) However, the Court also ruled that the officer in this case was not justified in seizing the cocaine because the officer exceeded the search for weapons permitted by Terry v. Ohio, 392 U.S. 1 (1968). Once the officer determined that the lump was not a weapon, his continued exploration of the lump until he developed probable cause to believe it was cocaine was an additional search that was not justified by Terry. (Thus, the officer’s action would have been permissible in this case only if he had developed probable cause to believe the lump was cocaine at the time he determined that the lump was not a weapon.) See also United States v. Ashley, 37 F.3d 678 (D.C. Cir. 1994) (officer felt hard object during initial pat-down; based on facts in this case, it was immediately apparent to officer that object was crack cocaine); United States v. Craft, 30 F.3d 1044 (8th Cir. 1994) (officer at airport felt hard, compact packages attached to defendant’s ankles; it was immediately apparent to officer that packages contained controlled substances).

Horton v. California, 496 U.S. 128 (1990). A person was robbed of jewelry and cash by two masked men, one armed with a machine gun and the other with a stun gun. An officer developed probable cause to search a home for the weapons and robbery proceeds, but the search warrant issued by the magistrate authorized only a search for the robbery proceeds, not the weapons. While searching for the proceeds, the officer discovered the weapons in plain view and seized them. The Court overruled the part of the opinion in Coolidge v. New Hampshire, 403 U.S. 443 (1971), that required (under the plain-view doctrine) that the discovery of evidence to be seized must be inadvertent.

The Court then ruled that the seizure in this case was authorized by the plain-view doctrine because (1) the weapons were seized during a lawful search for the robbery proceeds, authorized by a valid search warrant; and (2) when the weapons were discovered, it was immediately apparent to the officer that they constituted incriminating evidence (that is, the officer had probable cause to believe that the weapons had been used in the robbery). The search was authorized by a search warrant, and the seizure was authorized by the plain-view doctrine. [Author’s note: When an officer is executing a search warrant, G.S. 15A-253 permits the seizure of items “inadvertently” discovered. If this statute is violated when an officer does not seize items inadvertently, G.S. 15A-974(a)(2) will govern whether the items should be excluded from a trial.]

Arizona v. Hicks, 480 U.S. 321 (1987). The Court ruled that an officer who conducts a search or seizure of an item under the plain-view doctrine must have probable cause to do so; reasonable suspicion is insufficient. In Hicks, officers properly entered (without a warrant) an apartment where a shooting had occurred to search for the shooter and any victims or weapons. They seized three weapons and a stocking-cap mask. In the squalid apartment, they saw two expensive stereo components. An officer read serial numbers from some of the items without moving them. The Court ruled that this act was neither a search nor a seizure and therefore did not violate the defendant’s Fourth Amendment rights. The officer also moved a turntable so that he could read its serial number. The Court ruled that this act constituted a search that required probable cause—probable cause also was necessary to support the later seizure of the turntable from the apartment. Because the State of Arizona had conceded (unwisely, it appears) that only reasonable suspicion existed to move the turntable, the Court ruled that the officer’s actions violated the defendant’s Fourth Amendment rights.

United States v. Dunn, 480 U.S. 294 (1987). An officer’s shining a flashlight into a barn did not violate the defendant’s Fourth Amendment rights.

Illinois v. Andreas, 463 U.S. 765 (1983). A customs agent lawfully discovered drugs concealed in a container and notified other law enforcement officers, who arranged a controlled delivery to the defendant. A short time after the container was delivered to the defendant, officers arrested him, reseized the container, and searched it without a warrant. The Court ruled that reopening the container after reseizing it was not a search under the Fourth Amendment because there was no substantial likelihood that the contents of the container had been changed between the time the officers sealed it for delivery and the time they reseized it from the defendant. No legitimate expectation of privacy remained in the contents of the container once it was lawfully opened by the officers because privacy interests already had been lawfully invaded and the contraband drugs had been discovered. The Court noted that these facts were similar to facts covered by the plain-view doctrine because an owner’s privacy interest is lost when an officer observes an object. The owner may have retained a privacy interest in title and possession, but the owner did not retain a privacy interest in the container’s contents.

United States v. Place, 462 U.S. 696 (1983). Using a drug-sniffing dog to examine the outside of luggage during a temporary seizure in a public place is not a search under the Fourth Amendment. Although a person has a Fourth Amendment privacy interest in the contents of his or her luggage, a dog sniff does not reveal the luggage’s contents unless it contains contraband narcotics, and the dog sniff does not require that the luggage be opened.

Texas v. Brown, 460 U.S. 730 (1983). After an officer lawfully stopped a car for a license check, he shined his flashlight into the car and saw a party balloon—tied near its tip—fall from the defendant-driver’s hand to the seat beside him. While the defendant looked in the glove compartment for his license, the officer shifted his position and saw small plastic vials, loose white powder, and an open bag of party balloons in the glove compartment. The officer picked up the balloon, which appeared to contain a powdery substance.

A four-Justice plurality ruled that all three elements of the plain-view doctrine were satisfied to support the officer’s seizure of the balloon: (1) the officer’s actions (stopping the vehicle, shining his flashlight, shifting his position) were lawful and properly allowed him to look inside the car; (2) the officer’s experience made it “immediately apparent” to him that the balloon contained evidence of a crime (all nine Justices agreed that immediately apparent at most requires probable cause to believe the balloon contained illegal drugs); and (3) the balloon was discovered inadvertently—the officer did not conduct the license check only to discover drugs in plain view. [Author’s note: The inadvertence requirement in (3) is no longer a part of the plain-view doctrine as a result of the ruling in Horton v. California, 496 U.S. 128 (1990), discussed above in this section.] This case did not address the issue of whether the later warrantless search of the balloon was proper (but see Justice Stevens’s concurring opinion).

Washington v. Chrisman, 455 U.S. 1 (1982). An officer accompanied an arrestee back to his college dormitory room so that the arrestee could obtain his identification. While the officer was standing in the doorway to the room, he noticed seeds and a small pipe lying on a desk eight to ten feet away. Based on his training and experience, he believed that the seeds were marijuana and that the pipe was used to smoke marijuana. The Court ruled that the officer properly entered the room to seize the marijuana and the pipe that he saw in plain view. An officer, as a matter of routine, may monitor the movements of a person the officer has arrested, including entering a private room if the arrestee goes there.

Colorado v. Bannister, 449 U.S. 1 (1980). An officer saw a speeding car that disappeared before he could stop it. He then heard a radio dispatch that reported a theft of motor vehicle parts, including chrome lug nuts, and described the two suspected thieves. A few minutes later, he saw the car that had been speeding enter a service station. The officer approached the car on foot to issue a speeding citation and began talking with the two occupants. He noticed chrome lug nuts in an open glove compartment and two lug wrenches on the floorboard of the back seat. The occupants matched the radio descriptions of the men suspected of stealing the motor vehicle parts. The Court ruled that the plain-view observation of items in the car gave the officer probable cause to seize the parts and probable cause to arrest the occupants. The warrantless seizure of the items was permissible under Carroll v. United States, 267 U.S. 132 (1925).

North Carolina Supreme Court

State v. Smith, 371 N.C. 469 (2018). The state supreme court, per curiam and without an opinion, reversed the court of appeals, 255 N.C. App. 138 (2017), for the reasons stated in the dissenting opinion.

Three officers entered the defendant’s apartment to execute misdemeanor arrest warrants (the officers knew that the defendant was on probation for an offense, although they did not know then if it was a felony or misdemeanor). While two of the officers made the in-home arrest, the third conducted a protective sweep of the defendant’s apartment. A shotgun was leaning against the wall in the entry of the defendant’s bedroom. The bedroom door was open, and the shotgun was visible, in plain view, from the hallway. The officer walked past the shotgun when checking the defendant’s bedroom to confirm that no other occupants were present. After completing the sweep, the officer secured the shotgun in order to have it in police control and also to check to see if it was stolen. The officer located the serial number on the shotgun and called it into the police department, which reported that the gun was stolen. The officer then seized the weapon.

The defendant moved to suppress the shotgun, arguing that (1) the officer lacked authority to conduct a protective sweep and (2) the seizure could not be justified under the plain-view doctrine. The trial court denied the defendant’s motion to suppress. After determining that the protective sweep was proper (all three judges agreed on this issue) because the rooms in the apartment all adjoined the place of arrest and were locations from which an attack could be immediately launched (see Maryland v. Buie, 494 U.S. 325 (1990)), the court of appeals considered the seizure of the shotgun. Over a dissent, the court then ruled that the plain-view doctrine could not justify the seizure of the shotgun. The dissenting opinion, which was adopted by the supreme court, disagreed. It stated that the officers knew that the defendant had been placed on probation. A regular condition of probation is a ban on possessing firearms. Thus, the defendant’s firearm was contraband that was unlawful to possess. Thus, it was immediately apparent that the shotgun was contraband, and the plain- view doctrine justified its warrantless seizure.

State v. Grice, 367 N.C. 753 (2015). (1) Reversing the court of appeals, 223 N.C. App. 460 (2012), the court ruled that officers did not violate the Fourth Amendment by seizing marijuana plants seen in plain view. After receiving a tip that the defendant was growing marijuana at a specified residence, officers went to the residence to conduct a knock and talk. Finding the front door inaccessible, covered with plastic, and obscured by furniture, the officers noticed that the driveway led to a side door, which appeared to be the main entrance. One of the officers knocked on the side door. No one answered. From the door, the officer noticed plants growing in several buckets about fifteen yards away. Both officers recognized the plants as marijuana. The officers seized the plants, returned to the sheriff’s office, and got a search warrant to search the home. The defendant was charged with manufacturing a controlled substance and moved to suppress evidence of the marijuana plants. The trial court denied the motion and the court of appeals reversed. The supreme court began by finding that the officers observed the plants in plain view. It then explained that a warrantless seizure may be justified as reasonable under the plain-view doctrine if the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, the evidence’s incriminating character was immediately apparent, and the officer had a lawful right of access to the evidence. Additionally, the court noted, “[t]he North Carolina General Assembly has . . . required that the discovery of evidence in plain view be inadvertent.” Id. at 757. The court noted that the sole point of contention in this case was whether the officers had a lawful right of access from the driveway fifteen yards across the defendant’s property to the plants’ location. Finding against the defendant on this issue, the court stated: “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.” Id. at 758. The court rejected the defendant’s argument that the seizure was unlawful because the plants were on the curtilage of his property, stating:

[W]e 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. 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 curtilage to seize contraband in plain view within the curtilage did not violate the Fourth Amendment. Id. at 760–61 (footnote, citations omitted).

(2) The court ruled that the seizure also was justified by exigent circumstances, concluding: “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’ presence, and that the individual could easily have moved or destroyed the plants if they were left on the property.” Id. at 764.

State v. Mickey, 347 N.C. 508 (1998). Officers found the body of a murder victim in a bedroom. The victim’s husband was charged with the murder. Among items seized at the scene were a credit card found on the top of a desk located eight feet from the victim’s body and several pornographic magazines addressed to someone other than the victim’s husband that were discovered under the bed after the bloodstained mattress and the box springs were properly seized and removed. The defendant did not challenge the officers’ authority to secure the murder scene or to seize evidence related to the murder, such as the victim’s body and the bloodstained mattress. However, the defendant challenged the seizure of the credit card and pornographic magazines. The court ruled, distinguishing Arizona v. Hicks, 480 U.S. 321 (1987), that these items were properly seized because they were in plain view and were evidence of the murder. The court noted that it would have been immediately apparent to the officers that these items—bearing names other than the victim’s or defendant’s—could be evidence of the murder because they were likely to reveal the identity of the killer or of a material witness.

State v. Brooks, 337 N.C. 132 (1994). The court ruled that the officer’s shining his flashlight into a car’s interior was not a search, citing Texas v. Brown, 460 U.S. 730 (1983), and State v. Whitley, 33 N.C. App. 753 (1977).

State v. White, 322 N.C. 770 (1988). Officers executed a search warrant for stolen property and seized stolen items that were not named in the warrant. The court ruled that “inadvertence” under the plain-view doctrine means that officers do not have probable cause to believe that evidence will be discovered until they actually observe it during an otherwise justified search. [Author’s note: Inadvertence is no longer required under the Fourth Amendment, see Horton v. California, 496 U.S. 128 (1990), but it applies under G.S. 15A-253 (1988).] Judicial review involves a two-step inquiry: (1) Before the search, did officers have probable cause to secure a search warrant for the later-seized items that were not named in the search warrant? If the answer is yes, the seizure is illegal. If the answer is no, then the review proceeds to the second inquiry. (2) Did the officers have probable cause to believe that the seized items were evidence of a crime when they seized them without a warrant?

The court ruled that the officers’ use of break-in incident reports when they were executing a search warrant did not violate the plain-view inadvertence requirement because the officers did not have probable cause to list the items named in these reports in a search warrant. Therefore, the officers properly seized these items. The court ruled, however, that the officers did not have probable cause to seize other items, not named in the reports, until after they seized them; therefore, the officers illegally seized these items. See also State v. Williams, 315 N.C. 310 (1986) (officer properly seized padlock while executing search warrant for bloody clothing); State v. Sapatch, 34 N.C. App. 197 (1992) (officer did not have probable cause to search closed film canisters during administrative search for alcohol beverage control violations).

State v. Tarantino, 322 N.C. 386 (1988). The defendant had a reasonable expectation of privacy in a boarded-up store building, and an officer’s peering through a quarter-inch crack in the building’s rear wall after entering an enclosed porch there violated the defendant’s Fourth Amendment rights. But see United States v. Pace, 955 F.2d 270 (5th Cir. 1992) (no search occurred when officers pressed their faces against small opening in barn to see inside); United States v. Taylor, 90 F.3d 903 (4th Cir. 1996) (officers’ observation through open blinds while standing at front door did not violate Fourth Amendment).

State v. Peck, 305 N.C. 734 (1982). An officer had probable cause under the plain-view doctrine to seize a plastic bag containing white powder as evidence of illegal drugs that were discovered when he frisked the defendant, who was apparently intoxicated and possibly under the influence of drugs as well.

State v. Jackson, 302 N.C. 101 (1981). A mother invited an officer into her house and opened a bag in front of him to find a change of clothes for her arrested son. When the mother opened the bag, a knife fell out. The officer properly seized the knife (used in a rape) under the plain-view doctrine.

State v. Williams, 299 N.C. 529 (1980). When executing a search warrant for heroin at a trailer, officers properly seized letters and photographs not listed in the warrant as evidence of the trailer’s ownership under the plain-view doctrine and under G.S. 15A-253 (setting out the requirements of the plain-view doctrine when executing a search warrant). See also State v. Richards, 294 N.C. 474 (1978).

State v. Crews, 286 N.C. 41 (1974). Officers were in a house to serve an order for arrest on the defendant. As the defendant approached a bedroom closet to get his clothing, an officer followed him and noticed on a shelf a clear, brown-tinted, pint-sized bottle that contained several hundred multicolored pills. The officer had received drug-detection training, and the pills looked like amphetamines, which he had seen before. In addition, the size of the bottle, the large number of pills, and the lack of a prescription or label on it led him to believe the pills were amphetamines. The court ruled that this evidence was sufficient to establish probable cause to seize the bottle under the plain-view doctrine. Although this case was decided before Texas v. Brown, 460 U.S. 730 (1983), discussed above under “Plain View (Sensory Perception),” “UNITED STATES SUPREME COURT,” it is consistent with the finding of probable cause in that case.

State v. Carey, 285 N.C. 509 (1974). An officer, who was in a house to make an arrest for an armed robbery and murder in which a shotgun was used, properly seized, under the plain-view doctrine, shotgun shells that he saw in an open kitchen drawer.

State v. Harvey, 281 N.C. 1 (1972). While serving an arrest warrant in a defendant’s home, an officer properly seized, under the plain-view doctrine, seeds he saw on top of a freezer that he recognized as marijuana seeds.

North Carolina Court of Appeals

State v. Malunda, 230 N.C. App. 355 (2013). The court ruled that the trial court erred by concluding that officers had probable cause to conduct a warrantless search of the defendant, a passenger in a stopped vehicle. After detecting an odor of marijuana on the driver’s side of the vehicle, the officers conducted a warrantless search of the vehicle and discovered marijuana in the driver’s-side door. However, the officers did not detect an odor of marijuana on the vehicle’s passenger side or on the defendant. The court found that none of the other circumstances, including the defendant’s location in an area known for drug activity, his prior criminal history, his nervousness and failure to immediately produce identification, or his commission of the infraction of possessing an open container of alcohol in a motor vehicle, when considered separately or in combination, established probable cause to search the defendant’s person.

State v. Carter, 200 N.C. App. 47 (2009). An officer noticed that a vehicle’s temporary tag was old or worn and had an obscured expiration date. He stopped the vehicle, which was being driven by the defendant. The officer saw several whole pieces of paper lying on the passenger seat and noticed that the defendant seemed unusually nervous. The officer investigated the vehicle’s registration and then arrested the defendant for an expired registration tag and failure to notify the Division of Motor Vehicles of a change of address. The defendant was removed from the vehicle, handcuffed, and directed to sit on a curb while the vehicle was searched. The officer noticed that the whole pieces of paper had been ripped into smaller pieces. He placed the pieces together and discovered incriminating evidence.

(1) The court ruled that the officer’s search of the vehicle incident to the defendant’s arrest violated the Fourth Amendment under the ruling in Arizona v. Gant, 556 U.S. 332 (2009). First, the defendant was not within reaching distance or otherwise able to access the passenger compartment when the search began. He had been arrested, handcuffed, and was sitting on the curb. Second, there was no evidence that the papers were related to the offenses for which the defendant had been arrested. (2) The court ruled that the officer’s seizure and search of the papers were not justified under the plain-view doctrine because it was not immediately apparent that the papers were evidence of a crime or contraband. [Author’s note: The term “immediately apparent” is synonymous with probable cause. State v. Wilson, 112 N.C. App. 777 (1993).]

State v. Robinson, 189 N.C. App. 454 (2008). An officer was on bicycle patrol in a community known for drug activity. He saw a car speed down a street, cross over the road, and jump the curb onto the grass. The driver then drove the vehicle behind a building and out of the officer’s view. The officer was informed by radio that the defendant owned the vehicle, and the officer recalled that his agency had received a tip that named this building as being a drug location and the defendant as selling a large amount of cocaine from it. The officer went to the building and saw the defendant talking to someone inside an apartment. The officer made eye contact with the defendant, who then stopped talking. The defendant straightened up abruptly and had a surprised or frightened look on his face. The officer thought he was going to take off running. When the officer asked him what he was doing, the defendant started to back away. He turned his right side away from the officer and reached into his right pocket. The officer told him to keep his hands out of his pockets. The officer did a pat frisk and felt a cylindrical object that made a rattling sound when moved. The object felt like a film canister. The officer asked the defendant if there was crack in his pocket. He responded “no” and lowered his head and slumped his shoulders. The officer then reached into the defendant’s pocket, pulled out and opened the canister, and discovered rocks of crack cocaine.

(1) The court ruled that the officer had reasonable suspicion to make an investigative stop and frisk of the defendant based on the facts set out above. (2) The court ruled that the officer’s discovery of the crack cocaine in the film canister during the frisk of the defendant did not violate the Fourth Amendment. Under the plain-feel doctrine set out in Minnesota v. Dickerson, 508 U.S. 366 (1993), there was substantial evidence that the contents of the film canister were immediately identifiable by the officer as crack cocaine based on the facts set out above.

State v. Harper, 158 N.C. App. 595 (2003). Based on an investigation that indicated that people in a hotel room were involved with illegal drugs, an officer knocked on the door to the room. The defendant initially opened the door slightly and then, while continuing to have a conversation with the officer, opened it about halfway. The officer asked the defendant if he could step inside the room to see if George Davis was in. The defendant then stepped back from the officer and the threshold of the door and opened the door almost to its full extension. The officer saw a set of electronic scales on the nightstand between the room’s two beds and knew that drug dealers often used such scales to measure illegal drugs. There was another person in the room in addition to the defendant. That person started moving around the room, refused the officer’s order to remain seated on a bed, and became increasingly agitated. The officer handcuffed him. The defendant defied the officer’s order to remain seated on a bed and so the officer handcuffed him as well. The officer then searched for weapons in the mattresses and nightstand. The officer and other officers saw illegal drugs and cash in these places. They obtained a search warrant, conducted a search of the hotel room, and seized evidence. The court ruled (after determining that the officer was lawfully in the room with the consent to enter) that the scales were lawfully observed and seized under the plain-view doctrine. [Author’s note: The court’s ruling is clearly correct. However, the court referred to statements in State v. Bone, 354 N.C. 1, 9 (2001), that the discovery of evidence under the plain-view doctrine must be inadvertent. The statements in Bone were incorrect. An inadvertent discovery is not required under the Fourth Amendment; see Horton v. California, 496 U.S. 128 (1990). Inadvertence is required by G.S. 15A-253, but only during the execution of a search warrant. The discovery in this case did not occur during the execution of a search warrant.]

State v. Briggs, 140 N.C. App. 484 (2000). Officers were conducting a driver’s license check in a high-crime area. As one officer returned the defendant’s license to him, another officer recognized the defendant as someone whom he had previously arrested for cocaine offenses. The second officer knew that the defendant was on probation and had been convicted of drug offenses more than once. Although the defendant denied that he had been drinking or taking drugs, the second officer noted that the defendant was chewing gum “real hard” and that his eyes were glassy and bloodshot. Also, this same officer smelled the odor of burned cigar tobacco inside the vehicle and on the defendant’s person. When this officer asked the defendant about the smell, the defendant stated that he did not smoke cigars but that a female who was in the vehicle earlier had been smoking a cigar. The officer knew from his experience that drug users often smoke cigars to mask the smell of illegal drugs. The defendant declined the officer’s request to search the defendant’s vehicle. The officer then required the defendant to get out of the vehicle and frisked him for weapons. The officer was aware from his experience that drug dealers frequently carry weapons. The officer testified that during the frisk, “I felt a hard, cylindrical shape in [defendant’s] pocket and it felt like a cigar holder; and I’m familiar with these because folks carry these frequently to keep their controlled substances in. It’s like a little plastic test tube with a little cap on it; and there’s really nothing else that’s shaped exactly like that.” Id. at 486–87 (quoting trial court transcript). The officer asked the defendant what that object was, and the defendant stated, “A cigar holder.” The officer said, “I thought you didn’t smoke cigars,” but the defendant did not respond. Id. at 487 (quoting transcript). The officer then removed the cigar holder from the defendant’s pocket, and when he shook it, the cigar holder “rattled like it had a number of small hard objects in it.” Id. The officer opened the cigar holder, found ten rocks of crack cocaine inside, and arrested the defendant.

The court ruled, relying on State v. Butler, 331 N.C. 227 (1992), and State v. McGuirt, 122 N.C. App. 237 (1996), aff’d, 345 N.C. 624 (1997), that the officer had reasonable suspicion to conduct the frisk based on the facts discussed above. (2) The court ruled that the officer had probable cause to seize the cigar holder under the plain-feel doctrine set out in Minnesota v. Dickerson, 508 U.S. 366 (1993). The court discussed cases from other jurisdictions that have split on the issue of whether the plain-feel doctrine may be satisfied when an officer feels a container the shape of which does not itself reveal its identity as contraband. Courts upholding such seizures consider factors in addition to the officer’s tactile perception to determine probable cause. Other courts declining to uphold such seizures have determined that touching the containers themselves cannot sustain a probable cause finding. The court adopted the view that it would consider the totality of circumstances in deciding whether an officer had probable cause to seize such a container when the officer felt it, and the court stated that a probable cause determination involves considering the evidence as understood by law enforcement officers. Based on the facts discussed above, the court ruled that the officer in this case had probable cause to seize the cigar holder. See also State v. Green, 146 N.C. App. 702 (2001) (during encounter with defendant in area known for drug activity, officer had probable cause to seize plastic baggie protruding from defendant’s pocket when officer knew that illegal drugs were customarily packaged in plastic baggies).

State v. Graves, 135 N.C. App. 216 (1999). The defendant was shot in an area known for high drug activity. An officer went to the hospital to learn about the shooting. While speaking to the defendant, who was on a stretcher, the officer noticed wads of brown paper falling from the defendant’s shoe or pant leg as a nurse began to remove the defendant’s shoes and clothing. The officer picked up the paper wads, unraveled them, and found a crack pipe and crack cocaine. The court ruled that the officer did not have probable cause—the equivalent of “immediately apparent” under the plain-view doctrine—to believe that the contents of the wads of paper contained illegal drugs. The court noted, citing State v. Sanders, 112 N.C. App. 477 (1993), that the officer was not asked, nor did he testify, about what he suspected was contained in the paper wads before he unwrapped them.

State v. Bartlett, 130 N.C. App. 79 (1998). During a lawful search of a vehicle, an officer searched a book bag within the vehicle and seized (1) a clear plastic bag containing finely chopped vegetable material with many white specks and (2) a piece of black, hard, plastic-like material wrapped in aluminum foil. Because the officer did not recognize the plastic-like material, she asked another officer, who was experienced in drug cases, to examine it. That officer did not know what it was, so she decided to send it to the State Bureau of Investigation (SBI) laboratory for analysis, which revealed that the substance was bufotenine, a Schedule I controlled substance. The SBI chemist testified at the suppression hearing that he had performed thousands of tests on suspected controlled substances but had only encountered bufotenine three or four times in his career. The State argued that the proximity of the plastic-like substance to a clear plastic bag containing finely chopped vegetable material was sufficient to establish probable cause to seize the plastic-like substance. The court stated, however, that the officers were equally unsure of the identity of the vegetable material—which later laboratory analysis concluded did not contain any controlled substance. The seizing officer testified that the “plastic bag almost looked as if it could have possibly contained some sort of very finely chopped marijuana.” Id. at 85. The court ruled, citing State v. Beaver, 37 N.C. App. 513 (1978), that the officer had a conjecture—but not probable cause—to seize the plastic-like material and that, therefore, the seizure of the bufotenine violated the Fourth Amendment.

State v. Benjamin, 124 N.C. App. 734 (1996). An officer conducted a frisk of the defendant after an investigative stop for a traffic violation. As the officer was patting down the defendant, he felt two hard plastic containers in a breast pocket of the defendant’s winter jacket. Based on his narcotics training, it was immediately apparent to the officer that these containers were vials of the type customarily used to hold illegal drugs. When the officer felt the containers through the jacket, he asked the defendant, “What is that?” The defendant responded that it was “crack.” The officer removed two vials from the coat pocket and found cocaine.

(1) The court ruled that the defendant was not in custody when the officer asked him what the objects were, and therefore Miranda warnings were not required. The court noted that the fact that a defendant is not free to leave does not necessarily constitute “custody” under Miranda. Instead, the inquiry is whether a reasonable person in the defendant’s position would believe that he or she was under arrest or the functional equivalent of arrest; the court cited and discussed Stansbury v. California, 511 U.S. 318 (1994), and Berkemer v. McCarty, 468 U.S. 420 (1984). The court concluded that a reasonable person would not have believed that he or she was in custody based on these facts. (2) The court ruled that the seizure of the cocaine was proper under the plain-feel theory of Minnesota v. Dickerson, 508 U.S. 366 (1993). The court stated that the officer had probable cause to believe (or, to state it a different way, that it became immediately apparent to the officer) that the objects were contraband based on the officer’s experience and narcotics training; the size, shape, and mass of the objects; and the defendant’s response to the officer’s question. The court also ruled that an officer may ask a suspect the nature of an object in the suspect’s pocket during a lawful frisk even after the officer has determined that the object is not a weapon.

In re Whitley, 122 N.C. App. 290 (1996). Two officers responded to a call that drug sales were occurring between two black males on a certain street. The officers saw the respondent and another person under a tree. They approached and told them that they were going to do a weapons search. During the search of the respondent, an officer noticed that his lower body and legs were tight, so he asked him to spread his legs. The officer’s hands were outside the respondent’s trousers in the bottom crotch area when an item fell from the respondent’s buttocks into his pants and onto the officer’s hand. When the officer retrieved the item from the respondent’s pants, he saw that it was a plastic bag containing a white powdered substance. The officer placed the respondent under arrest.

The court ruled (1) that there was reasonable suspicion that the respondent might be armed, dangerous, and involved in criminal activity, and therefore the officer’s frisk of him was lawful [Author’s note: This ruling—that there was reasonable suspicion—is now questionable in light of the later case of Florida v. J.L., 529 U.S. 266 (1999).] and (2) that the incriminating character of the object seized was immediately apparent to the officer, noting State v. Wilson, 112 N.C. App. 777 (1993), and Minnesota v. Dickerson, 508 U.S. 366 (1993). The court noted that there was no evidence that the officer improperly manipulated the object to determine if it was an illegal substance.

State v. Wooding, 117 N.C. App. 109 (1994). An officer received a radio communication stating that a person at the Southern Lights Restaurant had seen a black man of a given description get out of a 1980s gray Monte Carlo car and hide behind a dumpster near the restaurant. The person believed that the man lived in one of the apartments at 109 North Cedar Street. While investigating this communication, the officer received another radio communication stating that a robbery had occurred at the Equinox Restaurant. The description of the robber matched the description of the suspicious person at the Southern Lights Restaurant. The officer went to 109 North Cedar Street. He saw a gray Monte Carlo car parked in front of the building, which contained four apartments—two at ground level and two upstairs. Before leaving his vehicle, the officer saw—through an open window in the side of one of the downstairs apartments—a black male matching the descriptions. After getting out of his vehicle, the officer saw this same person through the open window walking around the apartment and “heard a lot of noise which appeared to [him] to be coins hitting metal.” Id. at 110. He believed that the noise was definitely change being counted or sifted through. The officer went to the back porch of the apartment in which he had seen the black male (there was a partition that separated the porches of the two lower-level apartments). Once on the porch, the officer leaned over a couch next to the window, got close to the window, and looked into the apartment through a three- to four-inch opening in the window curtains. The officer saw two black males sitting on the floor in the hallway counting money. The officer radioed what he had seen to an officer who was in front of the apartment with the robbery victim (the victim heard the officer’s communication). Shortly thereafter, the defendant came out onto the front porch and was arrested for the robbery. Then the other person came out of the apartment and was identified as the robber by the victim. Both men thereafter consented to a search of the apartment, and the officers found a handgun and money in the apartment.

The court, relying on State v. Tarantino, 322 N.C. 386 (1988) (looking through cracks in building violated Fourth Amendment), ruled that the officer’s looking into the apartment window while on the back porch was an unlawful search under the Fourth Amendment. The court rejected the State’s argument that the later consent search of the apartment—when the handgun and money were found—was based on lawful activity independent of the officer’s initial unlawful observation into the apartment window. The court ruled that (1) the arrest of the defendant was based entirely on the officer’s unlawful search and was therefore itself unlawful; (2) the consent to search, given by the defendant after his arrest, was tainted by the unlawful search; and (3) the victim’s identification of the second person in the apartment was made only after the victim learned what the officer had seen through the back window—two people counting money in the apartment; thus, the identification and the later consent to search were also tainted by the unlawful search.

State v. Wilson, 112 N.C. App. 777 (1993). A police department received an anonymous phone call that several people were selling drugs in the breezeway of Building 1304 in the Hunter Oaks Apartments. The caller did not provide names or descriptions of the alleged drug dealers. Two officers familiar with the area knew that if a police car entered the parking lot at one end of the breezeway, the suspects would run out the other end. They devised a plan whereby a police car would enter the parking lot and officers would position themselves so that they could stop anyone who ran out of the back of the breezeway. An officer stopped the defendant as he ran out of the back of the breezeway and conducted a frisk. During the frisk, the officer felt a lump in the left breast pocket of the defendant’s jacket and immediately believed that it was crack cocaine. The officer then asked the defendant if his coat had an inside pocket. The defendant did not respond verbally but instead opened his jacket so that the inside pocket was visible. The officer saw and removed a small plastic bag that contained crack cocaine.

(1) Distinguishing State v. Fleming, 106 N.C. App. 165 (1992), the court ruled that the officer had authority to stop and frisk the defendant based on the anonymous phone call, the flight of the defendant and others when the police car pulled into the parking lot, and the officer’s experience that weapons were frequently involved in drug transactions. (2) Distinguishing Minnesota v. Dickerson, 508 U.S. 366 (1993), the court noted that the officer in this case—unlike the officer in Dickerson—did not need to manipulate the item in the defendant’s pocket to determine that it was cocaine; he immediately believed it was crack cocaine. The court ruled that the requirement in Dickerson that it must be “immediately apparent” to the officer that the item is illegal means that the officer must have probable cause to believe that the item is illegal. The court also ruled that the officer’s tactile senses, based on his experience and the facts in this case, gave him probable cause to believe that the item was crack cocaine. Thus, the officer did not exceed the scope of a frisk under the Dickerson ruling.

State v. Whitted, 112 N.C. App. 640 (1993). A car parked in front of a residence fled at high speed after the driver saw a marked patrol car. The area from which the car fled was known for frequent drug sales, especially crack cocaine. People commonly pulled over to the curbside after being flagged down and purchased drugs. This area had been under surveillance for thirty days, and several arrests had been made based on drug sales at the residence from which the car had fled. After officers stopped the car, they went on each side of the car to investigate. The defendant was sitting in the front passenger seat, and an officer saw that the defendant kept his hand by his front pants pocket and “kept pushing something down.” The defendant did not move his hand when the officer asked him to do so, and the officer then frisked the defendant for weapons. During the frisk, the officer felt a “pebble” (that is, a hard substance) in the defendant’s pocket that he believed, based on his experience and knowledge of the circumstances, to be crack cocaine. He removed the object and discovered that it was crack cocaine.

The court ruled, based on all the circumstances in this case, including the defendant’s suspicious behavior and his high-speed flight from the officers, that the officer had probable cause to search the defendant after the officer felt the object in the defendant’s pocket. [Author’s note: Although the court did not discuss Minnesota v. Dickerson, 508 U.S. 366 (1993), its ruling is consistent with that case.]

State v. Sanders, 112 N.C. App. 477 (1993). Two State Highway Patrol officers set up a driver’s license check at a ramp off a highway. They did not post signs warning the public that a license check was being conducted. The officers checked every car that approached the checkpoint unless they were busy writing citations. The defendant entered the ramp, and as he approached the checkpoint, he stopped his car 150 feet from one of the troopers. The defendant then drove up to the checkpoint, stopped his car, and rolled down his window. In response to the trooper’s request for his driver’s license and registration, the defendant said that he did not have the registration or any identification and that he was not the owner of the car. The passenger in the car also failed to produce any identification. The trooper asked the defendant to get out of the car. As he stepped out of the car, the trooper saw a bulge about the size of two fists in the right pocket of the defendant’s jacket. The trooper then told the defendant to face the car and place his hands on it so that he could pat him down for weapons. As the defendant was following the trooper’s instructions, the trooper saw plastic protruding from his right pocket. While frisking the defendant, the trooper touched the bulge and noted that it felt like “hard flour dough.” The trooper removed the plastic bag from the defendant’s pocket. It contained three smaller bags with cocaine inside.

(1) Distinguishing Delaware v. Prouse, 440 U.S. 648 (1979), the court ruled that the stop at the license checkpoint was constitutional. The court noted that the troopers followed their agency’s guidelines in selecting the location and time for the license check and detained every car that passed through, except for those that came through while they were issuing citations. (2) Following State v. Peck, 305 N.C. 734 (1982), the court ruled that the trooper—based on the facts described above, his testimony that people driving stolen cars often provide officers with false names and insist that they have no identification, and the bulge in the defendant’s pocket—had reason to believe that the defendant was armed and dangerous and therefore could lawfully frisk him. (3) The court also ruled, based on Minnesota v. Dickerson, 508 U.S. 366 (1993), that the trooper acted properly in conducting the frisk by feeling the packet in the bulge in the jacket to determine if it was a weapon. (4) The court remanded the case to the trial court to determine, in light of Dickerson (decided after this case was heard in the trial court), whether it was immediately apparent to the trooper that what he felt was illegal drugs.

State v. Church, 110 N.C. App. 569 (1993). Based on a first-time informant’s information that marijuana was being grown near a white frame house, officers went to investigate. They saw a white frame house and a second house with wood siding about 150 feet west of the white house. The officers walked to the front porch of the white house, knocked on the door, and received no answer. From the porch, they saw (1) two marijuana plants growing along a fence that went from the white house to a third residence east of the white house and (2) a third marijuana plant growing directly behind the second house. After seeing the plants, the officers walked to the second house to determine who lived in each of the houses. One officer knocked on the front and side doors and then saw the defendant emerge from the garage that was next to the second house. The defendant informed the officers that he owned both houses but lived in the second house. The officers asked the defendant if they could search the houses and garage, but he refused. After arresting the defendant, the officers asked him for a garage door key, which he produced. An officer inserted the key into the lock, found that it fit, and withdrew the key without opening the door.

The officers learned that the defendant was on probation, contacted his probation officer, and were informed that as a condition of probation, the defendant was obligated to submit to warrantless searches by his probation officer. An officer informed the probation officer of the discovery of marijuana and asked her if she would be interested in conducting a warrantless search under the probation condition. She told the officer that she would be willing to do so if she saw marijuana growing outside the defendant’s house and determined that the plants more than likely belonged to him. She went to the house, saw the plants, determined that they probably belonged to the defendant, and authorized a warrantless search of the defendant’s premises. She and nine law enforcement officers conducted the search.

The court ruled that officers’ entry onto the defendant’s property by walking to the front and side doors to look for the resident was permissible based on State v. Prevette, 43 N.C. App. 450 (1979). The court also noted that the inadvertence component of the plain-view doctrine was deleted in Horton v. California, 496 U.S. 128 (1990), and ruled that the plain-view doctrine was satisfied in this case. [Author’s note: The plain-view doctrine must be satisfied only when there is a seizure of property, not when only a search takes place. The officer’s initial observation of the marijuana, before any seizure took place, did not need to satisfy the plain-view doctrine.]

State v. Corpening, 109 N.C. App. 586 (1993). A deputy sheriff responded to a report that the defendant’s van had caught fire and was off the highway in the lot of an old store. The fire had been extinguished when the deputy sheriff arrived. The deputy, who had been an officer for thirteen years and had smelled “white liquor” many times, detected the odor of that substance coming from the van. The court ruled that the deputy’s detection of the odor was sufficient to establish probable cause to search the van (in addition, the defendant had acted very nervous and had placed cardboard over a burned-out window), and thus the warrantless search of the van was constitutional, based on State v. Isleib, 319 N.C. 634 (1987).

State v. Trapper, 48 N.C. App. 481 (1980). The defendant was the driver of a truck stopped by an officer. The officer’s detection of the odor of marijuana while standing beside the truck did not violate the defendant’s Fourth Amendment rights. For other cases involving the detection of the odor of marijuana and other drugs, see State v. Greenwood, 47 N.C. App. 731 (1980), rev’d on other grounds, 301 N.C. 705 (1981) (odor of marijuana provided probable cause to search vehicle); State v. Cornelius, 104 N.C. App. 583 (1991) (similar ruling); State v. Ford, 71 N.C. App. 748 (1984) (odor of marijuana provided probable cause to search mobile home); United States v. McKeever, 906 F.2d 129 (5th Cir. 1990) (officer’s smelling aroma of cooking amphetamine provided probable cause for search warrant).

State v. Beaver, 37 N.C. App. 513 (1978). An officer properly stopped a car with one taillight out. He saw between a passenger’s legs a shot glass that had a white powdery substance in it. Although he saw this evidence in plain view, he lacked probable cause to believe that the glass contained an illegal drug, and therefore his seizure of it was unconstitutional. The officer did not have training or familiarity with controlled substances to establish probable cause that the white powder was an illegal drug. Compare with State v. Wolfe, 26 N.C. App. 464 (1975) (officer, who saw transparent plastic bag containing small tinfoil packets in car, had probable cause to believe that packets contained illegal drugs; although result probably is correct, court did not set out facts that supported probable cause); State v. Tillett, 50 N.C. App. 520 (1981) (after shining flashlight in car, officer saw object that his training and experience gave him probable cause to believe—court used the synonymous term “probability”—was marijuana cigarette).

State v. Blackwelder, 34 N.C. App. 352 (1977). Because an officer had no legal justification to stop or search a car or to arrest or search the occupants, he had no justification under the plain-view doctrine to seize a box of LSD tablets after he stopped the car, took the defendant out of the car, reached under the front seat, and picked up the box.

State v. Absher, 34 N.C. App. 197 (1977). While officers were executing a search warrant to search for marijuana, they seized a ledger book that contained names with dollar signs beside them. The ledger was properly seized under the plain-view doctrine because (1) a nexus existed between the item seized and marijuana possession; (2) the item was in plain view; and (3) the discovery of the item was inadvertent (see State v. White, 322 N.C. 770 (1988), discussed above under “Plain View (Sensory Perception),” “NORTH CAROLINA SUPREME COURT,” about the inadvertence requirement) because the officers did not have probable cause to search for the ledger before they executed the search warrant—they only had some information that it might be there. See also State v. Zimmerman, 23 N.C. App. 396 (1974); State v. Wynn, 45 N.C. App. 267 (1980) (mere expectation that evidence will be discovered does not negate the inadvertence element).

State v. Whitley, 33 N.C. App. 753 (1977). Officers’ shining a flashlight into a car properly may be used to support an observation under the plain-view doctrine. The court rejected the defendant’s argument that the objects seized from his car were not in plain view because a flashlight was needed to view them. See also State v. Wynn, 45 N.C. App. 267 (1980).

State v. Spruill, 33 N.C. App. 731 (1977). An officer who looked at a car’s wheels and rims did not conduct a search under the Fourth Amendment because anyone could have seen these things by looking at the car.

State v. Young, 21 N.C. App. 369 (1974). Officers went to the defendant’s trailer to talk to him about a murder. The defendant was last seen with the murder victim, who had bled profusely from the attack. After the officers discovered that the trailer had burned down, they saw the defendant’s car, which appeared to have blood stains on the door, door handles, and bumper. The officers properly seized the car as evidence of murder based on the plain-view doctrine. The seizure was inadvertent (see State v. White, 322 N.C. 770 (1988), discussed above under “Plain View (Sensory Perception),” “NORTH CAROLINA SUPREME COURT,” concerning the inadvertence requirement) because the officers had intended to look for the defendant rather than search for evidence.

Federal Appellate Courts

United States v. Taylor, 90 F.3d 903 (4th Cir. 1996). Two law enforcement officers went to the defendant’s home to return a handgun pursuant to a court order. As they approached the front door, they could clearly see into a well-lit dining room through unclosed vertical blinds in a picture window. The court ruled, based on these facts, that the defendant did not possess a reasonable expectation of privacy from the officers’ observations, and thus their observations were not a search under the Fourth Amendment.

United States v. Williams, 41 F.3d 192 (4th Cir. 1994). An officer properly conducted a warrantless search of five legally seized packages located in lost luggage at an airport because the fact that they contained cocaine was clearly indicated (the court stated that their contents were a “foregone conclusion”) based on (1) the manner in which the cocaine was packaged—each package apparently weighed about 1 kilogram and was heavily wrapped in cellophane with a brown opaque material inside; (2) the officer’s firm belief, based on ten years’ experience, that packages appearing in this manner always contained narcotics; (3) an airline baggage agent’s belief that the packages contained narcotics; and (4) the fact that the only items found in the suitcase besides the five packages of cocaine were towels, dirty blankets, and a shirt with a cigarette burn.

G & G Jewelry, Inc. v. City of Oakland, 989 F.2d 1093 (9th Cir. 1993). An officer’s warrantless seizure of stolen property being held at a pawn shop under a pawn agreement was proper under the plain-view theory if the seizure was for investigatory purposes—but not if the stolen property was seized simply to return it to the rightful owner.

United States v. Moreno, 897 F.2d 26 (2d Cir. 1990). An officer with sixteen years’ experience investigating drug offenses looked into a bag that was opened by the defendant and saw a brick-shaped package wrapped in brown paper and tape, which the officer believed, based on his experience, to contain cocaine. The court ruled that the officer had probable cause to seize the package, considering also that the defendant was extremely nervous and falsely stated that the bag contained food.

United States v. Thompson, 837 F.2d 673 (5th Cir. 1988). The defendant’s keys were lawfully taken from him for an inventory when he was jailed. The officer’s later examination of these keys was not a search because once property has been seized with proper justification and is in plain view of government officials, the owner no longer has a reasonable expectation of privacy in that property, and it may be seized without a warrant.

United States v. Williams, 822 F.2d 1174 (D.C. Cir. 1987). An officer’s touching a bag to determine if it contained a weapon supplied probable cause to believe that heroin was inside, based on the officer’s training and experience. The officer’s plain touch revealed its contents.

GPS and Other Tracking Devices

(This topic is discussed in the chapter text under “GPS tracking devices.”)

UNITED STATES SUPREME COURT

United States v. Jones, 565 U.S. 400 (2012). The Court ruled that the government’s installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle’s movements on public streets constitute a “search” within the meaning of the Fourth Amendment. Officers who suspected that the defendant was involved in drug trafficking installed a GPS device without a valid search warrant on the undercarriage of a vehicle while it was parked in a public parking lot in Maryland. Over the next twenty-eight days, the government used the device to track the vehicle’s movements and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet and communicated that location by cellular phone to a government computer. It relayed more than 2,000 pages of data over the four-week period. The defendant was charged with several drug offenses. He unsuccessfully sought to suppress the evidence obtained through the GPS device. The government argued before the United States Supreme Court that a warrant was not required for the GPS device. Concluding that the evidence should have been suppressed, the Court characterized the government’s conduct as having “physically occupied private property for the purpose of obtaining information.” Thus, the Court had “no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 404. The Court declined to address whether the defendant had a reasonable expectation of privacy in the undercarriage of his car and in the car’s locations on the public roads, concluding that such an analysis was not required when the intrusion—as here—“encroached on a protected area.” Id. at 410.

United States v. Karo, 468 U.S. 705 (1984). The warrantless installation of a beeper in a can of ether with the owner’s consent and the later transfer of the can with the beeper to the defendant was not a search or seizure under the Fourth Amendment, and therefore it did not violate the defendant’s Fourth Amendment rights. However, monitoring a beeper inside a private residence is a search under the Fourth Amendment and requires a search warrant unless exigent circumstances exist.

United States v. Knotts, 460 U.S. 276 (1983). Monitoring a beeper signal in a container while the automobile in which the container was placed traveled on public highways and then drove up to a cabin was not a search or seizure under the Fourth Amendment, and therefore it did not violate the defendant’s Fourth Amendment rights. [Author’s note: Three federal appellate courts have either ruled or indicated that Knotts applies to GPS devices. United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010) (GPS device attached to undercarriage of vehicle and then monitored); United States v. Marquez, 605 F.3d 604 (8th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007). However, another federal appellate court ruled in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), that “prolonged” GPS tracking (in this case, twenty-four hours a day for four weeks), even in public places, is a search under the Fourth Amendment and requires justification (which usually means probable cause and judicial authorization—either a search warrant or court order).]

NORTH CAROLINA COURT OF APPEALS

State v. Hendricks, 43 N.C. App. 245 (1979). The court’s ruling and statements in its opinion on using beepers must be reconsidered in light of the later United States Supreme Court cases, United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), discussed in this section, above, and the definitions of search and seizure in United States v. Jacobsen, 466 U.S. 109 (1984).

FEDERAL APPELLATE COURTS

United States v. McIver, 186 F.3d 1119 (9th Cir. 1999). Federal officers’ placement of a magnetic electronic tracking device on the undercarriage of a vehicle was not a search or seizure under the Fourth Amendment. Also, the officers’ entry onto the driveway of the defendant’s residence to place the device on the vehicle, when the driveway was outside the curtilage and was open to observation by passersby and not enclosed by a fence or gate, was not a search under the Fourth Amendment—even assuming, arguendo, that the officers committed a trespass by entering the driveway.

United States v. Jones, 31 F.3d 1304 (4th Cir. 1994). A postal inspector’s use of an electronic tracking device to monitor the movement of a government mail pouch was not a search under the Fourth Amendment when the defendant stole the mail pouch and hid it in his van.

Historical Cell-Site Information

UNITED STATES SUPREME COURT

Carpenter v. United States, 585 U.S. 296 (2018). The Court ruled that when the government accessed many days’ worth of historical cell-site location information (CSLI) from a robbery suspect’s wireless carriers, it invaded his “reasonable expectation of privacy in the whole of his physical movements,” and thereby conducted a search under the Fourth Amendment. Id. at 313. The Court stated that, as a general rule, investigators must obtain a warrant supported by probable cause before they can acquire such records, unless an exception to the warrant requirement, such as exigency, is present. This effectively overrules prior North Carolina precedent and prohibits officers from using “reasonable grounds” court orders under 18 U.S.C. § 2703(d) to obtain long-term historical CSLI. Carpenter does not, however, address all the legal issues concerning cell phones and location information. For example, the majority expressly declined to opine about the Fourth Amendment status of “real-time CSLI or ‘tower dumps’ ” and left open the possibility that obtaining only short-term historical CSLI would not be a search. For a detailed discussion of Carpenter, see Jeff Welty, Supreme Court Rules That Obtaining Cell Site Location Information Is a Search, N.C. Crim. L.: A UNC Sch. of Gov’t Blog (June 25, 2018), https://nccriminallaw.sog.unc.edu/9411-2/.

North carolina COURT of appeals

State v. Gore, 272 N.C. App. 98 (2020). The defendant pled guilty to manslaughter and armed robbery while preserving his right to appeal the denial of his motion to suppress historical cell-site location information (CSLI) obtained by the State without a search warrant. Evidence at the suppression hearing showed that police responded to a homicide and learned that a white Altima was seen leaving the scene. Officers soon located and boxed in the car, but the driver fled on foot and discarded a bloody handgun as he ran. Inside the car officers found drugs, a gun, and a blood-covered cell phone belonging to the defendant. Officers applied for a court order to obtain the records of the phone, including five days of CSLI from around the time of the homicide. The application was sworn under oath and supported by affidavit, and the order was issued based on a finding of probable cause. The phone records revealed that the defendant was in the area of the shooting when it occurred and was near the location of the white Altima when it was abandoned. The defendant moved to suppress the records because they were not obtained pursuant to a search warrant based on probable cause, in violation of his state and federal constitutional rights. The trial court denied the motion, finding that the court order in this case was the equivalent of a search warrant supported by probable cause. The court of appeals affirmed the trial court’s ruling.

The court first addressed the defendant’s federal constitutional claim. Citing Carpenter v. United States, 585 U.S. 296 (2018), discussed immediately above, the court agreed that obtaining historical CSLI constituted a search, which requires a warrant supported by probable cause. A court order issued pursuant to the Stored Communications Act (SCA, 18 U.S.C. Chapter 121) based only on “reasonable grounds” to believe the records would be “relevant and material” to the investigation would not satisfy that standard. However, the order in this case was obtained two years before Carpenter was decided, and it was issued in compliance with the law at that time. Therefore, as in Carpenter, “even assuming law enforcement did conduct a warrantless search in violation of defendant’s Fourth Amendment rights, the federal good-faith exception to the exclusionary rule would apply.” Gore, 272 N.C. App. at 102 (footnote omitted). (See United States v. Leon, 468 U.S. 897, 918 (1984) (“provid[ing] an exception . . . when ‘officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.’ ”))

Turning to the state constitutional claim and noting that the state right at issue must be interpreted at least as broadly as the federal right, the court ruled that “a warrantless search of historical CSLI constitutes an unreasonable search in violation of a defendant’s rights under the North Carolina Constitution as well.” Id. at 104. But after reviewing the statutory requirements for a search warrant and the probable cause standard, the court concluded that the order in this case did satisfy the search warrant requirement. First, although it was denominated a court order rather than a search warrant, it nevertheless contained all of the information required in a search warrant, such as the applicant’s name, sworn allegations of fact to support the applicant’s belief, and a request to produce records. Second, although a court order issued under the SCA is only required to meet a “reasonable grounds” standard akin to reasonable suspicion, the order in this case was actually based upon a finding that there was “Probable Cause that the information sought is relevant and material to an ongoing criminal investigation, involving a First Degree Murder.” Id. at 100 (emphasis added) (quoting judge who granted officer’s application to obtain defendant’s cell phone records). The court stated that the finding of probable cause was a significant distinction that compelled a different outcome than that of Carpenter. Accordingly, because the trial court determined that there was probable cause to search the defendant’s historical CSLI, the requirements for a warrant were met and the defendant’s constitutional rights were not violated.

Dogs

(This topic is discussed in the chapter text under “Dogs.”)

United States Supreme Court

Florida v. Harris, 568 U.S. 237 (2013). The Court ruled that the dog sniff in this case provided probable cause to search a vehicle. The Court rejected a ruling of the Florida Supreme Court that would have required the prosecution to present, in every case, an exhaustive set of records, including a log of a dog’s performance in the field, to establish the dog’s reliability. The Court found this demand “inconsistent with the ‘flexible, common-sense standard’ of probable cause.” Id. at 240. It instructed:

In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test. Id. at 247–48.

Applying that test to the drug dog’s sniff in the case at hand, the Court found that it had been satisfied and ruled that there was probable cause to search the defendant’s vehicle.

Florida v. Jardines, 569 U.S. 1 (2013). The Court ruled that officers’ use of a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment. The Court’s reasoning was based on the theory that the officers engaged in a physical intrusion of a constitutionally protected area. Applying that principle, the Court ruled:

The officers were gathering information in an area belonging to [the defendant] and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner. Id. at 5–6.

The Court did not decide the case on a reasonable-expectation-of-privacy analysis.

Illinois v. Caballes, 543 U.S. 405 (2005). The defendant was lawfully stopped for speeding. While the stopping officer was writing a warning ticket, another officer arrived and walked a drug-detection dog around the defendant’s vehicle. The dog alerted to the trunk, and a search discovered marijuana. The entire incident lasted less than ten minutes. The Court stated that the issue in this case was a narrow one: whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. The Court noted that a seizure justified solely by the interest in issuing a warning ticket can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. The Court stated that the state court had reviewed the stopping officer’s conversations with the defendant and the precise timing of his radio transmissions to the dispatcher to determine whether the officer had improperly extended the duration of the stop to enable the dog sniff to occur. The Court accepted the state court’s conclusion that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop. The Court noted that the state appellate court had ruled, however, that the use of the drug-detection dog converted the encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by reasonable suspicion that the defendant possessed illegal drugs, it violated the Fourth Amendment. The Court rejected this analysis and ruling. It stated that conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise conducted in a reasonable manner, unless the dog sniff itself violated the defendant’s Fourth Amendment right to privacy. The Court ruled that the dog sniff did not do so, relying on United States v. Jacobsen, 466 U.S. 109 (1984), United States v. Place, 462 U.S. 696 (1983), and City of Indianapolis v. Edmond, 531 U.S. 32 (2000), and distinguishing Kyllo v. United States, 533 U.S. 27 (2001). The Court stated that a dog sniff conducted during a lawful traffic stop that reveals no information other than the location of a substance that a person had no right to possess does not violate the Fourth Amendment.

[Author’s note: (1) The United States Supreme Court ruled in Edmond that a checkpoint for which the primary purpose was drug detection violated the Fourth Amendment. The Caballes ruling did not change the Edmond ruling. For example, if officers walked a drug dog around all vehicles initially stopped at a DWI or license checkpoint (in contrast to walking a drug dog around a car after the driver had been lawfully detained at the checkpoint for further investigation for a valid reason), then a court would likely rule that the primary purpose of the checkpoint was drug detection, not DWI or license checks. (2) The detention in Caballes took about ten minutes. Absent the driver’s consent to remain at the location of the traffic stop or an officer’s reasonable suspicion of criminal activity to justify a further detention, the duration of a typical traffic stop would likely become unconstitutionally long if the driver was detained solely because the officer was waiting for a drug dog to arrive, the officer had already completed the necessary actions related to the traffic stop, and the time spent awaiting the drug dog measurably extended the duration of the stop. See generally Arizona v. Johnson, 555 U.S. 323 (2009); State v. Brimmer, 187 N.C. App. 451 (2007).]

United States v. Place, 462 U.S. 696 (1983). Using a drug-sniffing dog to examine the outside of luggage during a temporary seizure in a public place is not a search under the Fourth Amendment. Although a person has a Fourth Amendment privacy interest in the contents of his or her luggage, a dog sniff does not reveal its contents unless it contains contraband narcotics, and the dog sniff does not require that the luggage be opened. See also City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (exterior sniff of car by a dog is not a search); Jennings v. Joshua Indep. Sch. Dist., 877 F.2d 313 (5th Cir. 1989) (using trained dogs to sniff cars parked in public parking lots was not a search under Fourth Amendment); United States v. Roby, 122 F.3d 1120 (8th Cir. 1997) (use of dog to sniff rooms from hallway of hotel was not a search under Fourth Amendment); United States v. Colyer, 878 F.2d 469 (D.C. Cir. 1989) (dog sniff from public corridor for drugs in train sleeper compartment was not a search under Fourth Amendment); United States v. Vasquez, 909 F.2d 235 (7th Cir. 1990) (using dog to sniff contents of garage while dog was in public alley did not constitute a search under Fourth Amendment); United States v. Morales-Zamora, 914 F.2d 200 (10th Cir. 1990) (walking a drug dog around the exterior of a vehicle while it was lawfully stopped for a license check was not a search under Fourth Amendment); United States v. Rodriguez-Morales, 929 F.2d 780 (1st Cir. 1991) (similar ruling; impounded vehicle); State v. McLamb, 70 N.C. App. 712 (1984) (court indicated that using dogs in open fields and around abandoned vehicles did not violate Fourth Amendment).

North Carolina Supreme Court

State v. Miller, 367 N.C. 702 (2014). The court ruled that a police dog’s instinctive action, unguided and undirected by the police, that brings into plain view evidence not otherwise in plain view is not a search under the Fourth Amendment. Responding to a burglar alarm, officers arrived at the defendant’s home with a police dog, Jack. The officers deployed Jack to search the premises for intruders. Jack went from room to room until he reached a side bedroom, where he remained. When an officer entered to investigate, Jack was sitting on the bedroom floor staring at a dresser drawer, alerting the officer to the presence of drugs. The officer opened the drawer and found a brick of marijuana. Leaving the drugs there, the officer and Jack continued the protective sweep. Jack stopped in front of a closet and began barking at the closet door, alerting the officer to the presence of a human suspect. Unlike the passive sit-and-stare alert that Jack used to signal for the presence of narcotics, Jack was trained to bark to signal the presence of human suspects. Officers opened the closet and found two large black trash bags on the closet floor. When Jack nuzzled a bag, marijuana was visible. The officers secured the premises and obtained a search warrant. At issue on appeal was whether Jack’s nuzzling of the bag in the closet violated the Fourth Amendment. The court of appeals determined that Jack’s nuzzling of the bag was an action unrelated to the objectives of the authorized intrusion, creating a new invasion of the defendant’s privacy unjustified by the exigent circumstance that validated the entry. That court viewed Jack as an instrumentality of the police and concluded that “his actions, regardless of whether they are instinctive or not, are no different than those undertaken by an officer.” 228 N.C. App. 496, 503 (2013). The North Carolina Supreme Court disagreed, concluding that “Jack’s actions are different from the actions of an officer, particularly if the dog’s actions were instinctive, undirected, and unguided by the police.” 367 N.C. at 709. It ruled:

If a police dog is acting without assistance, facilitation, or other intentional action by its handler (. . . acting “instinctively”), it cannot be said that a State or governmental actor intends to do anything. In such a case, the dog is simply being a dog. If, however, police misconduct is present, or if the dog is acting at the direction or guidance of its handler, then it can be readily inferred from the dog’s action that there is an intent to find something or to obtain information. In short, we hold that a police dog’s instinctive action, unguided and undirected by the police, that brings evidence not otherwise in plain view into plain view is not a search within the meaning of the Fourth Amendment or Article I, Section 20 of the North Carolina Constitution. Therefore, the decision of the Court of Appeals that Jack was an instrumentality of the police, regardless of whether his actions were instinctive, is reversed. Id. at 713 (citation omitted).

The court remanded for the trial court to decide whether Jack’s nuzzling in this case was in fact instinctive, undirected, and unguided by the officers.

North Carolina Court of Appeals

State v. Walton, 277 N.C. App. 154 (2021). Relying on Florida v. Harris, 568 U.S. 237 (2013), summarized above under “Dogs,” “UNITED STATES SUPREME COURT,” the court found sufficient evidence of a police dog’s certification and training.

State v. Smith, 222 N.C. App. 253 (2012). On what it described as an issue of first impression in North Carolina, the court ruled that a drug dog’s positive alert at the front side driver’s door of a motor vehicle is insufficient evidence to support probable cause to conduct a warrantless search of the person of a recent passenger of the vehicle who was standing outside the vehicle.

State v. Washburn, 201 N.C. App. 93 (2009). An informant told an officer that the defendant kept a large quantity of drugs in a toolbox in his garage and rented a climate-controlled storage unit somewhere within the Kernersville town limits. The informant provided additional details about the defendant, his vehicle, and so forth. Another officer, provided with this information, went to the only climate-controlled storage facility in Kernersville. The officer had confirmed that the defendant rented a unit there as well as other details provided by the informant. With the consent of the facility’s manager, a drug dog was permitted to walk the hallway within one of the buildings containing the defendant’s unit. The dog alerted to the defendant’s unit, and officers then obtained a search warrant and searched it. Cocaine and drug paraphernalia were discovered, and officers then obtained a search warrant for the defendant’s residence and searched it. The court ruled, relying on United States v. Place, 462 U.S. 696 (1983), and other cases, that the use of the dog to sweep the common area of the storage facility did not violate the defendant’s Fourth Amendment rights. The dog sniff revealed only the presence of illegal drugs; that does not compromise any legitimate privacy interest. In addition, the officers were legally in the common hallway of the building with the consent of the facility’s manager. The defendant did not possess a reasonable expectation of privacy in the common hallway. The court also rejected the defendant’s argument that there was no nexus between the presence of cocaine in the storage unit and the existence of illegal drugs at the defendant’s residence to provide probable cause to issue a search warrant for the residence. The court discussed in its opinion the informant’s reliability and basis of knowledge

State v. Branch, 177 N.C. App. 104 (2006). Officers were conducting a driver’s license checkpoint. They stopped all cars approaching an intersection and quickly assessed whether the registration and license of each driver were valid. Officers with a drug-dog unit were available for assistance. The defendant was stopped at the checkpoint by an officer who recognized her as someone whom he had previously arrested for drug possession and whose driver’s license might be revoked. The defendant presented a duplicate driver’s license. The officer testified at the suppression hearing that duplicate licenses are often used by drivers whose originally issued licenses have been taken due to license revocations. Another officer, who was with the drug-dog unit, testified that he saw the defendant and recalled previously issuing her a citation for a moving violation for which she had failed to appear in court—an act that would normally result in a license revocation. After the two officers conferred, the defendant was directed to the side of the road so that they could check for outstanding warrants and the status of her license. While that check was being done, an officer took a drug dog for a walk around the defendant’s vehicle. The dog alerted. A search resulted in the discovery of illegal drugs and the defendant’s conviction. In the defendant’s initial appeal to the North Carolina Court of Appeals, 162 N.C. App. 707 (2004), the court ruled that there was reasonable suspicion to detain the defendant in her vehicle while the check was being done based on the interaction of two facts: presentation of a duplicate license and failure to appear in court. However, the court also ruled in the initial appeal that these facts did not support reasonable suspicion to walk the drug dog around the car’s exterior. After this ruling was issued, the United States Supreme Court ruled in Illinois v. Caballes, 543 U.S. 405 (2005), that walking a drug dog around a vehicle while the driver was lawfully detained as an officer issued a warning ticket for speeding did not violate the Fourth Amendment. The United States Supreme Court granted the State of North Carolina’s petition for a writ of certiorari to review the Branch ruling, vacated the ruling, and remanded it to the North Carolina Court of Appeals for further consideration in light of Caballes. The court of appeals on remand stated that once the lawfulness of a defendant’s detention was established, the Caballes ruling required no additional justification under the Fourth Amendment to walk a drug dog around the exterior of the defendant’s vehicle.

State v. Fisher, 141 N.C. App. 448 (2000). The court stated that a dog sniff of a vehicle’s exterior is not a search under the Fourth Amendment, citing prior state appellate cases finding that the dog sniffs of the following objects were not searches: a passenger’s luggage, State v. Odum, 119 N.C. App. 676 (1995); a briefcase, State v. McDaniels, 103 N.C. App. 175 (1991); an airplane, State v. Darack, 66 N.C. App. 608 (1984); and a safety-deposit box, State v. Rogers, 43 N.C. App. 475 (1979). The court also noted similar statements in United States v. Place, 462 U.S. 696 110 (1983), and City of Indianapolis v. Edmond, 531 U.S. 32 (2000). The court ruled, citing State v. Falana, 129 N.C. App. 813 (1998), and State v. McClendon, 130 N.C. App. 368 (1998), aff’d, 350 N.C. 630 (1999), that the officers in this case lacked reasonable suspicion to detain the defendant beyond the scope of a stop for a driving while license revoked charge; thus, the dog sniff occurred during an illegal detention and violated the Fourth Amendment.

State v. McDaniels, 103 N.C. App. 175 (1991), aff’d, 331 N.C. 112 (1992). Officers properly stopped a car and obtained the driver’s consent to search it. During the search, an officer picked up a briefcase from the floor and asked both the driver and the defendant-passenger if it was theirs. The defendant-passenger stated that the briefcase belonged to his cousin, and he objected to a search of it without a warrant. The officer placed the briefcase on the backseat and advised the driver that he wished to use a drug-detection dog, which had been brought to the scene. Neither the driver nor the defendant-passenger objected. The dog alerted positively to the presence of drugs in the briefcase, and both the driver and the defendant-passenger were arrested. The court ruled that the dog’s sniffing of the exterior of the briefcase, based on these facts, was not a search under the Fourth Amendment. The court also ruled that the dog’s positive alert to the briefcase established probable cause to issue a search warrant to search the briefcase, because the dog was properly trained and certified to alert to cocaine, heroin, marijuana, and hashish. See also United States v. Hill, 195 F.3d 258 (6th Cir. 1999) (positive alert by properly trained and reliable drug-detection dog provided probable cause to search U-Haul truck).

Federal Appellate Courts

United States v. Sturgis, 238 F.3d 956 (8th Cir. 2001). A two-hour wait for a drug dog did not violate the Fourth Amendment because officers had probable cause to arrest the detained defendant.

B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir. 1999). A dog sniff of a person is a search under the Fourth Amendment, and the suspicionless sniffing of students in this case was unreasonable. See also Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir. 1982) (similar ruling). But see Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980) (dog sniff of person is not a search).

Hearn v. Board of Public Education, 191 F.3d 1329 (11th Cir. 1999). A dog sniff of a car in a school parking lot was not a search under the Fourth Amendment. A drug dog’s alerting to a car provided probable cause to search the car without a search warrant.

United States v. Sundby, 186 F.3d 873 (8th Cir. 1999). To establish a dog’s reliability, an affidavit for a search warrant need only state that the dog has been trained and certified to detect drugs.

United States v. Reed, 141 F.3d 644 (6th Cir. 1998). Even if a drug dog instinctively opened a dresser drawer when alerting to illegal drugs inside and an officer thereby made a plain-view observation inside the drawer, the dog’s action—absent the officer’s misconduct—did not violate the Fourth Amendment.

United States v. Jeffus, 22 F.3d 554 (4th Cir. 1994). The use of a drug dog to walk around the defendant’s car while it was lawfully stopped for a traffic offense was not a search under the Fourth Amendment. When the dog alerted positively for the presence of drugs, officers had probable cause to search the car without a search warrant.

United States v. Ludwig, 10 F.3d 1523 (10th Cir. 1993). The use of a drug dog to randomly sniff vehicles in a motel parking lot open to the public was not a search under the Fourth Amendment. The dog’s alerting to the defendant’s car in the parking lot gave an officer probable cause to conduct a warrantless search of the car.

Thermal Imagers

(This topic is discussed in the chapter text under “Thermal Imagers.”)

UNITED STATES SUPREME COURT

Kyllo v. United States, 533 U.S. 27 (2001). A law enforcement officer suspected that marijuana was being grown in a person’s home. The officer used a thermal imager to scan the home while in his vehicle on a public street. Based on tips from informants, utility bills, and the results of the thermal imaging, a judge issued a search warrant to authorize a search of the home, which revealed more than one hundred marijuana plants. The Court ruled that the use of a thermal imager aimed at a private home from a public street to detect the relative amounts of heat within a home constitutes a search under the Fourth Amendment. The Court stated that obtaining by sense-enhancing technology any information concerning the interior of a home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search—at least when, as in this case, the technology in question is not in general public use. [Author’s note: The Court’s ruling requires probable cause and a search warrant to conduct thermal imaging of a home, absent exigent circumstances to excuse the requirement of a search warrant.] See also United States v. Elkins, 300 F.3d 638 (6th Cir. 2002) (court notes but does not decide issue of whether Kyllo ruling applies to use of thermal imager directed at commercial building).

Recording of Conversations When One Party Consents

UNITED STATES SUPREME COURT

United States v. White, 401 U.S. 745 (1970). No Fourth Amendment violation occurred when government agents listened to conversations between the defendant and a cooperating informant, who had a radio transmitter concealed on his person. See also United States v. Caceres, 440 U.S. 741 n.2 (1979); On Lee v. United States, 343 U.S. 747 (1952).

Lopez v. United States, 373 U.S. 427 (1963). No Fourth Amendment violation occurred when an undercover federal agent secretly recorded his conversation with the defendant in the defendant’s office.

NORTH CAROLINA SUPREME COURT

State v. Levan, 326 N.C. 155 (1990). The court adopted under the North Carolina Constitution various rulings of the United States Supreme Court that permit law enforcement officers to use an agent to secretly record pre-arrest conversations with a defendant—see, for example, United States v. White, 401 U.S. 745 (1970), discussed immediately above.

FEDERAL APPELLATE COURTS

United States v. Miller, 720 F.2d 227 (1st Cir. 1983). No violation of the Fourth Amendment or the federal wiretapping law occurred when only one party to a telephone conversation consented to the recording of the conversation. See also State v. Branch, 288 N.C. 514 (1975); State v. Thompson, 332 N.C. 204 (1992). [Author’s note: The state wiretapping law, G.S. 15A-287(a), is the same as the federal wiretapping law on this issue.]

Obtaining a Customer’s Bank Records

(This topic is discussed in the chapter text under “Bank Records.”)

UNITED STATES SUPREME COURT

United States v. Miller, 425 U.S. 435 (1976). A depositor has no reasonable expectation of privacy in copies of checks and other bank records that are in the bank’s possession.

NORTH CAROLINA SUPREME COURT

In re Superior Court Order, 315 N.C. 378 (1986). [Author’s note: Since this case was decided, legislation—G.S. 53B-1 through -10—was enacted that now regulates access to a customer’s financial records. These statutory provisions must be followed. See the discussion in the chapter text at note 192. A superior court judge has the inherent power to order a bank to disclose a customer’s bank account records if reasonable suspicion exists that a crime was committed and that the records probably will relate to the investigation of that crime (but the court found that the district attorney’s petition in this case failed to set out facts to support such an order). A judge also may order the bank not to disclose the examination of records to the customer for a specified period if the judge finds that the disclosure could impede the investigation. (Of course, if probable cause existed that a crime had been committed, a search warrant to seize the records could be obtained or—if a criminal charge was pending in court—a subpoena could be issued to the bank to produce the records).

FEDERAL APPELLATE COURTS

United States v. Kington, 801 F.2d 733 (5th Cir. 1986). Congress did not intend that evidence obtained in violation of the federal Right to Financial Privacy Act (12 U.S.C. Chapter 35) be suppressed when it did not authorize that remedy; therefore, suppression is inappropriate. The rationale of this ruling would likely apply to a violation of North Carolina’s Financial Privacy Act (G.S. 53B-1 through -10, discussed in the chapter text at note 192).

Prison or Jail Cell, Mail, and Telephone Calls

NORTH CAROLINA SUPREME COURT

State v. Wiley, 355 N.C. 592 (2002). The defendant, a jail inmate awaiting trial for first-degree murder, asked jail personnel to give an unsealed letter to the defendant’s father, who had visited the defendant and was still in the waiting room. Pursuant to jail policy concerning incoming and outgoing mail that does not have the words “legal mail” written on it and is not addressed to an attorney, a deputy sheriff scanned the letter to ascertain that there was no contraband or information concerning a jail break or possible harm to jail personnel and to make sure that inmates were not communicating between cell blocks. (Inmates are informed of the mail policy when they enter the jail and commonly leave their nonlegal mail unsealed because they are aware that it will be examined by jail personnel.) The deputy sheriff noticed information in the letter related to the pending murder trial. He made a copy of the letter, gave the original to the defendant’s father, and gave the copy to the State’s investigators.

The court ruled, citing Stroud v. United States, 251 U.S. 15 (1919), and several other federal and state cases, that the defendant did not have a reasonable expectation of privacy in his nonlegal mail. The court stated that when prisoners or pretrial detainees are made aware that their nonlegal mail will be subject to scrutiny before reaching its intended recipient, pursuant to institutional policies to maintain order and safety, later examination of such mail does not violate their Fourth Amendment rights. Copying and forwarding such mail also does not violate the Fourth Amendment. For an analysis of mail regulation in jails, see Jamie Markham, Mail Regulation in the Jail, N.C. Crim. L.: A UNC Sch. of Gov’t Blog (Dec. 7, 2015), http://nccriminallaw.sog.unc.edu/mail-regulation-in-the-jail/.

State v. Martin, 322 N.C. 229 (1988). The court applied the ruling of Hudson v. Palmer, 468 U.S. 517 (1984) (prisoner has no reasonable expectation of privacy in a prison cell), to a pretrial detainee’s jail cell and ruled that a jailer’s search of the cell and his reading of the defendant’s notebook and discovery of a letter to the defendant’s brother urging him to commit perjury at trial did not violate the Fourth Amendment. The jailer could have read something in the notebook that would have enabled him to better maintain order in the jail.

NORTH CAROLINA COURT OF APPEALS

State v. Troy, 198 N.C. App. 396 (2009). The defendant was being held at a detention center in South Carolina. When he made telephone calls on March 31, 2002, both he and the person he called heard a recorded message that stated, “[t]his call is subject to being monitored and recorded. Thank you for using Evercom.” A fellow inmate arranged three-way telephone calls on behalf of the defendant on April 2 and April 4, 2002. The defendant sought to suppress the contents of the recorded April telephone calls because he was not provided with a recorded message that his conversations could be monitored or recorded. The court ruled, relying on State v. Price, 170 N.C. App. 57 (2005), that the recordings of the April telephone conversations did not violate federal or state eavesdropping laws because the defendant impliedly consented to the recordings. The defendant was aware from the March 31, 2002, calls that telephone calls from the detention center were subject to being recorded.

State v. Hocutt, 177 N.C. App. 341 (2006). While in jail, the defendant made incriminating statements over the phone to his girlfriend and to his brother, which were recorded pursuant to jail policy. Inmates receive an informational handbook concerning this policy, notices are posted in the cell blocks telling inmates that their telephone calls are monitored, and before being connected, both the caller and the person being called hear a recorded warning that “all calls are subject to monitoring and recording,” except for “attorney calls.” The court ruled that the defendant’s recorded jail telephone conversations were properly obtained under the Fourth, Sixth, and Fourteenth Amendments.

State v. Price, 170 N.C. App. 57 (2005). While in jail awaiting trial, the defendant placed telephone calls to his mother. The jail’s phone system played, for all outgoing calls from the jail, a recording heard by both parties to the call that stated in pertinent part: “This call is subject to monitoring and recording.” These calls were recorded—as were all inmate calls at the jail—and introduced into evidence at the defendant’s trial. The court ruled that the defendant impliedly consented under both federal and state law to the monitoring and recording of the telephone calls.

State v. Fuller, 166 N.C. App. 548 (2004). Jail personnel seized and read the defendant’s letters that were not marked “legal,” were given to them to be mailed with the outgoing mail, and were not addressed to an attorney. The court ruled, relying on State v. Wiley, 355 N.C. 592 (2002), that the defendant did not have a reasonable expectation of privacy in the letters and that his Fourth Amendment rights were not violated. The court also ruled, relying on State v. Wallace, 162 N.C. 623 (1913), that letters the defendant wrote to his wife, which contained derogatory remarks about an alleged victim of the defendant, were not inadmissible (at the defendant’s trial for several sex offenses) under the marital communications privilege when a third party—jail personnel lawfully in possession of the letters and authorized to read them—was effectively a party to the communication. See also State v. Martin, 322 N.C. 229 (1988), discussed above under “Prison or Jail Cell, Mail, and Telephone Calls,” “NORTH CAROLINA SUPREME COURT;” Wiley, 355 N.C. 592, discussed above under “Prison or Jail Cell, Mail, and Telephone Calls,” “NORTH CAROLINA SUPREME COURT;” State v. Kennedy, 58 N.C. App. 810 (1982) (the defendant, who was not an inmate, wrote and mailed a letter to a prison inmate; a correctional officer following routine procedure opened the letter and examined it for contraband; he saw a reference to a shotgun in the letter and read further, and the letter revealed the defendant’s participation in an armed robbery; the officer gave the letter to a police officer; the court ruled that the sender of the letter had no reasonable expectation of privacy in the letter); Altizer v. Deeds, 191 F.3d 540 (4th Cir. 1999) (opening and inspection of inmate’s outgoing nonlegal mail is reasonably related to legitimate penological interests and is constitutional); and Lavado v. Keohane, 992 F.2d 601 (6th Cir. 1993) (opening incoming prisoner mail pursuant to uniform policy is constitutional).

FEDERAL APPELLATE COURTS

Willis v. Artuz, 301 F.3d 65 (2d Cir. 2002). The warrantless search of a convicted prisoner’s cell, conducted at the request of officers who were seeking evidence of an uncharged crime, did not violate the prisoner’s Fourth Amendment rights, even though the search did not serve any purpose related to prison security. The court distinguished United States v. Cohen, 796 F.2d 20 (2d Cir. 1986) (pretrial detainee’s Fourth Amendment rights were violated when prosecutor instigated warrantless search of jail to obtain evidence for pending trial).

United States v. Peoples, 250 F.3d 630 (8th Cir. 2001). The recording of conversations between an inmate and visitor made with an internal communication device (physically resembling a telephone handset) and used while the visitor and inmate were separated by a glass partition was not a violation of federal eavesdropping law because neither party had a reasonable expectation of privacy.

Angel v. Williams, 12 F.3d 786 (8th Cir. 1993). The tape recording of conversations between law enforcement officers and a prisoner in a jail did not violate federal wiretapping law because the officers and the prisoner did not have a reasonable expectation of privacy that their conversations would not be intercepted.

United States v. Feekes, 879 F.2d 1562 (7th Cir. 1989). The tape recording of all prisoners’ telephone calls to people outside the prison (except to their lawyers) under federal Bureau of Prisons’ regulations falls within an exception to the federal wiretapping law, 18 U.S.C.A. § 2510(5)(ii). Therefore, the recording of a prisoner’s telephone call to a nonlawyer did not violate the law. For cases discussing the legality of intercepting or recording telephone calls of prisoners and inmates and conversations within prisons and jails, see United States v. Footman, 215 F.3d 145 (1st Cir. 2000) (court upholds recording of prisoner’s telephone calls based on (1) prisoner’s consent to recording; (2) prior notice that is given to all prisoners that their calls, except to designated attorneys, will be recorded; and (3) fact that each prisoner in prison facility signed a form reflecting that understanding); United States v. Hammond, 286 F.3d 189 (4th Cir. 2002); United States v. Daniels, 902 F.2d 1238 (7th Cir. 1990); United States v. Harrelson, 754 F.2d 1153 (5th Cir. 1985); United States v. Noriega, 917 F.2d 1543 (11th Cir. 1990); United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991); United States v. Willoughby, 860 F.2d 15 (2d Cir. 1988); United States v. Amen, 831 F.2d 373 (2d Cir. 1987); United States v. Paul, 614 F.2d 115 (6th Cir. 1980); United States v. Sababu, 891 F.2d 1308 (7th Cir. 1989); and Campiti v. Walonis, 611 F.2d 387 (1st Cir. 1979).

Use of Lawfully Taken Blood Sample in Unrelated Investigation

NORTH CAROLINA COURT OF APPEALS

State v. Barkley, 144 N.C. App. 514 (2001). The defendant was convicted of first-degree rape. DNA evidence was introduced at trial that had been obtained from a blood sample the defendant had voluntarily given to law enforcement officers in an investigation of an unrelated murder. The court ruled, relying on cases from other jurisdictions, that a blood sample lawfully obtained in the investigation of one crime may be used as evidence in the prosecution of an unrelated crime without any additional justification under the Fourth Amendment. The court stated that once the blood was lawfully drawn from the defendant’s body, he no longer had a possessory interest in it. The court also examined the facts surrounding the defendant’s consent to give a blood sample in the murder investigation and ruled that a reasonable person would have understood by his or her conversation with an investigating law enforcement officer that his or her blood analysis could be used generally for investigative purposes and was not limited to the murder investigation.

Search and Seizure by Valid Consent

(This topic is discussed in the chapter text under “Search and Seizure by Valid Consent.”)

Voluntariness

(This topic is discussed in the chapter text under “Voluntariness of the Expression.”)

Generally

United States Supreme Court

United States v. Drayton, 536 U.S. 194 (2002). Three law enforcement officers—dressed in plain clothes, carrying concealed weapons, and displaying visible badges—boarded a bus while it was stopped at a bus terminal. One officer knelt at the driver’s seat (the bus driver was not in the bus) without blocking the aisle or obstructing the bus exit, while two officers went to the rear of the bus. One officer stayed there while the other worked his way toward the front, speaking to passengers as he went. To avoid blocking the aisle, the officer stood next to or just behind each passenger with whom he spoke. He explained that the officers were conducting a bus interdiction to deter drugs and illegal weapons from being transported on the bus. He did not inform passengers of their right to refuse to cooperate. Defendants Drayton and Brown were seated together. Brown consented to a search of a bag in the overhead luggage rack, which revealed no contraband. The officer noted that both defendants were wearing heavy jackets and baggy pants despite the warm weather. Due to his experience, the officer knew that drug traffickers often use baggy clothing to conceal weapons or narcotics. The officer received consent from Brown to search his person after asking, “Do you mind if I check your person?” He found hard objects similar to drug packages that he had detected on other occasions and arrested Brown. The officer then received consent from Drayton after asking, “Mind if I check you?” He discovered the same hard objects and arrested Drayton.

The Court ruled that (1) the officers did not seize the defendants during this bus-boarding procedure—a reasonable person would have felt free to terminate the encounter with the officer; (2) the Fourth Amendment does not require officers to advise bus passengers of their rights not to cooperate and to refuse to consent to searches; and (3) the defendants voluntarily consented to the search of their luggage and their bodies.

Ohio v. Robinette, 519 U.S. 33 (1996). An officer stopped the defendant for speeding. The defendant gave his driver’s license to the officer, who ran a computer check that revealed that the defendant had no prior violations. The officer then asked the defendant to step out of his car, issued a verbal warning to the defendant, and returned his license. The officer asked the defendant if he had any illegal contraband in his car, and the defendant said “no.” The officer then asked the defendant if he could search his car, and the defendant consented.

The Court rejected a lower court ruling that an officer must advise a lawfully seized defendant that the defendant is free to go before a consent to search will be recognized as voluntary. The Court noted that the Fourth Amendment requires that a consent to search must be voluntary, and voluntariness is a question of fact that must be determined from all the circumstances. An officer’s warning before obtaining consent to search is not required by the Fourth Amendment for a consent to search to be valid.

Florida v. Bostick, 501 U.S. 429 (1991). Two officers boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. They asked the defendant-passenger (for whom they did not have reasonable suspicion of criminal activity) for permission to inspect his ticket and identification. He consented. The ticket, from Miami to Atlanta, matched the defendant’s identification and was returned to him. The officers explained that they were narcotics agents looking for illegal drugs, and they requested the defendant’s consent to search his luggage. He consented. The Florida Supreme Court ruled that the bus boarding was an illegal seizure of the passengers and that, therefore, the defendant’s consent to search his luggage was tainted by the illegal seizure of the defendant.

The Court, reversing and remanding, noted two facts: (1) the officers specifically advised the defendant that he had a right to refuse to consent [Author’s note: Although this fact may be relevant to the seizure issue in this case, such a warning is not required when obtaining consent to search; see Schneckloth v. Bustamonte, 412 U.S. 218 (1973), discussed below.] and (2) although one officer carried a zipper pouch containing a pistol, the pistol was never removed from the pouch, pointed at the defendant, or otherwise used in a threatening manner. The Court rejected a per se rule adopted by the Florida Supreme Court that bus passengers are seized when officers board a bus because the passengers do not feel free to leave the bus to avoid the officers’ questioning. The Court also rejected, in analyzing whether the facts of this case constituted a seizure, the definition of a seizure set forth in Michigan v. Chesternut, 486 U.S. 567 (1988), which provided that a seizure occurs when a reasonable person would reasonably believe that he or she is not “free to leave.” Because the defendant was a passenger on a bus that was scheduled to depart, he would not have felt free to leave the bus even if the officers had not been present. His movements were essentially confined as the natural result of his decision to take the bus—which is not related to the issue of whether the officers’ conduct was coercive. The Court ruled that the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter. It stated that this inquiry applies equally to all encounters that occur on streets, on trains, at airports, and so forth. The Court also rejected the defendant’s argument that he must have been seized because a reasonable person would not freely consent to a search of luggage that the person knows contains drugs: the Court ruled that the proper “reasonable person” test presupposes an innocent person.

United States v. Watson, 423 U.S. 411 (1976). The defendant was arrested in a restaurant and removed to the street, where he gave officers consent to search his nearby car. The fact that the defendant consented while he was in custody and was not informed that he could withhold consent was insufficient to show that consent was involuntary, when no other evidence indicated that it was involuntary.

Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The Court ruled that the defendant consented to a search of his car after an officer validly stopped it. Whether consent to search is voluntarily given is determined by the totality of circumstances. The State need not prove that the person who consented to the search knew of the right to refuse to consent, although such knowledge is a factor that may be considered in determining voluntariness. An officer need not give any warning of rights before obtaining consent.

Amos v. United States, 255 U.S. 313 (1921). The defendant’s wife was, by implication, coerced into giving consent to revenue officers when they came to the defendant’s (and presumably the wife’s) home and told her that they had come to search the premises, including a store, for revenue violations and she simply opened the store to let them in. Illicitly distilled whisky was found in both the home and the store.

North Carolina Supreme Court

State v. Pearson, 348 N.C. 272 (1998). Officer A stopped a car on an interstate highway that had been drifting back and forth within its lane and traveling below the speed limit. The defendant was the driver of the car, and there was a female passenger. Officer A asked the defendant to leave the vehicle and come to his patrol car. Officer A noticed that the defendant had a slight odor of alcohol about him, acted nervous, and had a rapid heart rate while in the patrol car. Officer A determined, however, that the defendant was tired, not impaired by alcohol. The defendant said that he and his fiancée had left the Charlotte area the day before and had spent the night at his parents’ home in Virginia. Officer A then talked to the passenger, who was seated in the defendant’s car. She said that the couple had spent the previous night in New York visiting the defendant’s parents. Officer A did not see any drugs or weapons in the defendant’s car. Officer A then returned to his patrol car and received the defendant’s written consent to search his car. Officer B arrived and was asked by Officer A to frisk the defendant while Officer A searched the defendant’s car. The officers testified at the suppression hearing that the defendant was frisked because it was standard procedure to do so when a vehicle is searched.

The court ruled that this evidence was insufficient to establish reasonable suspicion to frisk the defendant. The court noted that the defendant was polite and cooperative. The officers were not aware that the defendant had a criminal record or drug background. The defendant had not made any movement or statement that would indicate that he had a weapon. Neither the defendant’s nervousness nor the variance in the statements of the defendant and his fiancée were sufficient to justify the frisk. The court distinguished State v. McGirt, 122 N.C. App. 237 (1996), aff’d, 345 N.C. 624 (1997). The court also ruled that the defendant did not consent to be frisked. The written consent form authorized a search only of the defendant’s vehicle, not a search of his person. Also, the defendant’s acquiescence when Officer B told him he would frisk him was not consent, considering the circumstances of this case.

State v. Smith, 346 N.C. 794 (1997). Officers received information that illegal drugs were located in a suitcase in a bedroom in the defendant’s house. The source of the information, the defendant’s girlfriend who shared a bedroom with the defendant, told the officers that she would consent to a search. Officers decided to seek consent to search the house because they believed that they lacked probable cause to obtain a search warrant—officers refer to the procedure of approaching a house to ask for consent to search as a “knock and talk.” Officers arrived at the house with a drug dog. One of the residents (a person who lived there but who was not the girlfriend or the defendant) let them into the house. The girlfriend allowed the officers’ entry into and search of the bedroom she shared with the defendant. The drug dog alerted, and the officers seized illegal drugs there. The court, relying on Schneckloth v. Bustamonte, 412 U.S. 218 (1973), ruled that officers who approach a residence with the intent to obtain consent to conduct a warrantless search do not violate the Fourth Amendment by simply using such a procedure. [Author’s note: This ruling would apply whether or not the officers had probable cause to obtain a search warrant; see the court’s excerpt from Schneckloth included in its opinion.] See also United States v. Cephas, 254 F.3d 488 (4th Cir. 2001) (similar ruling). The court also noted that the officers’ subjective state of mind in using such a procedure is irrelevant, citing Whren v. United States, 517 U.S. 806 (1996). The court remanded the case to superior court so that the judge there could make specific factual findings on the voluntariness of the consent given to the officers by the girlfriend.

State v. Williams, 314 N.C. 337 (1985). Considering all the circumstances in this case, an officer’s statement to the defendant that the district attorney would be informed of his cooperation was not the factor that induced him to consent to a search of his car. There was no evidence that the defendant believed that he could expect easier treatment if he consented.

State v. Fincher, 309 N.C. 1 (1983). The defendant voluntarily and understandingly consented to a search of his bedroom, although he was 17 years old and had a low IQ and although officers told him that if he refused to give consent, they would obtain a search warrant and conduct a search anyway.

State v. Brown, 306 N.C. 151 (1982). The fact that officers obtained a search warrant for the defendant’s apartment after the defendant voluntarily consented to a search does not negate the consent originally given, and—assuming the search warrant was valid—the State could justify a search of the apartment on either ground.

State v. Cobb, 295 N.C. 1 (1978). When a defendant is in custody at the time he or she consents to a search, the State has a greater burden to show that consent was voluntary. In this case, evidence—including signed consent forms—proved that consent was voluntarily given.

State v. Long, 293 N.C. 286 (1977). A specific warning about Fourth Amendment rights is not necessary to validate a consent to search, even when the defendant is in custody. See also State v. Christie, 96 N.C. App. 178 (1989) (consent to search luggage during bus boarding was valid, even though defendant was not informed of his right to refuse to consent to search).

State v. Woods, 286 N.C. 612 (1975). No search occurred when the defendant’s wife voluntarily took her mother and officers to the trailer where she and the defendant lived, took two rings from her blue jeans in her bedroom, and gave them to the officers. See also State v. Reams, 277 N.C. 391 (1970) (no search occurred when defendant’s wife removed his shotgun from a closet and gave it to an officer); Coolidge v. New Hampshire, 403 U.S. 443 (1971) (similar ruling).

North Carolina Court of Appeals

State v. Falls, 275 N.C. App. 239 (2020). After receiving an anonymous drug complaint and obtaining information that the defendant was a felon in possession of a firearm, officers decided to conduct a knock and talk at the defendant’s residence. The court considered the following factors to distinguish a knock and talk from a search: (1) how law enforcement approached a home, (2) the hour at which they did so, and (3) whether there were any indications that the occupant of the home welcomed uninvited guests onto his or her property. The court noted that the officers conducted the knock and talk at night, when people do not expect to be called upon at their homes unexpectedly, and that this practice was not customary for the officers. Additionally, the officers parked their vehicles in an adjacent lot, approached the defendant’s home in the dark, dressed in dark clothing, and cut through trees rather than parking in the driveway or street and proceeding toward the home along the paved path. The officers also passed directly by a plainly visible “no trespassing” sign that indicated the defendant’s yard was not open to public visitors. Based on these factors, the court determined that the officers’ conduct violated the Fourth Amendment because they strayed beyond the permissible bounds of a knock and talk. Therefore, the later seizure of evidence was not justified under the plain-view doctrine.

State v. Bartlett, 260 N.C. App. 579 (2018). The court ruled that the trial court properly denied the defendant’s motion to suppress heroin discovered following a search of the defendant during a traffic stop. A tactical narcotics officer noticed a Lincoln sedan weaving in and out of heavy traffic at high speeds, nearly causing multiple collisions. The vehicle pulled into a Sonic Drive-In parking lot next to an unoccupied Honda. The defendant, a passenger in the Lincoln, exited the vehicle, approached the Honda, and placed his hand inside the passenger window of that vehicle. The driver of the Honda appeared and spoke with the defendant briefly. The defendant then returned to the Lincoln and the vehicle drove away. No one in the Lincoln had ordered any food. Based on his experience, the officer concluded that the defendant had participated in a drug transaction. Other officers then saw the Lincoln go to a gas station. A second officer radioed that the vehicle continued to be driven in a careless and reckless manner, at approximately fifteen m.p.h. over the speed limit. After the vehicle left the gas station, the first officer stopped it for reckless driving and speeding. Four other officers participated in the stop; all five officers were in uniform. The first officer approached the passenger side of the vehicle, while two others approached the driver’s side. The officer approaching the passenger side saw the defendant reach toward the floorboard. Because he did not know whether the defendant had a weapon or was trying to conceal contraband, the officer asked the defendant to show him his hands. The defendant raised his hands, which were daubed in a light pink substance that the defendant stated was fabric softener. The officer ordered the defendant out of the vehicle and asked whether he was attempting to conceal something. The defendant denied doing so. The officer testified that when he asked for the defendant’s consent to search his person the defendant gave consent, saying, “go ahead.” The defendant testified that he never consented to a search. When the officer proceeded to pat down the defendant, he noticed a larger than normal bulge near the groin area that was not consistent with “male parts.” The officer then detained the defendant in handcuffs, believing that he had contraband on his person. The officer asked the defendant if he had anything inside of his underwear, and the defendant said that he did. The officer asked the defendant if he would retrieve the item, and the defendant said that he would. The officer removed the handcuffs, and the defendant reached into his pants and produced a plastic bag containing heroin. He was then placed under arrest.

The court first found that the defendant consented to the search, rejecting the defendant’s argument that his consent was not voluntary given the coercive environment fostered by the police. The defendant argued that his race was highly relevant to the determination of whether he voluntarily consented to the search because people of color will view a “request” to search by the police as an inherently coercive command, and he cited various studies in support of this claim. The court agreed that the defendant’s race may be a relevant factor in considering whether consent was voluntary. It found, however, that aside from the studies presented by the defendant, the record was devoid of any indication that the defendant’s consent in this case was involuntary. To the contrary, the circumstances showed that the defendant’s consent was freely and intelligently made. Although multiple officers were present, only the first officer interacted with the defendant. When the officer approached the vehicle, he asked the defendant whether he had anything illegal, and the defendant said that he did not. The officer then asked if he could search the defendant’s person, to which the defendant responded, “go ahead.” No other conversation occurred. There is no evidence that the defendant was unaware of his ability to refuse the request or that he feared retribution had he done so. There is no indication that the officer made threats, used harsh language, or raised his voice. There is no evidence of any physical contact with the defendant. Additionally, the officers’ firearms remained holstered throughout the encounter.

The court next rejected the defendant’s argument that the scope of his consent to search his person did not include a frisk of his private parts and that, lacking probable cause or exigent circumstances to justify such a search, the pat-down of his groin area was unconstitutional. The court concluded that because the defendant’s consent encompassed the sort of limited frisk that was performed, neither probable cause nor exigency was required to justify the search. The pat-down of the defendant’s groin area was within the bounds of what a reasonable person would have expected the search to include. The officer limited his pat-down to the outer layer of the defendant’s clothing. He did not reach into the defendant’s pants to search his undergarments or directly touch his groin area. Nothing about the search involved the exposure of the defendant’s private parts to the officer or to the public. And there was no evidence that the groin pat-down was conducted in an unreasonably offensive manner. Thus, the court concluded that a reasonable person in the defendant’s position would have understood his consent to include the sort of limited outer pat-down that was performed here.

Finally, the court rejected the defendant’s argument that the officer’s continued detention of him after searching his groin area was not justified by the plain-feel doctrine. During the pat-down, the officer felt a bulge that he determined was not consistent with male body parts and was obviously contraband. When coupled with the totality of the circumstances already observed by the officer, this discovery amounted to reasonable suspicion justifying further detention of the defendant to question him about the contents of his clothing.

State v. Parker, 256 N.C. App. 319 (2017). The court ruled that the defendant’s consent to search his person was not voluntary when it was given during a period of unlawful detention. Believing that a confrontation between the defendant and a woman was going to escalate into a fight after observing the two yelling at each other in a driveway, officers approached and asked for the defendant’s identification. In the process of de-escalating the situation, an officer checked the defendant’s record and verified that he had no pending warrants. Without returning his identification, the officer asked for and received the defendant’s consent to search his person. The court determined that under these circumstances the defendant’s consent was not given voluntarily, reasoning that the officers unlawfully detained the defendant by retaining his identification after they had satisfied the purpose of the initial detention.

State v. Cobb, 248 N.C. App. 687 (2016). In this drug case, the court ruled that the defendant’s consent to search his room in a rooming house was voluntarily given. The court rejected the defendant’s argument that he was in custody when consent was given. There was no evidence that the defendant’s movements were limited by officers during the encounter. Also, the officers did not supervise the defendant while they were in the home; rather, they simply followed the defendant to his room after he gave consent to search.

State v. McMillan, 214 N.C. App. 320 (2011). The court ruled that officers advising the defendant that if he did not consent to giving oral swabs and surrendering certain items of clothing they would detain him until they obtained a search warrant did not negate the defendant’s voluntary consent to the seizure of those items.

State v. Boyd, 207 N.C. App. 632 (2010). The court ruled that the defendant voluntarily consented to allow officers to take a saliva sample for DNA testing. The defendant was told that the sample could be used to exonerate him in ongoing investigations of break-ins and assaults on women that occurred in Charlotte in 1998. The defendant argued that because the detective failed to inform him of all the charges that were being investigated—specifically, rape and sexual assault—his consent was involuntary. Following State v. Barkley, 144 N.C. App. 514 (2001), the court rejected this argument. The court concluded that the consent was voluntary even though the defendant did not know that the assaults were of a sexual nature and that a reasonable person in the defendant’s position would have understood that the DNA could be used generally for investigative purposes.

State v. Medina, 205 N.C. App. 683 (2010). A warrantless search of the defendant’s car was valid on grounds of consent. The court rejected the defendant’s argument that his consent was invalid because the officer who procured it was not fluent in Spanish. The court noted that the defendant was nonresponsive to initial questions posed in English but that he responded when spoken to in Spanish. The officer asked simple questions about weapons or drugs, and when he gestured to the car and asked to “look,” the defendant nodded in the affirmative. Although not fluent in Spanish, the officer had Spanish instruction in high school and college and the two conversed entirely in Spanish for periods of up to thirty minutes. The officer asked open-ended questions, which the defendant answered appropriately. The defendant never indicated that he did not understand a question. The court also rejected the defendant’s argument that his consent was invalid because the officer wore a sidearm while seeking the consent, concluding that the mere presence of a holstered sidearm does not render consent involuntary.

State v. McLeod, 197 N.C. App. 707 (2009). Officers responded to a disturbance between the defendant and his mother at a residence where both lived. After speaking with and calming both, the officers left. Within thirty minutes, the officers were called to the residence again. The defendant was locked out of the residence and sitting in the garage area. Officer A went into the residence and spoke with the mother. Officer B remained with the defendant. The mother told Officer A that the defendant had a gun in his bedroom. Officer A then went outside to Officer B. The defendant was asked if he had a weapon, and he responded that there was a gun in the house under his bed. After receiving this information, both officers accompanied the defendant inside the residence and went to the defendant’s bedroom and seized the gun. The court ruled, relying on United States v. Hylton, 349 F.3d 781 (4th Cir. 2003), that the officers had implied consent to enter the house and search for and seize the defendant’s gun. The court reasoned that both the defendant and his mother gave consent through their words and actions.

State v. Kuegel, 195 N.C. App. 310 (2009). After receiving information that the defendant was selling marijuana and cocaine from his apartment, an officer decided to go to the apartment to conduct a knock and talk. Two other officers stationed themselves about three houses away. The officer identified himself and told the defendant that he knew the defendant had both marijuana and cocaine in the apartment and wanted his consent to search it without a search warrant. He untruthfully told the defendant that he had conducted surveillance of the apartment, had seen a lot of people coming and going, had stopped people’s cars after they left the neighborhood, and had recovered either marijuana or cocaine each time he stopped someone. The defendant said, “What if I give you what I got?” The officer explained that he needed to find all the drugs inside the apartment and said that if the defendant did not feel comfortable giving consent to search, he would leave two officers at the apartment and apply for a search warrant. The defendant asked, “If I cooperate, what will you do for me?” The officer replied that he could not make any promises, but if the defendant did not have a kilo or a dead body in the apartment, he might be able to keep him out of jail for the holiday (it was December 21). The defendant invited the officers in and agreed to show them where everything was.

The defendant argued on appeal that his consent to search was not voluntary because it was the product of the officer’s deceptive practices. The court ruled, relying on State v. Sokolowski, 344 N.C. 428 (1996) (no coercion when eight officers disarmed defendant before asking consent to search), State v. Fincher, 309 N.C. 1 (1983) (no coercion when officers told defendant that if he did not consent, officers would get search warrant and search anyway), and State v. Barnes, 154 N.C. App. 111 (2002) (officer’s deception in telling pedophile that victim was pregnant, in effort to elicit confession, was not sufficient to overcome defendant’s will and render confession inadmissible), that the defendant’s consent to search was voluntary based on the totality of circumstances.

State v. Jacobs, 162 N.C. App. 251 (2004). The defendant was convicted of several drug offenses. An officer stopped the defendant’s vehicle, detained him for about three to five minutes, received consent to search the vehicle, and discovered evidence in the car and on the defendant’s person. The court rejected the defendant’s argument that the State failed to establish that the officer had reasonable suspicion to request the defendant’s consent to search the vehicle. The State only needs to show that a consent to search is voluntary; neither reasonable suspicion nor probable cause is a prerequisite for an officer’s asking for consent to search.

State v. Graham, 149 N.C. App. 215 (2002). Officers responded to a tip reporting drug activity at an apartment. They entered with consent and stated their intention to search for drugs and pat down the occupants for weapons. They noticed that the defendant continuously reached into his pants pocket. The defendant responded “no” to an officer’s question about whether he had anything in his pocket. When the officer asked the defendant if she could check his pants pocket, he stood up and raised his hands away from his body, making a gesture that the officer understood to mean consent. Shortly thereafter, the defendant allowed the officer to search his pocket. The officer found a folded $20 dollar bill with a lump in it. Based on her training and experience, she knew that to be consistent with the way drugs are packaged or concealed. She unfolded the bill and found crack cocaine. The court ruled that proper consent was obtained because nonverbal conduct intended as an assertion is a “statement” giving consent to search under G.S. 15A-221(b).

State v. Crenshaw, 144 N.C. App. 574 (2001). The defendant’s vehicle was stopped for an inoperable taillight and illegal parking in an area known for drug activity. One of the officers involved with the stop of the vehicle knew that the defendant previously had been convicted of possession of a firearm by a felon. The officers checked his license and registration, which were valid. They then ordered the defendant out of his vehicle and frisked him. The court ruled, relying on State v. Butler, 331 N.C. 227 (1992), that the duration of the vehicle stop beyond the initial stop was reasonable based on the officers’ familiarity with the defendant, the defendant’s presence in an area known for drug activity, and the defendant’s having been illegally parked. The officers testified at the suppression hearing that the defendant verbally consented to a search of his vehicle by answering “okay” when one of the officers stated that he wanted to search the vehicle. The defendant did not offer any evidence to refute the voluntariness of his consent. The court ruled that evidence supported the trial judge’s ruling that the consent to search was voluntary.

State v. Barkley, 144 N.C. App. 514 (2001). The defendant was convicted of first-degree rape. DNA evidence that had been obtained from a blood sample the defendant had voluntarily given to law enforcement officers in an investigation of an unrelated murder was introduced at trial. The court ruled, relying on cases from other jurisdictions, that a blood sample lawfully obtained in the investigation of one crime may be used as evidence in the prosecution of an unrelated crime without any additional justification under the Fourth Amendment. The court stated that once the blood was lawfully drawn from the defendant’s body, he no longer had a possessory interest in it. The court also examined the facts surrounding the defendant’s consent to give a blood sample in the murder investigation and ruled that a reasonable person would have understood by his or her conversation with an investigating law enforcement officer that his or her blood analysis could be used generally for investigative purposes and was not limited to the murder investigation.

State v. Schiffer, 132 N.C. App. 22 (1999). An officer saw a vehicle with windows and a windshield that he believed to be tinted darker than permitted by North Carolina law. Once he pulled behind the vehicle, he saw that it had Florida tags. He then pulled alongside the vehicle to see if the window displayed a sticker indicating that the tinting complied with Florida law. (The officer also saw that the windshield tinting extended about ten inches from the top of the windshield, about four to five inches in excess of what is permitted under G.S. 20-127(b).) Finding no such sticker, he stopped the vehicle. After the driver rolled down his window, the scent of unburned marijuana emanated from the vehicle. The officer asked for the defendant’s consent to search the vehicle. The defendant said that he did not know if he could consent to its search because he did not own the vehicle. The officer explained that the defendant could consent because he was in control of the vehicle. He further explained that he could search the vehicle even without the defendant’s consent because he smelled marijuana and that he could obtain a search warrant. The defendant then consented to a search of the vehicle.

The court ruled that the defendant’s consent was voluntary. The court stated that the officer’s statements to the defendant just before the defendant consented were entirely accurate. The officer did not speak to the defendant in an intimidating manner, and he did not engage in any other conduct designed to coerce the defendant into agreeing to a search. The court noted that the smell of marijuana gave the officer probable cause to justify a warrantless search of the car without the defendant’s consent.

State v. James, 118 N.C. App. 221 (1995). An officer saw the defendant nervously pacing until he reboarded a bus. The defendant moved toward the rear of the bus and picked up a duffel-type bag from a seat and put it in the overhead luggage bin. Officers went through typical bus-boarding procedures designed to find illegal drugs. The defendant agreed to allow an officer to look in his bag. The officer removed a portable radio from the bag and noticed that screws on the radio had been unscrewed several times. The officer asked the defendant if he would get off the bus so that they could talk privately. The defendant did not respond verbally but left the bus with the officer. The two went to a private area of the bus terminal, where the officer again obtained a consent to search. The officer discovered cocaine in the radio.

(1) Relying on State v. McDowell, 329 N.C. 363 (1991), and other cases, the court reviewed the facts of the bus boarding and ruled that the defendant’s consent to search was voluntarily given, although he had an IQ of 70. (2) Relying on State v. Christie, 96 N.C. App. 178 (1989), and State v. Bromfield, 332 N.C. 24 (1992), the court ruled that the defendant was not seized when he was on the bus or when he left the bus with the officers.

State v. Wooding, 117 N.C. App. 109 (1994). An officer received a radio communication stating that a person at the Southern Lights Restaurant had seen a black man of a given description get out of a 1980s gray Monte Carlo car and hide behind a dumpster near the restaurant. The person believed that the man lived in one of the apartments at 109 North Cedar Street. While investigating this communication, the officer received another radio communication stating that a robbery had occurred at the Equinox Restaurant. The description of the robber matched the description of the suspicious person at the Southern Lights Restaurant. The officer went to 109 North Cedar Street. He saw a gray Monte Carlo car parked in front of the building, which contained four apartments—two at ground level and two upstairs. Before leaving his vehicle, the officer saw—through an open window in the side of one of the downstairs apartments—a black male matching the descriptions. After getting out of his vehicle, the officer saw this same person through the open window walking around the apartment and “heard a lot of noise which appeared to [him] to be coins hitting metal.” Id. at 110. He believed that the noise was definitely change being counted or sifted through.

The officer went to the back porch of the apartment in which he had seen the black male (there was a partition that separated the porches of the two lower-level apartments). Once on the porch, the officer leaned over a couch next to the window, got close to the window, and looked into the apartment through a three- to four-inch opening in the window curtains. The officer saw two black males sitting on the floor in the hallway counting money. The officer radioed what he had seen to an officer who was in the front of the apartment with the robbery victim (the victim heard the officer’s communication). Shortly thereafter, the defendant came out onto the front porch and was arrested for the robbery. Then the other person came out of the apartment and was identified as the robber by the victim. Both men thereafter consented to a search of the apartment, and the officers found a handgun and money in the apartment.

The court, relying on State v. Tarantino, 322 N.C. 386 (1988) (looking through cracks in building violated Fourth Amendment), ruled that the officer’s looking into the apartment window while on the back porch was an unlawful search under the Fourth Amendment. The court rejected the State’s argument that the later consent search of the apartment—when the handgun and money were found—was based on lawful activity independent of the officer’s initial unlawful observation into the apartment window. The court ruled that (1) the arrest of the defendant was based entirely on the officer’s unlawful search and was therefore itself unlawful; (2) the consent to search, given by the defendant after his arrest, was tainted by the unlawful search; and (3) the victim’s identification of the second person in the apartment was made only after the victim learned what the officer had seen through the back window—two people counting money in the apartment; thus, the identification and the later consent to search were also tainted by the unlawful search.

State v. Wise, 117 N.C. 105 (1994). A State Highway Patrol trooper stopped a vehicle for speeding. He saw the defendant-passenger grab his midsection between his stomach and his belt line with both hands. Reaching in from the driver’s side of the car, the trooper patted down the defendant and felt a “round cylinder object” in the area that the defendant had grabbed, but he determined that it was not a weapon. The trooper asked the defendant what he had grabbed, which prompted the defendant to reach inside his jacket and hand the trooper a white, nontransparent Bayer aspirin bottle. The trooper shook the bottle and it “rattled lightly,” sounding as if it had “BBs in it.” He was suspicious because such a bottle normally has cotton in it, so the rattle would not sound the same. The trooper then opened the bottle, shined his flashlight in it, looked inside, and saw what he determined was rock cocaine. The court ruled that the officer unconstitutionally opened the bottle because (1) there was no evidence that the defendant consented to a search of the bottle and (2) there was not probable cause to believe, based on these facts, that the bottle contained illegal drugs.

State v. McDaniels, 103 N.C. App. 175 (1991), aff’d, 331 N.C. 112 (1992). The defendant-passenger of a vehicle never objected to the driver’s consent to a search of the car at the scene, and the defendant-passenger did not assert ownership rights in either the car or its contents. The court ruled that even if the defendant-passenger had ownership rights in the contents of the car, his failure to assert those rights was considered a voluntary consent to search because he remained silent when he knew that the driver had given verbal consent to search. The court also ruled that a driver of a car is in “apparent control” (see G.S. 15A-222(s)) of that car and its contents, whether the vehicle or its contents belonged to the driver or to others. Although the officers had reason to believe that the driver was not the car’s registered owner, the officers—based on these facts—could rely on the driver’s words of consent in assuming that he was lawfully controlling the vehicle.

State v. Davy, 100 N.C. App. 551 (1990). During a rape investigation, the defendant—who was a suspect—agreed to go with a deputy sheriff to the sheriff’s office, where he consented to allow his pants to be rolled for hairs and fibers. The court ruled that although the defendant had requested to speak to a lawyer, his consent was freely and voluntarily given because he had been told that he was free to leave the sheriff’s office before he was asked to allow his pants to be rolled.

State v. Bogin, 66 N.C. App. 184 (1984). Officers went to the defendant’s home with a warrant to arrest a person (Ruff) who did not live there. When the defendant’s father answered the door, the officers said that they had an arrest warrant for Ruff. The father let them in, and the defendant-son volunteered that Ruff might be in his (the son’s) room. The court ruled that the consent to enter was voluntary because the officers announced only their authority to arrest, not search, and therefore their admittance was not a mere acquiescence to lawful authority under Bumper v. North Carolina, 391 U.S. 543 (1968), discussed below under “Officer’s Statement about a Search Warrant,” “UNITED STATES SUPREME COURT.”

Federal Appellate Courts

United States v. Purcell, 236 F.3d 1274 (11th Cir. 2001). An officer stopped a vehicle for a traffic violation. While giving a citation to the defendant to sign and still possessing the defendant’s driver’s license, the officer asked for and received consent to search the vehicle. The court rejected the defendant’s argument that the consent was involuntary because the officer possessed the defendant’s driver’s license when asking for consent. The court ruled that the issue of voluntariness of a consent to search is based on the totality of circumstances—there is no litmus test on this issue. The court ruled that the defendant’s consent to search was voluntary.

United States v. Gigley, 207 F.3d 1212 (10th Cir. 2000). The court noted that the detention of the defendant-driver following a traffic stop ended when the officer returned her license and registration and gave her a warning citation, telling her, “That’s all I have for you.” The consensual encounter began when the defendant gave the officer permission to ask her some questions. The court ruled that the mere fact that the defendant was sitting in the front passenger seat of the officer’s patrol car did not make her consent involuntary.

United States v. Shaibu, 920 F.2d 1423 (9th Cir. 1990). When officers arrived at an apartment complex, the defendant came out of his apartment and left his door open. The defendant did not respond to an officer’s question about whether a particular person was inside but instead walked back into his apartment, leaving the door open. The officers did not ask permission to enter and did not state their intention to do so but simply followed the defendant through the open door. The court ruled that, absent a specific request by the officer for permission to enter the defendant’s apartment, the defendant’s failure to object to entry did not establish consent to enter. Compare with United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993) (distinguishing Shaibu, court upheld defendant’s consent to enter apartment when officer grabbed door, flashed badge, and said, “We’d like to talk to you,” and defendant said, “Okay,” nodded, and stepped back), and United States v. Walls, 225 F.3d 858 (7th Cir. 2000) (officer dressed as FedEx employee delivered packages to residence; later, when officers knocked at door of residence, people inside yelled at them and told them to get search warrant; however, defendant then came to door after officers knocked, and officers identified themselves and informed her that they were conducting investigation concerning the two packages that had just been delivered to residence; court ruled that defendant’s actions—opening door and stepping back to allow officers to enter—constituted consent to officers’ entry into house).

United States v. Kon Yu-Leung, 910 F.2d 33 (2d Cir. 1990). The defendant was indicted and arrested. He then gave consent to a search of his house. The court ruled that giving consent to a search after indictment was not a critical stage that entitled the defendant to the Sixth Amendment right to counsel.

United States v. Bosse, 898 F.2d 113 (9th Cir. 1990). An entry by a ruse that occurred when the defendant (1) was informed that the person seeking entry into his home was a government officer but (2) was misinformed as to the purpose for which the officer sought entry, could not be justified by consent. In this case, a state government inspector received the permission of the defendant, a licensed semiautomatic firearms dealer, to inspect the defendant’s home and premises concerning a pending application to buy and sell automatic machine guns. A federal firearms agent accompanied the state officer, without identifying himself as a federal agent, to investigate federal violations. The court ruled that the federal agent deliberately misrepresented his purpose and that his surreptitious entry was illegal.

Officer’s Statement about a Search Warrant

UNITED STATES SUPREME COURT

Bumper v. North Carolina, 391 U.S. 543 (1968). Consent to enter a home is involuntary if it is given in acquiescence to an officer’s assertion that he or she has a search warrant when in fact he or she has no warrant or has an invalid warrant. See State v. Phillips, 25 N.C. App. 5 (1975) (consent to search was involuntary when made in response to officers’ statement that they had search warrant, which was invalid).

North Carolina SUPREME COURT

State v. Fincher, 309 N.C. 1 (1983). The defendant, who was 17 years old, had a low IQ, and was told by officers that if he refused to give consent to a search of his bedroom, they would obtain a search warrant and conduct a search anyway, voluntarily and understandingly consented to the search.

NORTH CAROLINA COURT OF APPEALS

State v. McMillan, 214 N.C. App. 320 (2011). The court ruled that officers advising the defendant that if he did not consent to giving oral swabs and surrendering certain items of clothing they would detain him until they obtained a search warrant did not negate the defendant’s voluntary consent to the seizure of those items.

State v. Raynor, 27 N.C. App. 538 (1975). Officers arrested the defendant at his apartment and told him that if he did not give them the stolen stereo they were seeking, they would get a search warrant. The defendant retrieved the stereo from his apartment and gave it to the officers. Nothing improper occurred because the officers had probable cause to obtain a valid search warrant. See also State v. Paschal, 35 N.C. App. 239 (1978) (officer, who had probable cause to search car, properly obtained consent to search it after he told defendant that if he refused to consent, officer would impound car and go before magistrate to obtain search warrant); United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989) (officer’s informing defendant’s girlfriend that other officers were in process of obtaining search warrant for her home did not make girlfriend’s consent to search involuntary); United States v. Kaplan, 895 F.2d 618 (9th Cir. 1990) (arrestee was informed that he could either consent to search of his desk or wait for search warrant; he was also informed that he had a right to refuse; based on these and other facts, consent was voluntarily given); United States v. Tompkins, 130 F.3d 117 (5th Cir. 1997) (fact that officer told defendant that search warrant would be obtained, not that search warrant would be sought or applied for, is but one factor in considering totality of circumstances in evaluating defendant’s consent; court found consent was voluntary in this case).

Validity of Nonverbal Consent

(This topic is discussed in the chapter text under “Expression of Willingness for a Search to Occur.”)

NORTH CAROLINA COURT OF APPEALS

State v. Harper, 158 N.C. App. 595 (2003). Based on an investigation that indicated that people in a hotel room were involved with illegal drugs, an officer knocked on the door to the room. The defendant initially opened the door slightly and then, while continuing to have a conversation with the officer, opened it about halfway. The officer asked the defendant if he could step inside the room to see if George Davis was in. The defendant then stepped back from the officer and the threshold of the door and opened the door almost to its full extension. The officer saw a set of electronic scales on the nightstand between the room’s two beds and knew that drug dealers often used such scales to measure illegal drugs. There was another person in the room in addition to the defendant. That person started moving around the room, refused the officer’s order to remain seated on a bed, and became increasingly agitated. The officer handcuffed him. The defendant defied the officer’s order to remain seated on a bed, and so the officer handcuffed him as well. The officer then searched for weapons in the mattresses and nightstand. The officer and other officers saw illegal drugs and cash in these places. They obtained a search warrant, conducted a search of the hotel room, and seized evidence. The court ruled, relying on State v. Graham, 149 N.C. App. 215 (2002), that the defendant’s nonverbal conduct constituted valid consent to enter the hotel room.

Scope of the Search

(This topic is discussed in the chapter text under “Scope of the Search with a Valid Consent.”)

United States Supreme Court

Florida v. Jimeno, 500 U.S. 248 (1991). An officer stopped the defendant’s car and, after asking for and receiving the defendant’s consent to search the car for drugs, found cocaine inside a folded paper bag on the car’s floorboard. The Court ruled that the officer’s belief that the defendant’s consent to search his car included the containers within the car was objectively reasonable, and therefore the search did not violate the Fourth Amendment. The Court noted that the defendant had granted the officer consent to search his car for drugs and did not explicitly limit the scope of the search and that a reasonable person may be expected to know that drugs are generally carried in some type of container. An officer does not need to make a specific request for a defendant’s consent to search containers within a car to authorize the officer’s searching them.

North Carolina Supreme Court

State v. Stone, 362 N.C. 50 (2007). The court ruled that a search of a defendant in which an officer shined a flashlight inside the defendant’s underwear, when the defendant had given consent to a generic search for weapons or drugs during a routine traffic stop, was not within the scope of the defendant’s consent to search and thus violated the Fourth Amendment. An officer stopped a car for speeding. The officer asked the defendant, a passenger, whether he had any drugs or weapons on his person. The defendant said no, which prompted the officer to ask for consent to search. The defendant gave consent. The defendant was wearing a jacket and drawstring sweatpants. During the initial search, the officer found $552 in cash in the lower left pocket of the sweatpants. He again asked the defendant if he had anything on him. Once again, the defendant denied having drugs or weapons and authorized the officer to continue the search. The officer checked the rear of the sweatpants and moved his hands to the front of the defendant’s waistband. The officer then pulled the defendant’s sweatpants away from his body and trained his flashlight on the defendant’s groin area. The defendant objected, but by that time, the officer had already seen the white cap of what appeared to be a pill bottle tucked in between the defendant’s inner thigh and testicles. The court concluded that a reasonable person would not have understood that his consent included such an examination. The scope of a general consent to search does not necessarily include consent for an officer to move clothing to directly observe the genitals of a clothed person. The court noted that its ruling was necessarily predicated on the facts and that different actions by the officer could have led to a different result. [Author’s note: The only basis on which the State justified the officer’s search was consent. Thus, the court did not discuss whether probable cause and exigent circumstances supported the search. See State v. Smith, 342 N.C. 407 (1995), reversing the court of appeals for reasons stated in the dissenting opinion, 118 N.C. App. 106 (1995), discussed in the court’s opinion.]

State v. Belk, 268 N.C. 320 (1966). When an officer asked the defendant, the owner and operator of a car the officer and another officer had stopped, for permission to search the car, the defendant replied that he “would get the key and let them [the officers] look in the trunk.” Id. at 323. The court found that this answer did not limit the officers to searching the trunk; if the defendant made accessible to officers that portion of the car, the trunk, that they could not see and to which they had no ready physical access, he gave consent to search any part of the car. Therefore, the officer’s search of a paper bag between the legs of the occupant in the right rear of the car was permissible.

State v. Moore, 240 N.C. 749 (1954). When officers asked for the defendant’s consent to search his home and place of business (both were located in the same building), the defendant replied, “Go ahead, it is not around here but you are welcome to search.” Id. at 750. The court ruled that this consent to search included the entire building when the defendant never objected during the search.

North Carolina Court of Appeals

State v. Bullock, 258 N.C. App. 72 (2018). [This case was decided after remand from the North Carolina Supreme Court, 370 N.C. 256 (2017).] During a traffic stop, the defendant consented to a search of his vehicle but not to a search of his personal belongings in it, a bag and two hoodies. After searching the vehicle, the officer’s K-9—which had failed to alert to the vehicle—alerted to the presence of narcotics in the defendant’s bag, which had been removed from the vehicle before the search began. The court ruled that the scope of the officer’s search of the vehicle did not exceed the scope of the defendant’s consent. Furthermore, the defendant did not revoke consent to search his vehicle. Although the defendant asked the officer what would happen if he revoked his consent to search his vehicle, the defendant never did so, even after the officer explained that he needed to wait for a second officer to arrive to conduct the search.

State v. Ladd, 246 N.C. App. 295 (2016). The defendant was convicted of multiple charges of secretly using a photographic device with the intent to capture images of another person. The court ruled that the trial court erred in denying the defendant’s motion to suppress evidence obtained during a warrantless search of the defendant’s external hard drives. While the defendant had consented to a search of his laptops and smart phone, the trial court’s finding of fact (based on the State’s stipulation to the facts set out in defense counsel’s affidavit filed with the suppression motion) unambiguously showed that the defendant did not consent to the search of the external hard drives. And the officers’ warrantless search of these drives, for which the defendant possessed a Fourth Amendment privacy interest under Riley v. California, 573 U.S. 373 (2014), was not justified. The drives did not pose a safety threat to the officers, nor was there any reason to believe that the information on the drives would have been destroyed while the officers obtained a search warrant.

State v. Lopez, 219 N.C. App. 139 (2012). The court ruled that the defendant’s voluntary consent to a search of his vehicle extended to an officer’s looking under the hood and in the vehicle’s air-filter compartment.

State v. Schiro, 219 N.C. App. 105 (2012). The court ruled that a consent search of the defendant’s vehicle was not invalid because it involved taking off the vehicle’s rear quarter panels. The trial court found that both rear quarter panels were fitted with a carpet/cardboard type interior trim and that they “were loose.” Additionally, the trial court found that the officer “was easily able to pull back the carpet/cardboard type trim . . . covering the right rear quarter panel where he observed what appeared to be a sock with a pistol handle protruding from the sock.” Id. at 112 (quoting trial court).

State v. Hagin, 203 N.C. App. 561 (2010). The defendant was convicted of manufacture of methamphetamine. The defendant and his wife executed a written consent to search that permitted a search of the personal or real property located at an address in Wadesboro and described a single-wide mobile home. The officer informed them that they could withdraw their consent at any time. The defendant accompanied the officer and another officer as they searched the mobile home. The three then went outside, and one of the officers saw a small outbuilding located about fifteen to twenty feet from the home’s back porch. The officers searched the outbuilding, and neither the defendant nor his wife withdrew their consent to search their real property. The court ruled, relying on State v. Williams, 67 N.C. App. 519 (1984), and other cases, that the search of the outbuilding was within the scope of the consent given. A reasonable person who believed that his or her consent did not include the outbuilding would have objected to the search. The defendant’s silence was some evidence that he believed the outbuilding to be within the scope of his consent. [Author’s note: In preparing a written consent involving a residence, an officer may want to include a specific reference to “all outbuildings on the property, wherever located.” A person giving consent would have a better understanding of the scope of the proposed search, and a reviewing court would more likely find that an outbuilding was included in the consent to search.]

State v. Neal, 190 N.C. App. 453 (2008). The defendant was convicted of several cocaine offenses. The court ruled, relying on the standards set out in Florida v. Jimeno, 500 U.S. 248 (1991), and State v. Stone, 362 N.C. 50 (2007), that the scope of the defendant’s consent to search included a strip search. An officer detected a mild odor of marijuana coming from the passenger side of a car in which the defendant was seated. The defendant consented to both a pat-down search of her person to check for weapons and a search of her purse. A drug dog reacted to the passenger side of the car. While the canine search was being conducted, the defendant acted very nervous and often put her hands in and out of the back of the waistband of the defendant’s pants. An officer noticed a bulge in the back of the defendant’s pants, and she was instructed to keep her hands away from the waistband. The officer informed the defendant that he wanted to conduct a better search to determine what was located in the back of her pants and that he had contacted a female officer for assistance. The female officer conducted a search of the defendant in a women’s bathroom, with another officer standing outside the door to prevent others from entering. The female officer explained to the defendant that she would be conducting a more-thorough search. The defendant indicated that she understood. During the search, the defendant was asked to lower her underwear, and a package containing cocaine fell out. The female officer testified that the defendant was “very cooperative, extremely cooperative” during the search and never expressed any misgivings about the scope of the search.

State v. Johnson, 177 N.C. App. 122 (2006). An officer stopped a passenger van and issued a warning ticket for a license-plate display violation. The officer asked the defendant if he had any illegal guns or drugs or any amounts of money exceeding $10,000 in the van. The defendant said “no” several times. The defendant then gave consent to a search of the van. The officer discovered a piece of rubber that had been glued in an unusual place on a plastic wall panel inside the van. The officer pulled back the wall panel and discovered cocaine. The court ruled, applying the objective-reasonableness test of Florida v. Jimeno, 500 U.S. 248 (1991), and other cases, that the defendant’s general statement of consent to search could not reasonably have been interpreted to include the intentional infliction of damage to the van (glue, rubber, and plastic had been pulled back or pulled off when the officer pulled back the panel). [Author’s note: The North Carolina Supreme Court, 360 N.C. 541 (2006), later ordered that this case be remanded to the trial court for findings of fact and conclusions of law on the issue of whether probable cause supported the officer’s search of the van. The court did not, however, vacate the court of appeals ruling on the consent issue.]

State v. Jones, 161 N.C. App. 615 (2003). Officers saw the defendant get into a vehicle and take off his leather jacket and place it on the backseat. He later got out of the vehicle. A drug dog walking outside of the vehicle alerted “very strongly” on the passenger side of the vehicle where the defendant had been located. Another person told the officers that the vehicle belonged to his wife and that he was in charge of the car; he then gave consent to search the vehicle and gave the car keys to the officers. The officers removed the jacket and found illegal drugs in it. The court ruled, relying on Florida v. Jimeno, 500 U.S. 248 (1991); United States v. Matlock, 415 U.S. 164 (1974), State v. Garner, 340 N.C. 573 (1995), and other cases, that the consent to search the vehicle included the jacket and was valid.

State v. Castellon, 151 N.C. App. 675 (2002). Officer A stopped the defendant, who was the driver of a vehicle, for failing to wear a seat belt. The officer had the defendant sit in his patrol car and used his mobile data computer to check the defendant’s driver’s license for outstanding warrants. The computer responded slowly. Officer B arrived on the scene and both officers saw several indicators of illegal drug activity. After twenty-five minutes and a determination that the driver’s license was valid and the defendant was not wanted, the defendant was given a warning ticket. As the defendant was leaving the patrol car, Officer A asked the defendant for consent to search his vehicle. The defendant gave consent. During a search of the trunk, Officer B found cocaine in the back of a television set.

(1) The court ruled, citing State v. Munoz, 141 N.C. App. 675 (2001), that the length of time the defendant was detained while the officer determined the validity of his driver’s license was reasonable under the Fourth Amendment. (2) The court ruled that the search of the television set in the trunk did not exceed the scope of the driver’s consent: the television set was lying face down. Officer B saw a package wrapped in saran wrap inside the back panel of the set. The officer knew that illegal drugs are commonly packaged with saran wrap. Based on this information, the court ruled that the officers were justified under the plain-view doctrine in unscrewing the back panel of the television set and seizing the package.

State v. McDaniels, 103 N.C. App. 175 (1991), aff’d, 331 N.C. 112 (1992). The court ruled that a driver’s consent to a search of the car he was driving when stopped by officers was not limited. There was no evidence that the driver or the defendant-passenger objected to the officers’ use of a dog in searching the car and its contents (in this case, a briefcase), and the driver did not at any time attempt to modify or withdraw his initial consent to search.

State v. Aubin, 100 N.C. App. 628 (1990). An officer stopped the defendant for impaired driving. The officer informed the defendant that cars heading north were being searched for weapons and contraband, and he asked the defendant for his consent to search his car. The defendant said “okay.” Although the defendant did not sign the consent-to-search form, he stated, “You’re all right to look in the car,” and “You can go and check my car. No problem. I don’t understand you no way.” Id. at 631. The defendant stood by the officer as he searched the car. The officer opened the back passenger door and searched the back-seat areas, including lifting the bottom portion of the seat up and out of position. He found cocaine and arrested the defendant. The court ruled that the officer’s search did not exceed the scope of the defendant’s consent to a search, noting that the defendant did not object in any way to what the officer was doing.

State v. Morocco, 99 N.C. App. 421 (1990). When an officer stopped the defendant’s car, the defendant voluntarily signed a consent-to-search form that permitted a search of the car after the officer had explained to the defendant that he wanted to search his car for illegal weapons, alcohol, and contraband. The court ruled that the officer’s search of a tote bag in the back seat of the car did not exceed the scope of the defendant’s consent because contraband could reasonably be found there. The defendant did not withdraw his consent simply because he told the officer that the tote bag contained some nude photographs of the defendant’s wife.

State v. Leonard, 87 N.C. App. 448 (1987). An officer did not exceed the scope of consent given by the defendant to search his house for his fugitive son when the officer lifted a cover over a tub. The evidence supported the trial judge’s finding that the officer believed that the covered area was large enough for a person to hide in, and the officer had raised the cover to look for the son.

State v. Lash, 21 N.C. App. 365 (1974). The defendant consented to a search of her entire car, including the trunk, when she gave an officer the ignition key only and asserted that she did not have the trunk key. Officers obtained access to the trunk through the rear seat.

Federal Appellate Courts

United States v. Osage, 235 F.3d 518 (10th Cir. 2000). The court ruled that the defendant’s consent to a search of his suitcase did not extend to the officer’s opening with a tool a 28-ounce sealed can labeled “tamales in gravy” that was in the suitcase. The court noted that this search destroyed or rendered completely useless the item searched. Compare with United States v. Kim, 27 F.3d 947 (3d Cir. 1994) (consent search of handbag permitted officers to open factory-sealed cans with intact lids).

United States v. Melgar, 227 F.3d 1038 (7th Cir. 2000). The female defendant’s granting of consent to search a hotel room she had rented included consent to search a purse located in the room, because the officers had no reason to know that the purse did not belong to her.

United States v. McSween, 53 F.3d 684 (5th Cir. 1995). The defendant’s consent to search his car included a search under the hood. In this case, an officer made a general request for a search without identifying his objective, and the defendant did not attempt to limit the scope of the search. See also United States v. Crain, 33 F.3d 480 (5th Cir. 1994) (similar ruling); United States v. Zapata, 180 F.3d 1237 (11th Cir. 1999) (after officer explained that he was concerned about interstate transportation of drugs, weapons, and large sums of money, defendant’s consent to search his vehicle authorized search of area behind interior door panels).

United States v. Snow, 44 F.3d 133 (2d Cir. 1995). The defendant’s consent to a search of his car included a search of a duffel bag on the back seat. Although the officer’s request for consent to search did not include the purpose of the search, the court noted that it is self-evident that an officer seeking general permission to search a vehicle is looking for evidence of illegal activity—and it is obvious that such evidence might be hidden in closed containers. See also United States v. Forbes, 181 F.3d 1 (1st Cir. 1999) (consent to search of trunk included search of duffel bags inside trunk).

United States v. Rich, 992 F.2d 502 (5th Cir. 1993). An officer’s request to the defendant to “look in [his] truck” included the search of a suitcase behind the vehicle’s passenger seat.

United States v. Rodney, 956 F.2d 295 (D.C. Cir. 1992). The defendant’s consent to a search of his body for drugs included an officer’s placing his hands in a continuous sweeping motion over the defendant’s crotch area.

United States v. Chaidez, 906 F.2d 377 (8th Cir. 1990). The defendant’s consent to allow an officer to look in his car permitted the officer to run his hand in an opening on the side of a raised cushion and underneath the car’s rear seat when the defendant was present during the search and never objected.

United States v. Strickland, 902 F.2d 937 (11th Cir. 1990). The defendant’s consent to a search of the entire contents of a car for drugs authorized an officer to examine the spare tire in the trunk, to remove it to search around the spare-tire compartment, and to roll the spare tire on the pavement.

United States v. Smith, 901 F.2d 1116 (D.C. Cir. 1990). The defendant’s consent to the search of a tote bag for drugs authorized an officer to search a paper bag within the tote bag. See also United States v. Springs, 936 F.2d 1330 (D.C. Cir. 1991) (similar ruling; search of baby powder container within tote bag).

Delay in Conducting a Consent Search

NORTH CAROLINA COURT OF APPEALS

State v. Williams, 67 N.C. App. 519 (1984). The defendant gave written consent to search his car, which was located at the police department. A twenty-three-hour delay between the giving of consent and the search was not unlawful when the written consent did not have a time limitation, the defendant never withdrew his consent, officers were conducting other investigations during that time, and the result of the search would not have been different if it had been conducted earlier. Moving the car to a police impound lot before the search was not unlawful when the written consent did not limit where the search could be conducted and the result of the search would not have been different if it had been made at the police department.

Airport Cases

UNITED STATES SUPREME COURT

United States v. Mendenhall, 446 U.S. 544 (1980). The Court ruled that a deplaning passenger at an airport voluntarily consented to accompany federal drug enforcement officers from the airport’s concourse to the drug agency’s office and voluntarily consented to remove her clothing so that an officer could search for drugs. See also State v. White, 77 N.C. App. 45 (1985).

NORTH CAROLINA COURT OF APPEALS

State v. Porter, 65 N.C. App. 13 (1983). After being lawfully stopped at the airport, the defendant voluntarily consented to a search of her purse. She thought that she had nothing to lose by consenting to the search, but she had forgotten that she had hashish inside of it. See also State v. Perkerol, 77 N.C. App. 292 (1985).

State v. Casey, 59 N.C. App. 99 (1982). The defendant, who was being questioned at an airport, voluntarily consented to go with officers to a basement office. The officers specifically told the defendant that he was not under arrest, and they did not threaten or coerce him. In the office, the defendant voluntarily consented to a search of the bags he was holding for another person after officers truthfully told him that the person had consented to a search of the bags and that he, the defendant, could refuse to do so.

Undercover Officers and Informants

UNITED STATES SUPREME COURT

Hoffa v. United States, 385 U.S. 293 (1966). A government informant did not enter the defendant’s hotel room by force or by stealth but was invited in by the defendant. Thus, no Fourth Amendment violation occurred. The Court distinguished Gouled v. United States, 255 U.S. 298 (1921), discussed below.

Lewis v. United States, 385 U.S. 206 (1966). The defendant, who was selling drugs, invited into his home a federal undercover drug agent who had misrepresented his identity and stated that he wanted to purchase drugs. No Fourth Amendment violation occurred because the defendant’s privacy interests were not violated when he voluntarily allowed someone to enter his home to transact illegal business.

Gouled v. United States, 255 U.S. 298 (1921). The defendant’s Fourth Amendment rights were violated when the defendant’s business acquaintance, acting under orders from federal officers, fraudulently obtained permission to enter the defendant’s office—allegedly for a social visit—and then seized papers from the office.

FEDERAL APPELLATE COURTS

United States v. Akinsanya, 53 F.3d 852 (7th Cir. 1995). An undercover informant agreed to arrange a purchase of heroin from the defendant. The informant went to the defendant’s apartment to consummate the purchase. He saw the heroin there and called an officer (pretending that the officer was the buyer) to tell him. The informant then left the apartment, pretending to get the money to buy the heroin. Officers then entered the apartment without a warrant and seized the heroin.

The court ruled that the doctrine of consent-once-removed justified the entry and seizure. The doctrine applies when an undercover officer or informant (1) enters a place at the express invitation of someone with the authority to consent, (2) establishes then the existence of probable cause to arrest or to search, and (3) immediately summons help from other officers. The court ruled that all three criteria were met and that the officers’ actions did not violate the Fourth Amendment. See also United States v. Diaz, 814 F.2d 454 (7th Cir. 1987); United States v. Pollard, 215 F.3d 643 (6th Cir. 2000); United States v. Bramble, 103 F.3d 1475 (9th Cir. 1996).

Consent to Come to a Law Enforcement Facility

NORTH CAROLINA SUPREME COURT

State v. Freeman, 307 N.C. 357 (1983). An officer arrested the defendant (without probable cause) when he went to the suspect’s house, told him that he was there to “pick him up,” and then took him without his consent to the sheriff’s department for questioning; the resulting confession was inadmissible.

State v. Simpson, 303 N.C. 439 (1981). The defendant was not arrested or otherwise seized under the Fourth Amendment when he voluntarily accompanied officers to a law enforcement building at their request; was taken to an unlocked interrogation room; was interviewed throughout the day; but was never arrested, handcuffed, restrained, or otherwise treated as being in custody until an arrest warrant was served in the evening. An officer’s statement at a court hearing that the defendant was in his “custody” during the day was not dispositive when the evidence showed that the restraint on the defendant’s freedom was not sufficient to constitute a seizure under the Fourth Amendment. See also State v. Bromfield, 332 N.C. 24 (1992); State v. Johnson, 317 N.C. 343 (1986); State v. Jackson, 308 N.C. 549 (1983), later appeal, 317 N.C. 1 (1986); State v. Davis, 305 N.C. 400 (1982); State v. Morgan, 299 N.C. 191 (1980); State v. Reynolds, 298 N.C. 380 (1979); State v. Cass, 55 N.C. App. 291 (1982); State v. Smith, 61 N.C. App. 52 (1983).

Ordering Passenger out of Vehicle When Driver Gives Consent to Search

NORTH CAROLINA COURT OF APPEALS

State v. Pulliam, 139 N.C. App. 437 (2000). Officers were conducting a driver’s license checkpoint. A driver gave consent to a search of his vehicle. When the officer asked who his passenger was, the driver asserted that he did not know the defendant’s name. The officer ordered the defendant-passenger—whom the officer knew to be a convicted drug trafficker—to get out of the vehicle. The defendant became belligerent, saying that the officer had no right to make him get out. The defendant smelled of alcohol, was loud and argumentative, and used profanity. When the defendant finally got out of the vehicle, he was unsteady on his feet and appeared to be intoxicated. The officer saw a large bulge, one inch wide and six or seven inches long, in the defendant’s front pants pocket. He patted that place and discovered a utility razor knife. The court ruled, relying on Maryland v. Wilson, 519 U.S. 408 (1997) (officer who has made traffic stop may order passengers as well as driver to exit vehicle), and other cases, that the driver’s consent to search his vehicle allowed the officer to order the passenger out of the vehicle without the necessity of showing reasonable suspicion of criminal activity.

Special Relationships

(This topic is discussed in the chapter text under “Search and Seizure by Valid Consent,” “People Who Are Entitled to Give Valid Consent.”)

Landlord-Tenant and Hotel-Guest

UNITED STATES SUPREME COURT

Stoner v. California, 376 U.S. 483 (1964). A hotel clerk could not give consent to officers to search the hotel room that the defendant was renting. Only the defendant could waive his Fourth Amendment privacy rights.

Chapman v. United States, 365 U.S. 610 (1961). Officers entered the defendant’s rented house with the landlord’s consent. That consent did not permit the officers to enter the house without a search warrant. See also United States v. Brown, 961 F.2d 1039 (2d Cir. 1992).

Abel v. United States, 362 U.S. 217 (1960). A hotel manager could allow officers to search a room after the defendant permanently vacated it.

NORTH CAROLINA COURT OF APPEALS

State v. McBennett, 191 N.C. App. 734 (2008). A waitress who delivered room service to the defendant’s hotel room reported that the room was in disarray. A hotel manager decided to investigate but could not enter the room because the door caught on the interior lock. The defendant told the manager that he did not need housekeeping and did not open the door. The manager called law enforcement. When the defendant refused to open the door, the manager told the defendant that they would break the door down. The defendant opened the door, and the first pair of officers to enter the room saw marijuana and syringes in the room.

(1) The court ruled that hotel personnel have the implied right to enter a hotel room to keep the hotel in a reasonably safe condition and to exercise reasonable care to discover criminal acts that might cause harm to other guests. The entry of hotel personnel for this purpose is not a search under the Fourth Amendment. (2) The court ruled that the officers’ entry into the hotel room with hotel personnel was a search under the Fourth Amendment and that the discovery of the evidence in the room was not justified by the plain-view theory because the officers’ entry was not lawful. There were no exigent circumstances to authorize the entry. Also, the defendant did not voluntarily consent to allow the officers’ entry.

State v. Williams, 47 N.C. App. 205 (1980). A landlord’s consent to a search of the basement of the apartment house where the defendant lived was valid because the basement was under the landlord’s control.

State v. Reagan, 35 N.C. App. 140 (1978). A tenant’s possessory interest in a farm included a barn on the premises. The landlord-defendant’s temporary use of the barn to store stolen tobacco did not extinguish the permission given the tenant to use the barn, particularly because the landlord locked the barn and gave the tenant a key. The tenant therefore gave valid consent to officers to search the barn.

In re Dwelling of Properties, Inc., 24 N.C. App. 17 (1974). A tenant who is in actual possession and control of premises may consent to a warrantless inspection by a city housing inspector, despite the owner’s objection before the inspection took place.

FEDERAL APPELLATE COURTS

United States v. Kitchens, 114 F.3d 29 (4th Cir. 1997). Absent a pattern or practice of allowing guests to stay in their hotel rooms past checkout time, a guest does not have a reasonable expectation of privacy in his or her hotel room after checkout time.

Spouses and Other Shared Relationships

United States Supreme Court

Fernandez v. California, 571 U.S. 292 (2014). The Court in this case clarified an issue left open in Georgia v. Randolph, 547 U.S. 103 (2006) (discussed in the chapter text under “People Who Are Entitled to Give Valid Consent” and immediately below): the validity of a consent search by a residential occupant after a co-occupant has previously objected to a search but is no longer physically present when the other occupant consents. Officers in Fernandez saw a man apparently involved in a robbery run into a building. They heard screams and fighting coming from an apartment therein. A woman responded to a knock on the door. She had fresh injuries and admitted that she had been in a fight. Fernandez, a co-occupant, then appeared at the door and objected to officers entering the apartment. Believing that Fernandez had assaulted the woman, the officers arrested him and took him to the police station. An hour later, an officer returned to the apartment and obtained the woman’s consent to search the apartment. The Court in Randolph stressed that its ruling was limited to situations in which an objecting occupant was physically present when the co-occupant consented to the search (in which case, officers cannot rely on that consent to enter). The Court ruled that as long as officers have an objectively reasonable basis to remove the defendant (that is, the officers’ subjective motive for removal is irrelevant), the co-occupant’s later consent is sufficient. In this case, the officers properly removed Fernandez so that they could speak with the alleged assault victim outside of Fernandez’s intimidating presence. Also, there was probable cause to arrest Fernandez for assault.

Georgia v. Randolph, 547 U.S. 103 (2006). The defendant’s wife called law enforcement about a domestic dispute with her husband. She told law enforcement about the defendant’s drug use and said that there was drug evidence in the house they shared. The defendant, who was physically present, unequivocally refused to consent to a search of the house. The defendant’s wife then consented to a search. Officers relied on her consent and entered the house. They found drug evidence that was used to prosecute the defendant. The Court ruled, distinguishing United States v. Matlock, 415 U.S. 164 (1974) (valid consent of co-occupant with common authority over premises against absent occupant), and Illinois v. Rodriguez, 497 U.S. 177 (1990) (valid consent by person whom officer reasonably, but erroneously, believed to possess shared authority as an occupant), that when a physically present occupant refuses to consent to a search of a dwelling even though another co-occupant has consented to a search, the Fourth Amendment prohibits a search of the dwelling based on the co-occupant’s consent. [Author’s note: Concerning related post-Randolph issues, see United States v. Henderson, 536 F.3d 776 (7th Cir. 2008) (valid arrest of nonconsenting domestic violence suspect from home and later consent of victim to search house was valid); United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc) (arrest of nonconsenting husband at workplace and later consent by wife to enter and seize computer at home was valid); United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008) (when co-tenant objects to search and another party with common authority subsequently gives consent to that search in the absence of the first co-tenant, consent to search is invalid).]

The Court made clear that its ruling applied only (1) to a physically present occupant who has refused to consent and (2) as long as officers do not remove the potentially objecting occupant from the entrance to the residence in order to avoid a possible refusal to consent. The Court stated that when officers have obtained consent from a co-occupant, they have no obligation to seek out any other occupants to determine if they want to refuse to allow consent.

The Court noted that the issue of consent is irrelevant when an occupant on his or her own initiative brings evidence from a residence to law enforcement, citing Coolidge v. New Hampshire, 403 U.S. 443 (1971). The Court also noted that an occupant can tell law enforcement what he or she knows, which in turn can lead to the issuance of a search warrant. In footnote 6 of its opinion in Randolph, the Court stated that the exchange of this information in the presence of the nonconsenting occupant may render consent irrelevant by creating an exigency that justifies immediate action. If the occupant cannot be prevented from destroying easily disposable evidence during the time required to get a search warrant, see Illinois v. McArthur, 531 U.S. 326 (2001) (preventing suspect’s access to residence while law enforcement sought search warrant), a fairly perceived need to act then to preserve evidence may justify entry and search under the exigent circumstances exception to the warrant requirement. The Court also stated that additional exigent circumstances might justify warrantless searches: hot pursuit, protecting officers’ safety, imminent destruction to a residence, or likelihood that suspect will imminently flee.

The Court stated that this case had no bearing on the authority of law enforcement to protect domestic violence victims. The issue in this case was about an entry to search for evidence. The Court stated that no question could reasonably be made about law enforcement authority to enter a residence without consent to protect an occupant from domestic violence: as long as officers have a good reason to believe such a threat exists, officers can enter without consent to give an alleged victim the opportunity to collect belongings and get out safely or to determine whether violence or a threat of violence has just occurred or is about to (or soon will) occur. And because officers would be lawfully on the premises, they could seize any evidence in plain view or take further action supported by consequent probable cause. [Author’s note: When an occupant has a superior privacy interest over another occupant of a residence, such as most living arrangements involving a parent and child, the parent’s consent would override any expressed refusal to consent by a physically present child.]

Illinois v. Rodriguez, 497 U.S. 177 (1990). The female victim of an assault committed by the male defendant in his apartment gave officers consent to enter the apartment. She unlocked the apartment door with her key. She referred to the apartment as “our” apartment and said that she had clothes and furniture there. Evidence at a court hearing later showed that the victim had lived with the defendant in the apartment with her two small children for about one and one-half years but had moved out about a month before the search was conducted. She had taken her and her children’s clothing with her but had left some furniture and household effects there. After leaving the apartment, she sometimes spent the night there, but she never invited her friends there and never went there herself when the defendant was not there. Her name was not on the lease, and she did not contribute to the rent. She had a key to the apartment, which at the defendant’s trial she testified that she had taken without the defendant’s knowledge—although at the preliminary hearing she said that the defendant had given her the key.

The Court ruled that the victim did not have joint access to or control of the apartment for most purposes and therefore did not have authority to give consent to search the apartment. However, the Court also ruled that a search may be reasonable under the Fourth Amendment if officers reasonably believed that a victim had authority to consent, and the Court remanded to the state appellate court to determine whether the officers had such a reasonable belief in this case. [Author’s note: G.S. 15A-222(3), which permits a search by consent when consent is given by “a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of premises,” is consistent with this ruling.]

United States v. Matlock, 415 U.S. 164 (1974). Officers arrested the defendant outside his house. They received consent to search the house, including an upstairs bedroom, from a woman who lived in the house with the defendant. The consent was valid because the woman had common authority over the bedroom with the defendant. The Court stated that common authority does not necessarily depend on ownership of the property but instead depends on the mutual use of the property by those who have joint access or control for most purposes. Each co-inhabitant has a right to permit inspection in his or her own right, and each assumes the risk that the other might permit a common area to be searched.

Frazier v. Cupp, 394 U.S. 731 (1969). The defendant and Rawls jointly used a duffel bag. Rawls gave officers consent to search the bag, and the officers found evidence to use against the defendant. Responding to the defendant’s argument that Rawls had permission to use only one of the bag’s compartments and not other compartments, the Court stated that the defendant, in allowing Rawls to use the bag and in leaving it in his house, assumed the risk that Rawls would allow someone else to look inside.

North Carolina Supreme Court

State v. Garner, 340 N.C. 573 (1995). A homeowner consented to a search of her residence after officers said that they were looking for a pistol involved in a shooting. An officer saw a pile of men’s and women’s clothes in a room. He picked them up and squeezed them to see if he could find a weapon. He found a weapon in a man’s jacket (the officer was unaware to whom the jacket belonged), which later was determined to be the defendant’s. The court ruled that the homeowner’s consent was valid under United States v. Matlock, 415 U.S. 164 (1974).

State v. Weathers, 339 N.C. 441 (1994). The court ruled that the defendant’s stepdaughter had the authority to consent to a search of the house and bedroom that she shared with the defendant. (The court did not provide the age of the stepdaughter.)

State v. Worsley, 336 N.C. 268 (1994). Overruling State v. Hall, 264 N.C. 559 (1965), and other cases, the court ruled that a wife may consent to a search of the premises she shares with her husband. See also State v. Carter, 56 N.C. App. 435 (1982).

State v. Barnett, 307 N.C. 608 (1983). A woman lived in a rented house with her daughter. The defendants slept there only occasionally and did not help pay the rent. The woman had, at a minimum, common authority over the house to permit officers to enter so that they could arrest the defendants.

State v. Braxton, 294 N.C. 446 (1978). The registered owner of a car properly consented to a search of her car, which her defendant-son used during a rape.

State v. Penley, 284 N.C. 247 (1973). The owner of the house, in which her 15-year-old son lived, gave valid consent to a search of the house, including her son’s bedroom.

State v. Ray, 274 N.C. 556 (1968). The defendant was permitted to sleep regularly in the living room of another’s house and was allowed to keep his clothes in the homeowner’s suitcase that was located in another room. The homeowner gave valid consent to officers to seize the defendant’s clothes. Compare with United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992) (girlfriend did not have authority to consent to a search of the suitcase of her boyfriend, who periodically lived in the girlfriend’s apartment; the girlfriend had told officers before giving consent that the suitcase belonged to her boyfriend, and the officers knew that was true).

State v. Hamilton, 264 N.C. 277 (1965). Car passengers cannot validly object to a search made with the consent of the person who has possession and control of car. See also State v. Belk, 268 N.C. 320 (1966); State v. Raynes, 272 N.C. 488 (1968); State v. Grant, 279 N.C. 337 (1971).

North Carolina Court of Appeals

State v. Russell, 92 N.C. App. 639 (1989). The defendant’s mother, who owned the residence in which the defendant lived, gave officers consent to search her defendant-son’s bedroom. The defendant was not paying rent, although the mother testified at the suppression hearing that her son was “paying his way.” (The court did not give the defendant’s age or discuss the mother’s extent of access to the defendant’s bedroom, which are two factors that should be considered in determining her authority to consent.) The court upheld the trial judge’s ruling that the mother had common authority over the premises with her son and was apparently entitled to give or to withhold consent to the search of the premises.

State v. Washington, 86 N.C. App. 235 (1987). (1) The defendant-son, who had lived with his wife and child in his mother’s house for four months before the search at issue in this case, had a possessory interest in the premises (the house and curtilage) to contest the search, even though he did not own or lease the house or contribute to its maintenance. (2) The defendant failed to show a possessory interest in the outbuildings located outside the curtilage. Even assuming that he had a possessory interest, he had no reasonable expectation of privacy in outbuildings that were essentially open (a hog shelter was open to exposure and a packhouse had missing boards). (3) Even assuming that the defendant had a privacy interest in the outbuildings, his mother’s consent to a search was proper because she retained common authority over the outbuildings; the defendant did not have exclusive control. (4) The mother’s consent was valid despite the defendant’s physical presence when she gave consent. The defendant did not refuse to give consent or communicate his refusal to his mother. (5) The defendant’s mother, as registered owner of a car and in apparent control of that car, properly consented to its search under G.S. 15A-222(2), although she never drove the car (but she had keys and paid the insurance) and the defendant had purchased it.

State v. Kellam, 48 N.C. App. 391 (1980). Homeowners gave a key to their house to a neighbor and asked the neighbor to look after the house and to live there if she desired. The neighbor lived there one winter. The neighbor properly gave officers consent to search the house, even though the son of the homeowners lived there, because the neighbor had joint access to and control of the house for most purposes.

State v. Turgeon, 44 N.C. App. 547 (1980). The defendant gave a briefcase to a friend for safekeeping. The friend’s consent to officers to seize the briefcase was valid.

Federal Appellate Courts

United States v. Rith, 164 F.3d 1323 (10th Cir. 1999). A father’s consent given to officers to search his entire home, including his 18-year-old son’s bedroom, for weapons was valid despite his son’s refusal to give consent. The son did not pay rent, there was no lock on his bedroom door, and there was no agreement with his parents that they not enter his room without his consent. The court stated that there is a presumption of control of property when there is a parent-child relationship, although that presumption may be rebutted. The court specifically declined to adopt the analysis used in United States v. Whitfield, 939 F.2d 1071 (D.C. Cir. 1991), discussed below.

United States v. Beshore, 961 F.2d 1380 (8th Cir. 1992). The defendant’s girlfriend properly gave consent to a search of the defendant’s car, which she was driving (the defendant was not present in the car), because the defendant had given her permission to use the car and had put her license plates on the car.

United States v. Duran, 957 F.2d 499 (7th Cir. 1992). A wife had authority to consent to a search of a farmhouse, located on property on which she and her husband lived, that she considered her husband’s private gym, because she was not denied access to it. It simply was her habit not to enter the building.

United States v. Whitfield, 939 F.2d 1071 (D.C. Cir. 1991). Officers did not have a reasonable belief that the 29-year-old defendant’s mother had authority to consent to a search of his bedroom because (1) the officers’ superficial and cursory questioning of the mother did not support such a belief and (2) although the son’s room generally remained unlocked, the mother gave no answers to officers’ questions that would have led them to believe that she had mutual use of the defendant’s room. Compare this ruling with United States v. Rith, 164 F.3d 1323 (10th Cir. 1999), discussed above.

United States v. Anderson, 859 F.2d 1171 (3d Cir. 1988). The driver of a car gave consent to an officer to search it. The officer searched the defendant-occupant’s bag in the trunk. The court ruled that the driver (neither the driver nor the defendant was the owner of the car) had common authority over the trunk and could validly consent to a search that included the trunk. The court also noted that the defendant watched without objection while the car was searched; that behavior was inconsistent with an expectation of privacy in the bag.

United States v. Trzaska, 859 F.2d 1118 (2d Cir. 1988). The defendant’s estranged wife, who had moved from the defendant’s apartment two weeks earlier, had authority to consent to a search of the apartment because she still had her key to the apartment and had personal belongings there. Compare with Illinois v. Rodriguez, 497 U.S. 177 (1990), discussed above in this section under “UNITED STATES SUPREME COURT.”

Miscellaneous

NORTH CAROLINA COURT OF APPEALS

State v. Mandina, 91 N.C. App. 686 (1988). Although the defendant offered evidence that he had paid a car dealer most of the purchase price of the car at issue in this case, the car was parked on the car dealer’s lot for repairs, and its title and registration were still in the car dealership’s name. The court ruled that the officer properly obtained consent to search the car from the car dealer, who had told the officer that he owned the car.

State v. Baker, 65 N.C. App. 430 (1983). The defendant left his truck at a service station for repairs. The court found that the garage operator gave valid consent to a Division of Motor Vehicles inspector to (1) open the truck door to check the plate serial number and (2) walk under the truck while it was on a lift to obtain the manufacturer’s frame number. It ruled: “Since the defendant voluntarily exposed these serial numbers on the truck when he placed it in the possession of the [garage operator], he cannot now claim that he had a reasonable expectation of privacy in these serial numbers not in plain view.” Id. at 442.

Reasonable Belief That Person Is Entitled to Give Consent

(This topic is discussed in the chapter text under “People Who Are Entitled to Give Valid Consent.”)

UNITED STATES SUPREME COURT

Illinois v. Rodriguez, 497 U.S. 177 (1990). The female victim of an assault committed by the male defendant in his apartment gave officers consent to enter the apartment. She unlocked the apartment door with her key. She referred to the apartment as “our” apartment and said that she had clothes and furniture there. Evidence at a court hearing later showed that the victim had lived with the defendant in the apartment with her two small children for about one and one-half years but had moved out about a month before the search was conducted. She had taken her and her children’s clothing with her but had left some furniture and household effects there. After leaving the apartment, she sometimes spent the night there, but she never invited her friends there and never went there herself when the defendant was not there. Her name was not on the lease, and she did not contribute to the rent. She had a key to the apartment, which at the defendant’s trial she testified that she had taken without the defendant’s knowledge—although at the preliminary hearing she said that the defendant had given her the key.

The Court ruled that the victim did not have joint access to or control of the apartment for most purposes and therefore did not have authority to give consent to search the apartment. However, the Court also ruled that a search may be reasonable under the Fourth Amendment if officers reasonably believed that a victim had authority to consent, and the Court remanded to the state appellate court to determine whether the officers had such a reasonable belief in this case. [Author’s note: G.S. 15A-222(3), which permits a search by consent when consent is given by “a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of premises,” is consistent with this ruling.] But see United States v. Whitfield, 939 F.2d 1071 (D.C. Cir. 1991) (court ruled that Rodriguez did not apply when officers were mistaken about the law concerning authority to consent); United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992) (similar ruling); United States v. Brown, 961 F.2d 1039 (2d Cir. 1992) (similar ruling).

FEDERAL APPELLATE COURTS

United States v. Basinski, 226 F.3d 829 (7th Cir. 2000). The court ruled that a friend to whom the defendant had given a locked briefcase did not have apparent authority to consent to a search of the briefcase and that a government agent could not reasonably believe that he did. The friend did not have access to the briefcase’s contents (the defendant did not give the friend the combination to the lock) and had been instructed to destroy the briefcase and its contents rather than allow anyone else access to it. The court also rejected the government’s argument that the defendant had abandoned the briefcase.

United States v. Jenkins, 92 F.3d 430 (6th Cir. 1996). The court ruled that an officer is justified in believing that the driver of a tractor trailer has the authority to consent to a search of the trailer unless the officer knows or is told other information to the contrary.

United States v. Dearing, 9 F.3d 1428 (9th Cir. 1993). The court ruled that an officer’s belief that a person who lived in a house as a caretaker and occasional housekeeper had use of and access to or control over the homeowner’s bedroom—and thus had apparent authority to consent to a search of the bedroom—was unreasonable under the Fourth Amendment. Even though the officer knew that the caretaker had been in the bedroom on prior occasions, there was nothing to indicate that the prior access was authorized, the bedroom door was closed at the time of the search, and the officer knew that the caretaker’s relationship with the homeowner was nearing an end.

United States v. Welch, 4 F.3d 761 (9th Cir. 1993). A male person’s (McGee’s) consent to search a rental vehicle did not give officers actual or apparent authority to search the female defendant’s purse in the car’s trunk. When the officers decided to search the defendant’s purse, they knew that she was McGee’s girlfriend, that she had traveled with him in the rental car, and that the purse belonged to a woman. The officers did not have a reasonable belief that McGee shared the use of and had joint access to or control over his girlfriend’s purse.

Admissibility of Evidence of Refusal to Consent

NORTH CAROLINA SUPREME COURT

State v. Jennings, 333 N.C. 579 (1993). The court ruled that the defendant’s refusal to give consent to search was not admissible as evidence of the defendant’s guilt.

FEDERAL APPELLATE COURTS

United States v. Dozal, 173 F.3d 787 (10th Cir. 1999). The court ruled that evidence of the defendant’s refusal to allow officers to search property under his exclusive control was introduced not to impute the defendant’s guilty knowledge but, rather, for the proper purpose of establishing the defendant’s dominion and control over the premises. The evidence was thus admissible.

Requesting Consent to Search after Defendant Asserts Miranda Right to Silence or Right to Counsel

(This topic is discussed in the chapter text under “Miranda Assertion of Right to Counsel and Officer’s Later Request for Consent.”)

NORTH CAROLINA COURT OF APPEALS

State v. Cummings, 188 N.C. App. 598 (2008). The defendant was advised of his Miranda rights and waived them. Shortly after questioning by officers began he requested a lawyer, and questioning stopped. However, an officer then asked for the defendant’s consent to search his vehicle, which he granted. The court upheld the trial judge’s denial of the defendant’s motion to suppress evidence seized as a result of the consent search. The court noted that State v. Frank, 284 N.C. 137 (1973), had ruled that Miranda warnings are inapplicable to searches and seizures. The court also stated that it found persuasive many federal court cases that have ruled that asking for a consent search is not interrogation under Miranda; see, for example, United States v. Shlater, 85 F.3d 1251 (7th Cir. 1996), and United States v. McCurdy, 40 F.3d 1111 (10th Cir. 1994).

FEDERAL APPELLATE COURTS

United States v. Shlater, 85 F.3d 1251 (7th Cir. 1996). An officer’s request that the defendant consent to a search is not a violation of Miranda and related rulings even if the request is made after the defendant asserted the right to counsel.

United States v. Hildalgo, 7 F.3d 1566 (11th Cir. 1993). An officer’s request that the defendant consent to a search is not a violation of Miranda and related rulings even if the request is made after the defendant asserted the right to remain silent. A consent to search is not a self-incriminatory statement—it is neither testimonial nor communicative.

United States v. Gleena, 878 F.2d 967 (7th Cir. 1989). An officer’s request that the defendant consent to a search is not an interrogation because it is not reasonably likely to evoke an incriminating response. Therefore, Miranda warnings are not required before asking for consent to search. See also United States v. McCurdy, 40 F.3d 1111 (10th Cir. 1994).

Consent Given during Investigative Stop

NORTH CAROLINA COURT OF APPEALS

State v. Parker, 183 N.C. App. 1 (2007). The court ruled that although a detective’s request for consent to search a vehicle passenger’s purse was unrelated to the traffic infraction for which the detective initially stopped the defendant driver, the request was supported by reasonable suspicion that the purse would contain contraband or evidence of a drug crime. [Author’s note: When an officer has lawfully detained a person, an officer’s questioning of that person (including a request for consent), even if the questioning is unrelated to the purpose of the detention, is not a seizure under the Fourth Amendment (as long as the questioning does not unnecessarily prolong the detention) and, therefore, does not need any justification (for example, reasonable suspicion). See generally Arizona v. Gant, 556 U.S. 332 (2009); Muehler v. Mena, 544 U.S. 93 (2005); United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007); United States v. Alcarez-Arellano, 441 F.3d 1252 (10th Cir. 2006); United States v. Slater, 411 F.3d 1003 (8th Cir. 2005). In this case, the detective clearly had reasonable suspicion to detain the vehicle’s occupants based on the discovery of the contents of a drawstring bag and thus did not need any justification under the Fourth Amendment for asking for consent to search the passenger’s purse, even though that request was not related to the purpose of the traffic stop.]

Whether Consent Search Is Tainted by Prior Illegality

UNITED STATES SUPREME COURT

Florida v. Royer, 460 U.S. 491 (1983). The defendant’s consent to the opening of his luggage was tainted by his unconstitutional arrest, and therefore evidence from the search was inadmissible.

NORTH CAROLINA COURT OF APPEALS

State v. Wooding, 117 N.C. App. 109 (1994). An officer received a radio communication stating that a person at the Southern Lights Restaurant had seen a black man of a given description get out of a 1980s gray Monte Carlo car and hide behind a dumpster near the restaurant. The person believed that the man lived in one of the apartments at 109 North Cedar Street. While investigating this communication, the officer received another radio communication stating that a robbery had occurred at the Equinox Restaurant. The description of the robber matched the description of the suspicious person at the Southern Lights Restaurant. The officer went to 109 North Cedar Street. He saw a gray Monte Carlo car parked in front of the building, which contained four apartments—two at ground level and two upstairs. Before leaving his vehicle, the officer saw—through an open window in the side of one of the downstairs apartments—a black male matching the earlier descriptions. After getting out of his vehicle, the officer saw this same person through the open window walking around the apartment and “heard a lot of noise which appeared to [him] to be coins hitting metal.” Id. at 110. He believed that the noise was definitely change being counted or sifted.

The officer went to the back porch of the apartment in which he had seen the black male (there was a partition that separated the porches of the two lower level apartments). Once on the porch, the officer leaned over a couch next to the window, got close to the window, and looked into the apartment through a three- to four-inch opening in the window curtains. The officer saw two black males sitting on the floor in the hallway counting money. The officer radioed what he had seen to an officer who was in front of the apartment with the robbery victim. Shortly thereafter, the defendant came out onto the front porch and was arrested for the robbery. Then the other person came out of the apartment and was identified as the robber by the victim. Both men thereafter consented to a search of the apartment, and the officers found a handgun and money in the apartment.

The court ruled, relying on State v. Tarantino, 322 N.C. 386 (1988), that the officer’s looking into the apartment window while on the back porch was an unlawful search under the Fourth Amendment. The court rejected the State’s argument that the later consent search of the apartment, when the handgun and money were found, was based on lawful activity independent of the officer’s initial unlawful observation into the apartment window. The court ruled that (1) the arrest of the defendant was based entirely on the officer’s unlawful search and was therefore itself unlawful; (2) the consent to search, given by the defendant after his arrest, was tainted by the unlawful search; and (3) the victim’s identification of the second person in the apartment was made only after the victim learned what the officer had seen through the back window—two people counting money in the apartment; thus, the identification and the later consent to search were also tainted by the unlawful search.

FEDERAL APPELLATE COURTS

United States v. Boone, 245 F.3d 352 (4th Cir. 2001). The court ruled that the defendant’s consent to search was voluntary, even if the investigative stop of the defendant exceeded permissive bounds. The court noted other appellate cases that have ruled that consent may be voluntary even if it is procured during an illegal detention, as long as the totality of circumstances confirms that the consent was not coerced: United States v. Beason, 220 F.3d 964 (8th Cir. 2000), United States v. Guimond, 116 F.3d 166 (6th Cir. 1997), and United States v. Thompson, 106 F.3d 794 (7th Cir. 1997).

United States v. Santa, 236 F.3d 662 (11th Cir. 2000). The defendant consented to a search of his apartment shortly after officers unlawfully entered the apartment without a warrant to arrest him. The court ruled that the consent—even if voluntarily given—was invalid as a product of the unlawful entry into the apartment.

United States v. Jones, 234 F.3d 234 (5th Cir. 2000). The defendant’s consent to search his car after a traffic stop was invalid because it was a direct result of his illegal detention during the stop.

United States v. Edwards, 103 F.3d 90 (10th Cir. 1996). The defendant’s detention resulted in an arrest that was ruled illegal because the detention exceeded the scope of an investigative stop and the arrest was not supported by probable cause. However, officers then developed probable cause to arrest the defendant from other information not tainted by the illegal arrest. The defendant’s later consent search was valid because it was not tainted by the illegal arrest.

Search and Seizure of Evidence with Probable Cause, Reasonable Suspicion, or Other Justification

(This topic is discussed in the chapter text under “Search and Seizure of Evidence with Probable Cause.”)

Vehicles, Including Containers within Vehicles

(This topic is discussed in the chapter text under “Search and Seizure of Vehicles with Probable Cause.”)

Generally

United States Supreme Court

Collins v. Virginia, 584 U.S. 586 (2018). The Court ruled that the automobile exception to the Fourth Amendment’s warrant requirement does not permit an officer, uninvited and without a warrant, to enter the curtilage of a home to search a vehicle parked there. In this case, an officer saw the driver of an orange and black motorcycle with an extended frame commit a traffic infraction. The driver eluded the officer’s attempt to stop the motorcycle. A few weeks later, another officer saw a similar motorcycle traveling well over the speed limit, but the driver got away from him, too. The officers compared notes and determined that the two incidents involved the same motorcyclist and that the motorcycle likely was stolen and in the possession of Ryan Collins. After discovering photographs on Collins’s Facebook page showing an orange and black motorcycle parked at the top of the driveway of a house, one of the officers tracked down the address of the house, drove there, and parked on the street. It was later established that Collins’s girlfriend lived in the house and that Collins stayed there a few nights per week. From the street, the officer saw what appeared to be the motorcycle in question. The officer, who did not have a warrant, walked toward the house. He stopped to take a photograph of the covered motorcycle from the sidewalk and then walked onto the residential property and up to the top of the driveway where the motorcycle, covered by a tarp, was parked. He removed the tarp, revealing a motorcycle that looked like the one from the speeding incident. He ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen. The officer photographed the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for the defendant. The defendant was ultimately arrested, and he unsuccessfully sought in Virginia trial and appellate courts to suppress the evidence the officer obtained as a result of the warrantless search of the motorcycle. The United States Supreme Court granted certiorari and reversed. The Court characterized the case as arising “at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.” Id. at 591. After reviewing the law on these doctrines, the Court turned to the question of whether the location where the motorcycle was parked was within the curtilage of the home. It noted that according to photographs in the record, the driveway runs alongside the front lawn and up a few yards past the front perimeter of the house. The top portion of the driveway that sits behind the front perimeter of the house is enclosed on two sides by a brick wall about the height of a car and on a third side by the house. A side door provides direct access between this partially enclosed section of the driveway and the house. A visitor endeavoring to reach the front door would have to walk partway up the driveway but would then need to turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch. When the officer searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house. The Court concluded that the driveway was properly considered curtilage. The Court noted that by physically intruding on the curtilage, the officer not only invaded the defendant’s Fourth Amendment interest in the item searched—the motorcycle—but also his interest in the curtilage of the home at which he was a guest. Finding the case to be an “easy” one, the Court concluded that the automobile exception to the Fourth Amendment’s warrant requirement did not justify an invasion of the curtilage. It clarified that “the scope of the automobile exception extends no further than the automobile itself.” Id. at 594. The Court rejected Virginia’s request that it expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. It continued:

Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage. Id. at 596.

The Court concluded that “the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.” Id. at 601. It left for resolution on remand the issue of whether the officer’s warrantless intrusion on the curtilage may have been reasonable on a different basis, such as the exigent circumstances exception to the warrant requirement.

Maryland v. Dyson, 527 U.S. 465 (1999). Officers developed probable cause to search a vehicle for drugs. About thirteen hours later, the officers stopped and searched the vehicle without a search warrant. The Court reaffirmed its prior rulings in United States v. Ross, 456 U.S. 798 (1982), and Pennsylvania v. Labron, 518 U.S. 938 (1996), that probable cause to search a vehicle permits a warrantless search of the vehicle; a showing of exigent circumstances is not required.

Wyoming v. Houghton, 526 U.S. 295 (1999). An officer stopped a vehicle that was occupied by a male driver and two female passengers; the defendant was one of the female passengers. Thereafter, the officer developed probable cause to search the vehicle for illegal drugs based on information learned from the driver. After the three occupants had been removed from the car, the officer found a purse on the backseat—which was claimed by one of the female passengers—and searched it without a search warrant. That female passenger was prosecuted for illegal drugs found in her purse. Relying on United States v. Ross, 456 U.S. 798 (1982), and other cases, the Court ruled that an officer who has probable cause to search a vehicle may search without a search warrant a container in a vehicle that is capable of concealing the object of the search, regardless of the owner of the container.

Pennsylvania v. Labron, 518 U.S. 938 (1996). The Court, per curiam, reaffirmed its prior rulings—see, e.g., California v. Carney, 471 U.S. 386 (1985)—that an officer who has probable cause to search a readily mobile vehicle for contraband may conduct a search of the vehicle without a search warrant. A showing of exigent circumstances to conduct such a warrantless vehicle search is unnecessary.

California v. Acevedo, 500 U.S. 565 (1991). Law enforcement officers saw the defendant leaving an apartment with a brown paper bag; they had information establishing probable cause to believe that the bag contained marijuana. The defendant placed the bag in the trunk of a car and drove away. The officers did not have probable cause to believe that drugs were located elsewhere in the car other than in the bag. The Court ruled that law enforcement officers may, under the automobile exception to the Fourth Amendment’s search warrant requirement, search without a warrant a container within a vehicle even when probable cause to search focuses exclusively on the container and nowhere else in the vehicle. The Court overruled Arkansas v. Sanders, 442 U.S. 753 (1979) (a warrantless search for marijuana in a suitcase located in a taxi’s trunk was unconstitutional because probable cause focused exclusively on the suitcase’s contents), disavowed part of the underlying rationale of United States v. Chadwick, 433 U.S. 1 (1977) (a warrantless search for marijuana in a footlocker was unconstitutional because a person has a greater expectation of privacy in containers than in vehicles), and reaffirmed United States v. Ross, 456 U.S. 798 (1982), discussed below in this section (when probable cause exists to search a vehicle, a warrantless search may be conducted anywhere in the vehicle—including containers—where evidence could reasonably be found).

California v. Carney, 471 U.S. 386 (1985). Federal officers had information that the defendant was exchanging marijuana for sex with a young man inside the defendant’s motor home, which was parked in a lot in downtown San Diego. The officers stopped the youth after he left the motor home. He told the officers that he had received marijuana in return for allowing the defendant to have sexual contacts with him. The officers went to the motor home, entered it without consent or an arrest or search warrant, and saw marijuana and other drug implements inside. They then seized the motor home and took it to the police station, where they conducted a warrantless search. The Court ruled that the officers had probable cause to conduct the searches and could do so without a search warrant. The Court noted that the motor home was readily mobile, even though parked, and an objective observer would conclude that it was being used as a vehicle, not a residence (for example, it was a licensed motor vehicle that was obviously made readily mobile by turning the ignition switch). See also United States v. Albers, 136 F.3d 670 (9th Cir. 1998) (citing Carney, court ruled that readily mobile houseboat—that is, not permanently moored—is subject to warrantless search under vehicle exception to Fourth Amendment warrant requirement).

United States v. Johns, 469 U.S. 478 (1985). While investigating a drug-smuggling operation with ground and air surveillance, federal officers saw two pickup trucks travel to a remote private airstrip, where two airplanes arrived and departed. The officers approached the trucks, smelled the odor of marijuana emanating from them, and saw in the back of the trucks packages wrapped in dark green plastic sealed with tape—a common method of packaging marijuana. The defendants were arrested at the airstrip and the trucks were taken to agency headquarters, where the packages were removed and placed in a warehouse. The officers made a warrantless search of the packages three days later and found marijuana.

The Court ruled: (1) The officers had probable cause to believe that not only the packages but also the trucks themselves contained contraband (the officers smelled the marijuana odor before they saw the packages in the truck, and therefore marijuana could have been anywhere in the truck), and thus under United States v. Ross, 456 U.S. 798 (1982), discussed below in this section, they had probable cause to search without a warrant the entire truck, including the packages. [Author’s note: The later case of California v. Acevedo, 500 U.S. 565 (1991), discussed above in this section, permits a warrantless search of a container in a vehicle whether probable cause exists to search an entire vehicle or focuses exclusively on packages in a vehicle.] (2) A warrantless search of the vehicle and the packages inside could take place when and where the packages were seized or later, where the vehicle and its contents were taken after the seizure, as provided in Florida v. Meyers, discussed immediately below. (3) The three-day delay in conducting the warrantless search of the packages was not unreasonable in this case because it did not adversely affect a privacy or possessory interest under the Fourth Amendment; the defendants did not challenge the legitimacy of the seizure of the trucks or packages, and they never sought return of the property. See also United States v. Albers, 136 F.3d 670 (9th Cir. 1998) (citing Johns, court found as reasonable seven- to ten-day delay in viewing videotapes and film legally seized from houseboat).

Florida v. Meyers, 466 U.S. 380 (1984). The defendant was arrested for sexual battery. His car was searched without a warrant when he was arrested, and several items were seized. The car was towed by a private wrecker, which impounded it in a locked, secure area. An officer went to that area eight hours later, searched the car without a warrant, and seized more evidence. The defendant conceded that the first search was valid but challenged the second warrantless search on the ground that the car was no longer mobile. The Court ruled that the second warrantless search was valid under Michigan v. Thomas, 458 U.S. 259 (1982), discussed below.

Michigan v. Long, 463 U.S. 1032 (1983). Officers saw a car, traveling fast and erratically, leave the road and go into a ditch. The defendant-driver met the officers at the rear of the car. His appearance and conduct indicated that he was under the influence of some substance. The defendant began to walk to the open door of the driver’s side of the vehicle, and the officers followed him. They saw a large hunting knife on the floorboard and stopped the defendant and frisked him but found no weapons. One officer then searched the car for other weapons and eventually found marijuana in an open pouch on the front seat in plain view. The Court ruled that when officers reasonably suspect that a suspect is dangerous and may gain immediate control of weapons, they may search a car’s passenger compartment in areas where a weapon may have been placed or hidden. It also ruled that the officers’ search was justified and the pouch containing the marijuana was properly searched because it could have contained a weapon. In this case, the officers had not arrested the defendant for any crime until the discovery of the marijuana. The Court noted that the officers acted reasonably in taking preventive measures to ensure that there were no other weapons within the defendant’s grasp before permitting him to reenter his car.

Michigan v. Thomas, 458 U.S. 259 (1982). The Court ruled that once officers found marijuana in the glove compartment of a car during a valid inventory search on a highway, they could conduct a warrantless search (supported with probable cause) of the rest of the car, even though the car was under their control and exigent circumstances did not exist. The officers properly seized a loaded weapon they found during a warrantless search of the air vent under the dashboard.

United States v. Ross, 456 U.S. 798 (1982). A confidential reliable informant gave officers information, some of which they corroborated, that the defendant was selling illegal drugs from the trunk of his car and that he possessed additional drugs. The officers stopped the defendant’s car, ordered him out, and arrested him. They searched the car then and there without a warrant and also searched it at the police station. The search included the car’s interior and the trunk. Among the items the officers searched within the trunk were a brown paper bag that contained heroin and a zippered leather pouch that contained $3,200 in cash. The Court ruled that when officers have probable cause to search an entire vehicle, they may conduct a warrantless search of the entire vehicle, including containers within the vehicle, if the object of the search might be found there. The scope of the warrantless search may include all places within the vehicle for which a magistrate could authorize a search with a search warrant. The Court reaffirmed its rulings in United States v. Chadwick, 433 U.S. 1 (1977), and Arkansas v. Sanders, 442 U.S. 753 (1979). [Author’s note: California v. Acevedo, 500 U.S. 565 (1991), discussed above in this section, overruled Sanders and disavowed part of the underlying rationale of Chadwick.] The Court also overruled Robbins v. California, 453 U.S. 420 (1981), which had ruled that although an officer had probable cause to search an entire vehicle for marijuana, he needed a search warrant to open a package found within the vehicle.

Colorado v. Bannister, 449 U.S. 1 (1980). An officer saw a speeding car that disappeared before he could stop it. He then heard a radio dispatch that reported a theft of motor vehicle parts, including chrome lug nuts, and described the suspected thieves. A few minutes later, he saw the car again at a service station. The officer approached the car on foot to issue a speeding citation and began talking with the two occupants. He noticed chrome lug nuts in an open glove compartment and two lug wrenches on the floorboard of the back seat. Both occupants matched the radio description of the man suspected of stealing the motor vehicle parts. The Court ruled that the plain-view observation of items in the car gave the officer probable cause to seize them and probable cause to arrest the two occupants. The warrantless seizure of the items was permissible under Carroll v. United States, 267 U.S. 132 (1925).

Texas v. White, 423 U.S. 67 (1975). The defendant was arrested while attempting to pass fraudulent checks from his car at a bank’s drive-in window, and there was probable cause to search his car for the checks. One officer drove the defendant to the station house, and another officer drove the defendant’s car there. After about an hour, the officers searched the car without a search warrant. The Court ruled that a warrantless search was proper under Chambers v. Maroney, 399 U.S. 42 (1970). See also State v. Jones, 295 N.C. 345 (1978).

Cardwell v. Lewis, 417 U.S. 583 (1974). Officers had probable cause to arrest the defendant for murder and to search his car because it had been used to commit a murder. At police request, the defendant voluntarily came to the police station (officers had obtained an arrest warrant earlier in the day but not a search warrant). He was arrested and his car, which was parked in a public commercial parking lot nearby, was seized without a warrant and towed to the police impoundment lot. The next day, without a warrant, a police technician removed paint from the car’s exterior and observed the tread of one of the tires.

A four-Justice plurality opinion questioned whether a “search” occurred but found the warrantless actions reasonable because there was probable cause. Distinguishing Coolidge v. New Hampshire, 403 U.S. 443 (1971), the opinion upheld a warrantless seizure of a car in a public place. [Author’s note: Coolidge involved a seizure in a private driveway; but see State v. Mitchell, 300 N.C. 305 (1980), and United States v. Shepherd, 714 F.2d 316 (4th Cir. 1983), in which warrantless seizures on private premises were proper.] The opinion also relied on Chambers v. Maroney, 399 U.S. 42 (1970), in upholding the warrantless seizure because evidence indicated that the car might be removed from the parking lot by others. Exigent circumstances existed in this case, even though officers might have obtained a search warrant earlier in the day before the defendant arrived with his car. The Court stated that a search warrant need not be obtained at the first practicable moment.

Chambers v. Maroney, 399 U.S. 42 (1970). The defendant and others committed an armed robbery and drove away in a car. Witnesses described both the car and the suspects to officers. Within an hour of the robbery, the officers stopped a car and its occupants that matched the descriptions given earlier. All occupants were arrested and the car was seized and taken to the police station, where a thorough warrantless search was conducted. Evidence of the robbery and another robbery committed a week before was found: weapons, the robbery victim’s glove with money inside, and cards bearing the name of an earlier robbery victim. The Court ruled that under Preston v. United States, 376 U.S. 364 (1964), the search could not be justified as incident to the arrests because it was made at another place—a police station—sometime after the arrests. But the Court upheld the warrantless search of the car at the police station by extending Carroll v. United States, 267 U.S. 132 (1925), ruling that if there is probable cause to search a vehicle when it is stopped on the highway, officers may make a warrantless search on the highway or take the car to the police station and conduct a warrantless search there.

Cooper v. California, 386 U.S. 58 (1967). The defendant was arrested for selling heroin and his car was impounded because state law made it subject to forfeiture. The officers searched the car without a warrant one week after its seizure. (The actual forfeiture occurred about four months after the seizure.) The Court ruled that the warrantless search was reasonable under the Fourth Amendment, noting that the officers had a right to search the car for their own protection. See also United States v. Pace, 898 F.2d 1218 (7th Cir. 1990).

Carroll v. United States, 267 U.S. 132 (1925). An officer who has probable cause to believe that a vehicle has contraband liquor may stop the vehicle on the highway and search it there without a warrant. The Court recognized a constitutional distinction between warrantless searches of a house and a car: the mobility of a car makes it impracticable to secure a warrant.

North Carolina Supreme Court

State v. Isleib, 319 N.C. 634 (1987). An officer received information that established probable cause to believe that the following day, the defendant would be driving a certain car containing marijuana. The next day—about twenty hours after receiving that information—the officer saw that car being driven on a highway, stopped and searched it without a search warrant, found marijuana inside, and seized it from the car.

The court rejected the defendant’s argument that a search warrant was required because the officer had had sufficient time to obtain one before the search. The court, after examining United States Supreme Court decisions, ruled that no exigent circumstances other than the motor vehicle itself are required to make a warrantless search of a vehicle when there is probable cause to believe that it contains evidence of a crime and the vehicle is in a public place. The court based its ruling on provisions of both the United States Constitution and the Constitution of North Carolina.

State v. Mitchell, 300 N.C. 305 (1980). Officers had the right to make a warrantless seizure (and search) of a parked car at a private residence because there was no indication that it could not be moved and the defendant was still at large and could have driven the car away while a warrant was being obtained. See also United States v. Shepherd, 714 F.2d 316 (4th Cir. 1983).

North Carolina Court of Appeals

State v. Parker, 277 N.C. App. 531 (2021). The court ruled that regardless of whether the scent of marijuana emanating from a vehicle continues to be sufficient to establish probable cause to search the vehicle—the defendant-driver in this case argued that it was not a sufficient basis because hemp is legal and the smell of hemp and marijuana are indistinguishable—the officer here had probable cause based on additional factors, which included the passenger’s admission that he just smoked marijuana and the partially smoked marijuana cigarette he produced from his sock. The court also considered the officer’s subjective belief that the substance he smelled was marijuana to be additional evidence supporting probable cause, even if the officer’s belief might have been mistaken. The court rejected the defendant-driver’s contention that probable cause had to be particularized to him, citing case law that if probable cause justifies a search of a vehicle, an officer may search every part of the vehicle and its contents that may conceal the object of the search.

State v. Burton, 251 N.C. App. 600 (2017). The court rejected the defendant’s claim that counsel was ineffective by failing to object to the admission of cocaine found during an officer’s warrantless search of the defendant’s vehicle and also rejected the defendant’s argument that the State was required to prove that the defendant’s car was “readily mobile” in order for the automobile exception to the warrant requirement to apply. The officer searched the vehicle after smelling a strong odor of marijuana and seeing an individual sitting in the passenger seat with marijuana on his lap. The cocaine was found during a subsequent search of the vehicle. The vehicle was parked on the street when the search occurred, and no evidence suggested that it was incapable of movement.

State v. Mitchell, 224 N.C. App. 171 (2012). The court ruled that the discovery of marijuana on a passenger provided probable cause to search a vehicle. After an officer stopped the defendant and determined that he had a revoked license, the officer told the defendant that the officer’s K-9 dog would walk around the vehicle. At that point, the defendant indicated that his passenger had a marijuana cigarette, which she removed from her pants. The officer then searched the car and found marijuana in the trunk.

State v. Simmons, 201 N.C. App. 698 (2010). An officer stopped a vehicle to issue the driver a seat-belt citation. The officer noticed a white plastic grocery bag sticking out of the storage holder on the passenger side of the defendant’s vehicle. He was suspicious that the bag contained illegal contraband because he had found illegal contraband in that sort of container on at least three prior occasions. The officer asked the defendant what was in the bag. The defendant responded that it contained “cigar guts.” The officer took this response to mean that tobacco had been removed from a cigar. He had previously seized marijuana in cigars. Based on his training, he had learned that marijuana was sometimes placed in cigars to be smoked. However, the officer could not see inside the bag, nor did he smell any illegal contraband. The officer searched the bag. The court ruled that the defendant’s response that the grocery bag contained cigar guts did not, without more information, establish probable cause to search the bag. The officer’s training and experience established a link between the presence of hollowed-out cigars and marijuana, not a link between the presence of loose tobacco and marijuana. Furthermore, there was no evidence that the defendant was stopped in a drug area or at an unusual time of day.

State v. Martin, 97 N.C. App. 19 (1990). When an officer stopped a car for a traffic violation, he noticed empty vials in the car, which he recognized as being used for selling cocaine. Relying on United States v. Ross, 456 U.S. 798 (1982), discussed above in this section under “UNITED STATES SUPREME COURT,” the court ruled that the officer had probable cause to search without a warrant the rest of the car, including the trunk, for illegal drugs.

State v. Russell, 92 N.C. App. 639 (1989). After the defendant was arrested, officers seized the defendant’s car from his driveway and searched it without a warrant. The court found that this violated the Fourth Amendment because, although the officers had probable cause to seize and search the car, there were no exigent circumstances, there was no consent to permit the officers to act without a search warrant, and their conduct could not be justified under the plain-view doctrine set out in Coolidge v. New Hampshire, 403 U.S. 443 (1971) (but note that the inadvertence requirement of the plain-view doctrine was later overruled in Horton v. California, 496 U.S. 128 (1990)). The ruling in this case is questionable; see Capraro v. Bunt, 44 F.3d 690 (8th Cir. 1995) (warrantless seizure of truck in driveway did not violate Fourth Amendment; truck’s position in clear public view on defendant’s driveway eliminated any privacy expectation otherwise resulting from its location on private property); United States v. McIver, 186 F.3d 1119 (9th Cir. 1999) (similar ruling involving entry on driveway to place electronic tracking device under vehicle).

State v. Poczontek, 90 N.C. App. 455 (1988). An informant told an officer that the defendant usually used marijuana while driving away from his store after work. Two weeks later, the officer, after learning that the defendant’s car was improperly registered, followed him from the store and stopped his car. The officer neither smelled nor saw anything to indicate that the defendant had consumed alcohol or used marijuana. The court ruled that the officer did not have probable cause to search the defendant’s vehicle.

State v. Russell, 84 N.C. App. 383 (1987). The court applied the rationale of the vehicle search case, United States v. Ross, 456 U.S. 798 (1982), discussed above in this section under “UNITED STATES SUPREME COURT,” to uphold the warrantless search of an airplane and the containers within it when the officers had probable cause to believe that the airplane contained illegal drugs. The officers had seized the airplane and its occupants when the airplane landed at a rural airport late at night.

State v. Bennett, 65 N.C. App. 394 (1983). When the defendant was arrested for driving under the influence, an officer saw on the car floor evidence from a break-in that had occurred about a week earlier. He therefore had probable cause to search without a warrant (under United States v. Ross, 456 U.S. 798 (1982), discussed above in this section under “UNITED STATES SUPREME COURT,” the rest of the car for additional property taken from the break-in.

State v. Schneider, 60 N.C. App. 185 (1982). An undercover agent bought 88 pounds of marijuana from the defendant at his house and agreed to buy more. The defendant told the agent that more was on the way. When the codefendant drove up in his car to the defendant’s house, both the defendant and the codefendant were arrested and the car was searched. The court ruled that the officer’s initial warrantless search of the car’s trunk was proper under United States v. Ross, 456 U.S. 798 (1982), discussed above, and Michigan v. Thomas, 458 U.S. 259 (1982), also discussed above.

Federal Appellate Courts

United States v. Gastiaburo, 16 F.3d 582 (4th Cir. 1994). An officer’s warrantless search of a hidden compartment of a car that occurred thirty-eight days after the car had been seized and impounded was reasonable under the Fourth Amendment. The officer conducted the warrantless search on the day he learned that the hidden compartment contained drugs, money, and a handgun. See also United States v. Spires, 3 F.3d 1234 (9th Cir. 1993) (warrantless search of truck seven days after it was impounded as a forfeited asset was proper).

United States v. Hatley, 15 F.3d 856 (9th Cir. 1994). The court ruled that the automobile exception to the search warrant requirement applied to a car that appeared to an officer to be mobile, even though it was not actually mobile. An officer is not required to determine the actual functional capacity of a car to satisfy the automobile exception.

Probable Cause to Search a Vehicle

(This topic is discussed in the chapter text under “Search and Seizure of Vehicles with Probable Cause.”)

North Carolina Supreme Court

State v. Mitchell, 300 N.C. 305 (1980). Probable cause existed to search and seize an old white Pinto car when (1) a car matching that description was involved in two recent robberies, (2) the defendant was known to drive such a car, (3) a man whose description matched that of the defendant had been involved in both robberies, and (4) the tire tread on one of the Pinto’s tires matched the tire impression found at the scene of one of the robberies.

State v. Allen, 282 N.C. 503 (1973). Officers had probable cause to search a car because (1) they had earlier seen near the car two men who had run from the area behind a closed company building in the early morning hours, (2) they saw a bag of money in the car that was wrapped with material bearing the company’s name, and (3) one of the defendants fled from the car when an officer commented about the money.

State v. Simmons, 278 N.C. 468 (1971). Officers had probable cause to seize jugs they saw in a car because they knew that jugs like the ones in the car were commonly used as containers for non-tax-paid liquor.

State v. Shedd, 274 N.C. 95 (1968). The defendants were arrested at the scene of a commercial plant break-in and safecracking, and numerous implements of the crimes were found in the possession of the defendants, who showed officers where their car was parked—only 100 yards from the plant. These facts provided probable cause to search the car for evidence of these crimes.

North Carolina Court of Appeals

State v. Toledo, 204 N.C. App. 170 (2010). An officer noted the odor of marijuana emanating from a spare tire in the luggage area of a Chevrolet Suburban after the defendant had validly consented to a search of the vehicle. The officer had conducted a “ping” test, pressing the tire valve to release some of the air, and noted a very strong odor of marijuana. The officer arrested the defendant for possession of marijuana. The officer then warrantlessly searched a second spare tire located in the undercarriage of the vehicle and noted the odor of marijuana after conducting a ping test. Marijuana was found in both spare tires. At issue was the validity of the search of the second spare tire. The court ruled, relying on United States v. Ross, 456 U.S. 798 (1982), that the officer had probable cause to make a warrantless search for more marijuana in the rest of the vehicle, which included the second spare tire. [Author’s note: The Toledo court appeared, in footnote 34 of its opinion, to suggest a separate justification for the search of the vehicle, including the spare tire in the undercarriage, under Arizona v. Gant, 556 U.S. 332 (2009) (Court ruled that officers may search vehicle incident to arrest only if (1) arrestee is unsecured and within reaching distance of passenger compartment when search is conducted or (2) it is reasonable to believe that evidence relevant to crime of arrest might be found in vehicle), because it was reasonable to believe that the vehicle contained evidence of the crime of arrest, possession of marijuana. However, a search of the spare tire in the undercarriage would not be subject to a search of a vehicle incident to arrest because a search under that justification is limited to the vehicle’s interior.]

State v. Corpening, 200 N.C. App. 311 (2009). The defendant approached a checkpoint in his vehicle, pulled over, and parked on the side of the road about 100 to 200 feet before the checkpoint. He sat alone in the vehicle for about thirty to forty-five seconds. An officer then walked up to the vehicle and smelled a marijuana odor emanating from it. The court ruled that the officer’s “plain smell” of the marijuana provided probable cause to conduct a warrantless search of the vehicle. The court also ruled that the defendant’s argument that the checkpoint was unconstitutional was irrelevant because the defendant stopped solely on his own volition (that is, the defendant was not seized under the Fourth Amendment). Also, the officer did not conduct a seizure by simply approaching the vehicle to investigate.

State v. Smith, 192 N.C. App. 690 (2008). An officer stopped a Ford pickup truck for failing to display a proper registration tag. After the stop, the officer smelled the odor of marijuana emanating from the vehicle. Two other officers conducted a warrantless search (the defendant refused to give consent) and recovered a handgun in the bed (cargo area) of the vehicle. The bed was fitted with a lift-up cover. The officers did not find any marijuana. The court ruled, citing State v. Greenwood, 301 N.C. 705 (1981), that the odor of marijuana emanating from the vehicle provided probable cause to make a warrantless search of the vehicle.

State v. Nixon, 160 N.C. App. 31 (2003). Officer A received information from an informant he knew to be reliable that the defendant shortly would meet with a named person at a specified restaurant to purchase marijuana and then return to his home driving a specified vehicle. Officer A relayed that information to Officer B, telling him that it came from a CRI (confidential and reliable informant). Officer B relayed the information to Officer C, who conducted a warrantless search of the vehicle for marijuana. Officer A testified at the suppression hearing and established that the informant had given him information several times over the previous two years and that the information had been correct every time and had led to several arrests. The court ruled that this and the information given to Officer A provided probable cause to search the defendant’s vehicle. The court noted, relying on United States v. Hensley, 469 U.S. 221 (1985), that (1) an officer who takes a law enforcement action (in this case, the warrantless search) need not know the facts establishing probable cause when directed in that action by another officer who has probable cause and (2) for the evidence seized to be admissible at trial, those facts are to be provided at a suppression hearing if they are necessary to support the law enforcement action. The court distinguished State v. Hughes, 353 N.C. 200 (2000), because in that case the officer with knowledge of the information about an informant did not testify at the suppression hearing (or supply that information to other officers who testified at the suppression hearing).

State v. Earhart, 134 N.C. App. 130 (1999). The court ruled that the following information established probable cause to search a vehicle for drugs. On April 27, 1999, Deputy Sheriff A received an anonymous telephone call that a white Trans Am would be traveling to a residence on North Spot Road in Powell’s Point sometime between April 27 and April 28 and that it might be accompanied by a blue Subaru. The caller stated that the Trans Am would be transporting a pound of marijuana. The caller did not identify himself, and the deputy sheriff did not recognize the voice. The caller telephoned the deputy a few minutes later and told him that the suspects in the vehicle had scanners and that information should not be broadcast over police radio. The deputy notified other deputies (Deputy Sheriff B and Deputy Sheriff C) of this information. Deputy B told Deputy A that he had received information from the State Bureau of Investigation (SBI) about the owner of a white Trans Am who lived on North Spot Road and who was being investigated for drug dealing; also, the suspect was reportedly armed with a Desert Eagle handgun. Deputy C began surveillance along North Spot Road after 6:00 p.m. on April 27, 1997. Deputy B contacted him there and informed him that the white Trans Am would have a license number of KPA-1083 and would be driven by a person named Earhart, who was known to carry weapons. Shortly thereafter, Deputy C saw a blue Subaru, matching the description given by the anonymous informant, pull into the driveway of a residence along North Spot Road. The deputy pulled behind the car and learned from the female driver that Earhart drove a white Trans Am and was the boyfriend of the woman whom she was visiting at this residence. Later that evening, Deputy C stopped a white Trans Am driven by the defendant (whose last name is Earhart). A warrantless search of the vehicle resulted in the seizure of cocaine. The court concluded that the informant’s information, the SBI’s information, and the deputies’ independent investigation collectively supported probable cause to search the Trans Am.

State v. Holmes, 109 N.C. App. 615 (1993). The court ruled that reasonable suspicion existed to stop a vehicle based on the following facts. A trained drug officer saw the defendant driving slowly into a neighborhood known for violence and illegal drugs. From his car, the defendant engaged two different groups of people in conversation, and he then went inside a house personally known to the officer because he had made drug arrests there. The defendant then returned to the car after a few minutes and lit a cigarette, which he shared with two passengers until it was gone and the car was filled with smoke. Based on his training, the officer believed the cigarette was a marijuana cigarette. The defendant then placed a plastic bag in the trunk of the car and went back into the house alone for about thirty seconds. When the defendant returned to the car, he carefully concealed an object underneath the driver’s seat. After the officer stopped the car, he opened a passenger door to question a passenger and saw two needles and syringes in a small compartment on the car door. The officer then arrested the passenger for possession of drug paraphernalia and searched the rest of the car.

The court ruled that the officer had probable cause to search the rest of car, including the area underneath the driver’s seat, for more contraband based on United States v. Ross, 456 U.S. 798 (1982), and State v. Martin, 97 N.C. App. 19 (1990). See also State v. Parker, 183 N.C. App. 1 (2007) (officer had probable cause to search vehicle for illegal drugs, including locked briefcase found inside vehicle).

State v. Corpening, 109 N.C. App. 586 (1993). A deputy sheriff responded to a report that the defendant’s van had caught fire and was off the highway in the lot of an old store. The fire had been extinguished when the deputy sheriff arrived. The deputy, who had been an officer for thirteen years and had smelled “white liquor” many times, detected the odor of that substance coming from the van. The court ruled that the deputy’s detection of the odor was sufficient to establish probable cause to search the van (in addition, the defendant had acted very nervous and had placed cardboard over a burned-out window), and thus the warrantless search of the van was constitutional, based on State v. Isleib, 319 N.C. 634 (1987).

State v. Mackey, 56 N.C. App. 468 (1982). The court ruled that an officer who made a warrantless search of a van for marijuana did not have probable cause because he did not know, either independently or from fellow officers, that the van was being used to store or transport marijuana. The officer knew only that a search of a house with a warrant had discovered a small amount of marijuana and packaging material for a much larger quantity and that immediately after that search, the officer who searched the house broadcast an all-points bulletin for the van. The officer in this case later searched a vehicle that matched the bulletin’s description of the van. The court’s opinion does not describe the contents of the all-points bulletin. [Author’s note: If the bulletin had directed officers to search the van and probable cause had existed for that search, the officer who searched the van would not himself have needed to know the facts supporting probable cause. See United States v. Hensley, 469 U.S. 221 (1985).]

State v. Rogers, 56 N.C. App. 457 (1982). An officer had probable cause to search a car without a warrant when (1) he knew that goods had been stolen from a business a few days earlier, (2) the defendant returned some of the stolen goods when a reward was offered, (3) the defendant ran from the officer at a drive-in when the officer sought to talk to him, and (4) the defendant’s car was parked in the drive-in’s parking lot.

State v. Greenwood, 47 N.C. App. 731 (1980), rev’d on other grounds, 301 N.C. 705 (1981). The odor of marijuana emanating from a vehicle gave the officer probable cause to search the vehicle. The court rejected the analysis in cases from other jurisdictions that distinguished—in determining probable cause—whether the odor was from burning or burned marijuana. See also State v. Cornelius, 104 N.C. App. 583 (1991); State v. Trapper, 48 N.C. App. 481 (1980); United States v. Johns, 469 U.S. 478 (1985); United States v. Haley, 669 F.2d 201 (4th Cir. 1982); United States v. Reed, 882 F.2d 147 (5th Cir. 1989).

State v. Vernon, 45 N.C. App. 486 (1980). The co­defendant, who had arranged a drug sale at a motel, arrived there in his own car. The defendant, who acted as the lookout or bodyguard for the sale, arrived separately. The court ruled that after the codefendant and the defendant were arrested at the motel, there was no probable cause to search the defendant’s car. The court’s additional observation—that even if probable cause existed to search the codefendant’s car, a search warrant was required—is questionable in light of Chambers v. Maroney, 399 U.S. 42 (1970), discussed above under “Vehicles, Including Containers within Vehicles,” “Generally,” “UNITED STATES SUPREME COURT,” and later cases, such as California v. Carney, 471 U.S. 386 (1985), discussed above under “Vehicles, Including Containers within Vehicles,” “Generally,” “UNITED STATES SUPREME COURT.”

State v. Chambers, 41 N.C. App. 380 (1979). An officer saw the defendant sell marijuana in a plastic bag to an informant in February 1978. At that sale, the defendant was driving a pickup truck. On April 18, 1978, the officer observed various events that gave him probable cause to search that pickup truck. (1) The defendant met with the codefendant at a gas station but did not buy any gas there; the defendant inspected the codefendant’s right hip pocket, and they met again at an auto agency parking lot. (2) The pickup truck then went to the defendant’s house and returned to an auto agency lot, where the defendant transferred a large dark bag from the back of his truck to the trunk of the codefendant’s vehicle. A search without a warrant of the codefendant’s vehicle was upheld under the authority of Chambers v. Maroney, 399 U.S. 42 (1970), discussed above under “Vehicles, Including Containers within Vehicles,” “Generally,” “UNITED STATES SUPREME COURT.” A warrant was not required even though the vehicle was seized on the auto agency lot and the officer could have seized the car and then obtained a warrant from a magistrate, who was only one and one-half miles away.

State v. Tickle, 37 N.C. App. 416 (1978). Following Draper v. United States, 358 U.S. 307 (1959), the court ruled that an officer had probable cause to search the defendant’s car based on an informant’s purchase of drugs from that car an hour earlier. Furthermore, although the officer did not know then about the informant’s reliability, the informant’s detailed information was probably reliable, and the officer had corroborated some of it.

Federal Appellate Courts

United States v. Patterson, 150 F.3d 382 (4th Cir. 1998). Two masked men robbed a bank. After being arrested, Greene confessed that he was one of the robbers. He told an officer that the defendant was the other robber. He also gave the officer the defendant’s address and a detailed description of his car. The car was later seized. The court ruled, noting a similar ruling in Craig v. Singletary, 127 F.3d 1030 (11th Cir. 1997) (en banc), that Greene’s information supplied probable cause to seize the car. The court noted that it would be anomalous to permit an accomplice’s uncorroborated testimony to convict a defendant but not permit an accomplice’s confession to establish probable cause to arrest and search (unless it contains inaccurate information or is not credible).

United States v. Turner, 119 F.3d 18 (D.C. Cir. 1997). An officer’s observation of pieces of torn cigar paper arrayed around the driver of a car and a ziplock bag of green weed material on the floor on the driver’s side of the car, along with the smell of burnt marijuana emanating from the car, established probable cause to search the car’s trunk for marijuana. The court rejected the defendant’s argument that the search of the trunk was unlawful because the officer’s observations constituted evidence of nothing more than personal use of marijuana, and a person would keep marijuana within his or her control and not in the trunk of a car.

United States v. Padro, 52 F.3d 120 (6th Cir. 1995). The court ruled that an anonymous informant’s detailed information about a specific vehicle—including its license plate number—that would be bringing cocaine to a particular city was sufficient evidence to establish probable cause to search the vehicle when an officer extensively corroborated the information.

Seizure of a Vehicle Subject to Forfeiture

(This topic is discussed in the chapter text under “Seizure of a Vehicle Subject to Forfeiture.”)

NORTH CAROLINA COURT OF APPEALS

State v. Chisholm, 135 N.C. App. 578 (1999). The court ruled that state vehicle seizure and forfeiture laws involving the offense of driving while impaired did not violate the Fourth, Fifth, or Fourteenth Amendments to the United States Constitution or Article I, Section 19, of the North Carolina Constitution.

State v. Hall, 52 N.C. App. 492 (1981). On March 12, 1979, the defendant opened the door to his station wagon, reached in to pick up a paper sack containing one pound of marijuana, and sold it to an undercover agent for $355. On April 9, 1979, a district court judge issued an order to seize the station wagon for forfeiture under G.S. 90-112 for the act committed on March 12, 1979. The court ruled that G.S. 90-112(f) does not necessarily restrict the time within which a vehicle may be seized after a controlled-substances violation has been observed that makes the vehicle subject to forfeiture, provided that an undercover operation would be jeopardized by an immediate seizure. See generally United States v. Pace, 898 F.2d 1218 (7th Cir. 1990) (Fourth Amendment permits warrantless seizure of vehicle for forfeiture).

Search of a Vehicle for Its Identification

(This topic is discussed in the chapter text under “Search of a vehicle to determine ownership.”)

United States Supreme Court

New York v. Class, 475 U.S. 106 (1986). After stopping a vehicle for traffic violations and after the driver had left the car, an officer conducted a proper search—without needing reasonable suspicion or probable cause—by entering the car to remove papers on the dashboard that prevented the car’s Vehicle Identification Number (VIN) from being seen from outside the car. Before entering the car to remove the papers, the officer had opened the driver’s door and had unsuccessfully looked on the doorjamb for the VIN. He then properly seized a weapon he saw in plain view.

NORTH CAROLINA COURT OF APPEALS

State v. Green, 103 N.C. App. 38 (1991). An officer stopped the defendant’s car to investigate possible impaired driving. After the officer’s investigation, he no longer believed that the defendant had been driving while impaired. However, the officer did not believe the defendant’s statements about his name, birth date, and address on his driver’s license. The officer then entered the defendant’s car to find the defendant’s license, registration, or other form of identification and found drugs in the glove box. The court ruled that the officer did not have authority to enter the car because (1) he did not have probable cause to search; (2) he had no safety justification because he had already frisked the defendant and searched the car for weapons; and (3) his intrusion into the car was not justified under New York v. Class, 475 U.S. 106 (1986), discussed above in this section under “UNITED STATES SUPREME COURT.”

State v. Baker, 65 N.C. App. 430 (1983). The defendant left his truck at a garage for servicing. A Division of Motor Vehicles inspector, with the garage operator’s consent, opened the truck door to check the plate serial number and walked under the already lifted truck to obtain the manufacturer’s frame number. In addition to upholding the inspector’s action based on the garage operator’s consent, the court upheld the inspector’s action as a reasonable search because he knew that the vehicle was stolen and that a serial number plate was missing on another of the defendant’s trucks. The inspector had at least reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968), to make a search by opening the truck door and looking for the plate serial number.

Containers (Other Than in Vehicles)

Probable Cause

(This topic is discussed in the chapter text under “Search and Seizure of Containers with Probable Cause.”)

UNITED STATES SUPREME COURT

United States v. Jacobsen, 466 U.S. 109 (1984). A warrantless seizure of a container is constitutional when there is probable cause to believe it contains contraband. However, a search of such a container—when its outward appearance supports a reasonable expectation of privacy in its contents—must be conducted with a search warrant unless some other justification for a warrantless search exists. See also United States v. Johns, 469 U.S. 478 (1985), and cases cited therein, and United States v. Villarreal, 963 F.2d 770 (5th Cir. 1992) (defendants had reasonable expectation of privacy in 55-gallon drums being shipped by common carrier; warrantless search was illegal).

NORTH CAROLINA SUPREME COURT

State v. Wise, 117 N.C. 105 (1994). A State Highway Patrol trooper stopped a vehicle for speeding. He saw the defendant-passenger grab his midsection between his stomach and his belt line with both hands. Reaching in from the driver’s side of the car, the trooper patted down the defendant and felt a “round cylinder object” in the area that the defendant had grabbed, but he determined that it was not a weapon. The trooper asked the defendant what he had grabbed, which prompted the defendant to reach inside his jacket and hand the trooper a white, nontransparent Bayer aspirin bottle. The trooper shook the bottle and it “rattled lightly,” sounding as if it had “BBs in it.” He was suspicious because such a bottle normally has cotton in it, so the rattle would not sound the same. The trooper then opened the bottle, shined his flashlight in it, looked inside, and saw what he determined was rock cocaine. The court ruled that the officer unconstitutionally opened the bottle because (1) there was no evidence that the defendant consented to a search of the bottle and (2) there was not probable cause to believe, based on these facts, that the bottle contained illegal drugs.

NORTH CAROLINA COURT OF APPEALS

State v. Porter, 65 N.C. App. 13 (1983). An officer had probable cause to seize a suitcase at the airport without a search warrant (a later search of the suitcase was conducted with a search warrant) based on the following facts: (1) an informant reported that the defendant and her husband were bringing drugs from New York into the airport, (2) hashish had been found in the defendant’s purse, (3) the defendant was traveling under an assumed name, (4) an unclaimed suitcase was tagged with the name Barbara Williams and a passenger with the same name had canceled an earlier flight and had been listed on a later flight on which the defendant arrived, and (5) the defendant’s name was not listed on the passenger list of either flight.

FEDERAL APPELLATE COURTS

United States v. Donnes, 947 F.2d 1430 (10th Cir. 1991). During a warrantless entry of a house, an officer found a syringe and a camera lens case inside a glove that was lying on the living room floor. The officer’s opening of the camera lens case (in which drugs were discovered) without a search warrant violated the Fourth Amendment. The court stated that the defendant had a reasonable expectation of privacy in the contents of the lens case and that no exception to the warrant requirement applied here.

Reasonable Suspicion

(This topic is discussed in the chapter text under “Search and Seizure of Evidence with Reasonable Suspicion.”)

UNITED STATES SUPREME COURT

United States v. Place, 462 U.S. 696 (1983). Based on Terry v. Ohio, 392 U.S. 1 (1968), officers may briefly seize luggage at an airport when they have reasonable suspicion that it contains drugs. However, in this case the seizure was unreasonably long because the luggage was detained for about ninety minutes, and officers could have had a dog sniff the luggage at the airport earlier because they had several hours’ advance notice of when the luggage would arrive. Compare with United States v. Sturgis, 238 F.3d 956 (8th Cir. 2001) (two-hour wait for drug dog did not violate Fourth Amendment because officers had probable cause to arrest detained defendant).

NORTH CAROLINA SUPREME COURT

State v. Odum, 343 N.C. 116 (1996). The court, per curiam and without an opinion, reversed the decision of the court of appeals, 119 N.C. App. 676 (1995), that had affirmed the defendant’s conviction. The court stated that the decision was reversed for the reasons stated in the dissenting opinion in the court of appeals.

Officers were working drug interdiction at the Raleigh train station. They had received information from a ticket agent that the defendant had purchased a train ticket with cash, using small bills; had departed Raleigh for New York City on April 27; and was to return on the afternoon of April 29. The officers also learned that the defendant had previously been arrested for attempted robbery in New Jersey, although the charge had been dismissed. When the train arrived in Raleigh on April 29, the defendant left the train carrying a red nylon gym bag and appeared to be headed toward a car in the parking lot in which a female was sitting. The officers approached the defendant, showed him their badges, and asked him to answer a few questions. The defendant agreed to talk to them, and they all moved over to the sidewalk. When asked to produce his train ticket, the defendant showed the officers a ticket stub bearing the name D. Odum (his name was David Odum). When asked for identification, the defendant became visibly nervous when he could not find his identification. When he looked into his gym bag for identification, one of the officers saw that the defendant was apparently trying to conceal the contents of the bag. The defendant finally told the officers that he could not find any identification. Although the defendant objected, the officers then seized his gym bag while awaiting the arrival of a drug-detection dog to sniff it. They told the defendant that he was free to leave and that if he left an address with them, they would have the bag delivered to him. During this conversation, the defendant informed the officers that the woman sitting in the car was his ride. One officer testified at the suppression hearing that the woman neither spoke nor made eye contact with the defendant during the entire questioning period.

The dissenting opinion concluded that reasonable suspicion did not exist to support the seizure of the gym bag. The evidence, as a whole, could easily be associated with many travelers. Many travelers daily embark on trips similar to the defendant’s, and the fact that the defendant paid for his ticket in cash was not remarkable, considering the price was $107. The opinion noted that one officer testified that there was no evidence that the defendant had any prior involvement with drugs and that the prior robbery charge that was later dismissed was not a sufficient reflection of a person’s propensity to be involved in drug trafficking. The court also noted that one of the officers testified that the defendant did not give him any false information during the interaction at the train station. The officers never inquired about the nature of the defendant’s trip, nor was there evidence of any questions that might have bolstered their suspicions. Although the defendant became visibly nervous when he could not find his identification, the opinion noted that it is not uncommon for a person to appear nervous when approached by a law enforcement officer. Also, the actions of the woman in the car and the defendant’s reluctance to let the officers see what was in his bag did not provide reasonable suspicion.

FEDERAL APPELLATE COURTS

United States v. Cagle, 849 F.2d 924 (5th Cir. 1988). Officers’ detention of the defendant’s suitcase for one and one-half hours while they awaited the arrival of a narcotics dog was unreasonable. See also United States v. $191,910 in U.S. Currency, 16 F.3d 1051 (9th Cir. 1994) (two-hours delay to await arrival of narcotics dog to sniff luggage was unreasonable).

United States v. West, 731 F.2d 90 (1st Cir. 1984). Drug agents seized the defendant’s luggage at the airport with reasonable suspicion that it contained drugs. The defendant was allowed to continue on to his flight and was told how to contact agents to get his luggage back. The luggage was detained for twenty to thirty-five minutes until a dog sniffed it and detected drugs. Following United States v. Place, 462 U.S. 696 (1983), the court ruled that the detention of the luggage was reasonable. (In this case, the dog was already at the airport when the luggage was seized.) See also United States v. Borys, 766 F.2d 304 (7th Cir. 1985) (court upheld a seventy-five-minute detention of luggage to await a dog sniff); United States v. Hooper, 935 F.2d 484 (2d Cir. 1991) (detention of luggage for thirty minutes was proper); United States v. Alpert, 816 F.2d 958 (4th Cir. 1987) (fifty-minute detention of briefcase for dog sniff was reasonable); United States v. Cooper, 873 F.2d 269 (11th Cir. 1989) (thirty-five-minute detention of luggage for dog sniff was reasonable).

Probable Cause to Search a Person

(This topic is discussed in the chapter text under “Search of a Person for Evidence with Probable Cause.”)

NORTH CAROLINA SUPREME COURT

State v. Smith, 342 N.C. 407 (1995). The state supreme court, per curiam and without an opinion, reversed the decision of the court of appeals, 118 N.C. App. 106 (1995), that had awarded the defendant a new trial. The court stated that the decision was reversed for the reasons stated in the dissenting opinion in the court of appeals. The dissenting opinion concurred without additional comment with the majority opinion on issue (1), discussed below, and disagreed with the majority opinion on issue (2), which is set out below as discussed in the dissenting opinion—except some facts are excerpted from the majority opinion.

(1) An officer had known the defendant for two to three years and had information that he was operating a drug house and selling drugs in a certain area of Fayetteville. The officer received a phone call at 12:15 a.m. on May 12, 1992, from a reliable informant who told the officer that the defendant would be driving a red Ford Escort with a specific license plate and going to an unknown location to purchase cocaine. The informant said that the defendant then would go to a particular apartment on Johnson Street where he would package the cocaine, and then would go to a house on Buffalo Street where he would sell it. The informant told the officer that the defendant would have the cocaine concealed in or under his crotch when he left the Johnson Street apartment. The officer and other officers took the informant to Johnson Street, where the informant pointed out the apartment and the Ford Escort. At approximately 1:15 a.m. on May 12, 1992, the defendant left the apartment in the Ford Escort. Officers stopped the defendant’s car in the middle of Johnson Street where it intersected with Bragg Boulevard. The time was 1:30 a.m. The officers had probable cause to make a warrantless search of the defendant, including his crotch area.

(2) After stopping the defendant’s vehicle, an officer informed the defendant that he was going to search him completely by using his flashlight and his hands. He asked the defendant to step behind the car door of the defendant’s vehicle, which was open, and the officer stood between him and the car door on the outside. After the defendant opened his trousers, the officer could not see underneath the defendant’s scrotum and testicles and therefore asked the defendant to pull down his underwear. Because the defendant resisted, the officer slid the defendant’s underwear down and pointed his flashlight there. He saw the corner of a small paper towel underneath the defendant’s scrotum. He pulled the underwear further. The defendant resisted. The officer pushed the defendant into the door, reached underneath the defendant’s scrotum, and removed the paper towel that contained cocaine.

Before the search, the officer asked the defendant to step behind the open car door of his vehicle, and the officer positioned himself between the defendant and the car door on the outside. The officer testified that he took these steps because he did not want to embarrass the defendant in public. The defendant did not dispute the officer’s testimony. The court of appeals opinion stated that the officer took reasonable precautions to prevent the public exposure of the defendant’s private areas and that “[w]hile there may have been other less intrusive means of conducting the search . . . the availability of those less intrusive means does not automatically transform an otherwise reasonable search into a Fourth Amendment violation.” 118 N.C. App. at 118. The search did not violate the Fourth Amendment.

NORTH CAROLINA COURT OF APPEALS

State v. Burton, 251 N.C. App. 600 (2017). The court rejected the defendant’s claim that counsel was ineffective by failing to object to the admission of cocaine found during an officer’s warrantless search of the defendant’s vehicle and also rejected the defendant’s argument that the State was required to prove that the defendant’s car was “readily mobile” in order for the automobile exception to the warrant requirement to apply. The officer searched the vehicle after smelling a strong odor of marijuana and seeing an individual sitting in the passenger seat with marijuana on his lap. The cocaine was found during a subsequent search of the vehicle. The vehicle was parked on the street when the search occurred, and no evidence suggested that it was incapable of movement.

State v. Williams, 209 N.C. App. 255 (2011). Probable cause and exigent circumstances supported an officer’s warrantless search of the defendant’s mouth by grabbing him around the throat, pushing him onto the hood of a vehicle, and demanding that he spit out whatever he was trying to swallow. Probable cause to believe that the defendant possessed illegal drugs and was attempting to destroy them was supported by information from three reliable informants and the following facts: (1) the defendant’s vehicle was covered in talcum powder, which is used to mask the odor of drugs; (2) while the officer was conducting a consent search of the defendant’s person, the defendant attempted to swallow something; and (3) other suspects had attempted to swallow drugs in the officer’s presence. Exigent circumstances existed because the defendant attempted to swallow four packages of cocaine, which could have endangered his health.

State v. Yates, 162 N.C. App. 118 (2004). An officer conducted a warrantless search of the defendant when he detected the odor of marijuana about his person. The officer was qualified to recognize the odor of marijuana. Relying on cases from other states, the court ruled that the officer’s detection of the odor of marijuana about the defendant’s person provided probable cause to search him and that exigent circumstances existed to support the warrantless search of the defendant. [Author’s note: A warrantless search often may be justified by an additional theory that does not rely on a finding of exigent circumstances. Because an officer has probable cause to arrest a defendant for possession of marijuana based on the detection of the odor, a warrantless search may be conducted before an arrest as a search incident to arrest, as long as the search is contemporaneous with the arrest. See Rawlings v. Kentucky, 448 U.S. 98 (1973); State v. Mills, 104 N.C. App. 724 (1991).]

State v. Pittman, 111 N.C. App. 808 (1993). Two officers were on patrol at a train station at 1:30 a.m. They saw the female defendant and a man speak and then part company when they saw the officers. Officer Gunn approached the defendant, and Officer Ferrell approached the man. The defendant showed Gunn a train ticket and stated that she was traveling alone and did not know the man with whom she had been seen. Gunn noticed that the defendant was constantly looking over at the man, who was twenty feet away. The defendant consented to a search of her bag; nothing was found. Meanwhile, Ferrell spoke with the man, who said he was traveling alone and did not know the defendant. The man consented to a search of his bag; nothing was found. Later a vehicle pulled up to the train station, and the man put his bag in the trunk. The man then motioned to the defendant to approach the car. He placed her bag in the trunk, and the two of them got in the car and left. The officers compared information they had learned from their encounters with the man and the defendant and had the car stopped by a uniformed officer. A female officer was called to the scene to search the defendant, who refused to consent to a search at that time and was instead taken to the police station and searched.

(1) The court ruled that Officer Gunn did not seize the defendant at the train station. He merely approached her and asked a few questions, and she voluntarily gave him her train ticket and consented to a search of her bag. The court relied on Florida v. Bostick, 501 U.S. 429 (1991). (2) The court ruled that, based on the facts discussed above, the officers had reasonable suspicion to stop the vehicle in which the defendant was a passenger. (3) The court ruled that, based on the facts discussed above, the officers did not have probable cause to search the defendant after the vehicle stop

Warrantless Entry with Exigent Circumstances to Search a Place for Evidence or Weapons

(This topic is discussed in the chapter text under “Exigent Circumstances to Enter Home with Probable Cause to Search for Evidence” and “Entering a home to seize weapons for self-protection.”)

United States Supreme Court

Kentucky v. King, 563 U.S. 452 (2011) [Author’s note: The Court in this case delineated the scope of the rule that allows officers to enter a residence without a search warrant to search for evidence of a crime when exigent circumstances exist. It assumed without deciding that exigent circumstances existed, and thus the reader should remember that the Court did not decide this issue.] Officers set up a controlled buy of crack cocaine outside an apartment complex. After an undercover officer watched the deal occur, he radioed uniformed officers to move in, telling them that the suspect was moving quickly toward the breezeway of an apartment building and urging them to hurry before the suspect entered an apartment. As the uniformed officers ran into the breezeway, they heard a door shut and detected a strong odor of burnt marijuana. At the end of the breezeway, the officers saw two apartments, one on the left and one on the right; they did not know which apartment the suspect had entered. Because they smelled marijuana coming from the apartment on the left, the officers approached that door, banged on it as loudly as they could, and announced their presence as the police. They heard people and things moving inside, leading them to believe that drug-related evidence was about to be destroyed. The officers then announced that they were going to enter, kicked in the door, and went in. On these facts, the state appellate court determined that the exigent circumstances rule did not allow a warrantless entry because the officers should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. The Court rejected this interpretation and stated that “the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable . . .” Id. at 462. It concluded: “Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.” Id. (footnote omitted). The Court ruled that the exigent circumstances rule applied to authorize the warrantless entry when the officers knocked on the door of the residence and announced their presence and, as a result, the occupants attempted to destroy evidence.

The Court rejected additional requirements for the exigent circumstances rule that would bar officers from entering premises without a warrant if (1) officers had a bad-faith intent to avoid obtaining a search warrant; (2) it was reasonably foreseeable that officers’ investigative tactics would create exigent circumstances; (3) after acquiring evidence sufficient to establish probable cause, officers did not seek a search warrant but instead knocked on the door and sought either to speak with an occupant or to obtain consent to search; (4) the officers’ investigation was contrary to standard or good law enforcement practices; and (5) officers impermissibly created an exigency when they engaged in conduct that would cause a reasonable person to believe that entry was imminent and inevitable.

Mincey v. Arizona, 437 U.S. 385 (1978). The Court rejected a “murder scene exception” to the Fourth Amendment’s requirement that a search warrant is generally necessary to search a house. It ruled that a four-day warrantless search of an apartment where a homicide took place was unconstitutional. There were no exigent circumstances—that is, there was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant. The Court recognized an officer’s authority (1) to enter and search without a warrant when the officer reasonably believes that a person within a home needs immediate aid and (2) to make a prompt warrantless search of a house to determine whether there are other victims or suspects on the premises. (See additional cases below under “Search of a Crime Scene” and “Search of a Fire Scene.”)

G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). A warrantless search of a business office located in private premises was unconstitutional because there were no exigent circumstances to justify a warrantless search. Officers had delayed entry into the office for more than a day after they saw materials being removed from the office.

Vale v. Louisiana, 399 U.S. 30 (1970). Officers arrested the defendant outside his home. A warrantless search of the home for drugs was not justified because there was no emergency: the drugs were not about to be destroyed or removed. But see United States v. Turner, 650 F.2d 526 (4th Cir. 1981) (a warrantless entry into an apartment was justified because a person inside might have observed his accomplice’s arrest outside and destroyed drugs).

Trupiano v. United States, 334 U.S. 699 (1948). A warrantless search of a building containing an illegal still was unconstitutional because officers had had probable cause to obtain a search warrant for about three weeks and did not do so; thus, exigent circumstances did not exist to justify a warrantless search.

North Carolina Supreme Court

State v. McKinney, 361 N.C. 53 (2006). Amy advised law enforcement that her roommate, Aja, had told her that Aja’s friend, the defendant, had killed his roommate. The address of the residence where the defendant and victim apparently lived was supplied to law enforcement. Officers arrived at the residence and were advised that the defendant was reportedly driving the victim’s vehicle, which was not in the driveway. The victim’s sister arrived and informed officers that the victim lived there. The victim’s brother arrived shortly thereafter. Officers learned that neither the brother nor the sister had had any contact with the victim in several days and that the victim had not reported for work the prior day, which was very unusual. The officers also learned that the defendant had told Aja that the victim had pulled a knife on the defendant and that the victim “wouldn’t be coming back.” The victim’s brother then entered the house through a window and officers followed him. The officers saw what appeared to be blood spatter in the front bedroom and other indications of blood elsewhere in the house; they secured the house, obtained a search warrant, and thereafter discovered the victim’s body in a large garbage can in the house. The court ruled that the officers did not have exigent circumstances to enter the house without a search warrant to look for the possible missing victim.

State v. Taylor, 298 N.C. 405 (1979). Even though the defendant had been arrested outside a house, officers had reason to fear for their safety from the possible use of a firearm by someone inside the house. Therefore, exigent circumstances permitted a warrantless search of the house to find the weapon.

North Carolina Court of Appeals

State v. Marrero, 248 N.C. App. 787 (2016). The court ruled that the trial court properly denied a motion to suppress evidence when (1) the defendant was not illegally seized during a knock and talk and (2) exigent circumstances justified the officers’ warrantless entry into the defendant’s home. The court rejected the defendant’s argument that he was illegally seized during the knock and talk because he was coerced into opening his front door. The officers knocked on the defendant’s front door a few times and stated that they were with the police only once during the two to three minutes it took the defendant to answer the door. There was no evidence that the defendant was aware of the officers’ presence before he opened the door. Blue lights from nearby police cars were not visible to the defendant and no takedown lights were used. The officers did not try to open the door themselves or demand that it be opened. The court concluded: “[T]he officers . . . did not act in a physically or verbally threatening manner” and no seizure of the defendant occurred during the knock and talk. Id. at 793. Furthermore, exigent circumstances supported the officers’ warrantless entry into the defendant’s home. Officers arrived at the defendant’s residence because of an informant’s tip that armed suspects were going to rob a marijuana plantation located inside the house. When the officers arrived for the knock and talk, they did not know whether the robbery had occurred, was in progress, or was imminent. As soon as the defendant opened his door, an officer smelled a strong odor of marijuana. Based on that odor and the defendant’s inability to understand English, the officers entered the defendant’s home and secured it in preparation for obtaining a search warrant. On these facts, the trial court did not err in concluding that exigent circumstances warranted a protective sweep for officer safety and to ensure that neither the defendant nor others would destroy evidence.

State v. Nowell, 144 N.C. App. 636 (2001), aff’d, 355 N.C. 273 (2002). A drug courier working with law enforcement officers and wearing a body wire delivered approximately 50 pounds of marijuana to a residence where the purchaser and his accomplice were waiting for the delivery of the marijuana. When an officer heard through a radio transmitter that the purchaser and his accomplice were about to roll a marijuana cigarette from the marijuana and smoke it, law enforcement officers entered the residence without a search warrant. The court ruled that the officers did not have exigent circumstances to enter the residence to seize the marijuana.

State v. Frazier, 142 N.C. App. 361 (2001). The defendant and his girlfriend were staying long term in a motel room. The motel owners received an anonymous letter indicating that drugs were being sold in that motel room. When they informed the defendant of the letter, the defendant neither denied nor confirmed that he was selling drugs. After speaking with the motel owners, an officer decided to do a knock and talk. The girlfriend allowed the officer to enter the motel room. As the officer entered, he saw the defendant lying on a bed. The defendant got off the bed and walked toward the bathroom. The officer asked the defendant if the defendant had a problem with the officer coming in and talking with him and his girlfriend. The defendant did not respond and continued walking toward the bathroom. The officer repeated what he had said, and the defendant told the officer that he could come into the room. As the defendant continued to walk away from the officer, the defendant looked back with what the officer felt was “a suspicious sort of look.” The officer asked the defendant to stop. Instead, the defendant continued walking and made a “lunge” behind a wall and shut the bathroom door. Fearing for his safety and for the safety of the officers with him, the officer forced the bathroom door open and found the defendant between the door and the tub with his hands in the ceiling tiles—where the officer later found crack cocaine and other items.

The court ruled that, based on this evidence, the officer had probable cause and exigent circumstances to follow the defendant into the bathroom to search for illegal drugs. The court noted the following factors, among others, in determining that probable cause existed: the defendant’s suspicious behavior, his flight from the officers, and the officer’s knowledge of the defendant’s past criminal conduct. The court also noted that the anonymous letter in this case would have been insufficient by itself to establish probable cause. The court noted that the following factors, among others, are considered when determining whether exigent circumstances exist: a defendant’s fleeing or seeking to escape, the possible destruction of illegal drugs, and a degree of probable cause to believe that the defendant committed the crime at issue.

State v. Wallace, 111 N.C. App. 581 (1993). Officers received information from an informant that marijuana was being grown in the basement of a residence. However, the officers were unable to corroborate the informant’s information. Therefore, they went to the residence to investigate. After the officers knocked on the door, Jolly came out and closed the door behind him. The officers told him why they were there and asked him if there were others in the residence. Jolly told the officers that one of his roommates was asleep inside. The officers then asked for consent to search the residence. Before Jolly could answer, Wallace came out of the residence. The officers then asked for consent to search, which Wallace and Jolly denied. Jolly then stated that “there might be some drug paraphernalia and marijuana seeds in the house” and that he would not consent to a search until he had time to get rid of the contraband. Id. at 583. After the officers were denied consent to search, they heard footsteps in the residence and a door shut on the inside. The officers asked Wallace and Jolly who was in the residence, and they said they did not know because they had just arrived. The officers then went inside to execute a protective sweep before leaving the residence to obtain a search warrant. The officers saw what appeared to be marijuana plants while inside. The defendants were detained in the residence while the officers obtained a search warrant, which included information about their observation of marijuana in the house.

The court ruled as follows: (1) Uncorroborated information initially given to the officers was insufficient to establish probable cause to search the residence. (2) The officers did not violate the defendants’ rights by going to the residence to investigate. (3) Probable cause existed to search the residence when Jolly made the quoted statement above. (4) The officers did not have exigent circumstances to enter the residence without a search warrant. The court stated that the “record is devoid of any evidence that the officers entered the residence with a reasonably objective belief that evidence was about to be removed or destroyed.” Id. at 587. The court noted that the only purpose of the officers’ entry into the residence was to conduct a protective sweep until a search warrant could be obtained and that the officers did not believe that they were in danger at any time. (5) The State could not justify the search of the residence under the independent-source exception to the exclusionary rule; see Murray v. United States, 487 U.S. 533 (1988); Segura v. United States, 468 U.S. 796 (1984). In this case, the search warrant was prompted by what the officers saw in their unlawful entry, and the information obtained during the illegal entry was presented to the magistrate and affected the decision to issue the search warrant.

State v. Mackins, 47 N.C. App. 168 (1980). Two persons were shot in their car at night by a person in a house. One victim called a law enforcement agency. Officers arrived at the house and called for the defendant to come out. He did so after an hour. The officers handcuffed him on the front porch. The court ruled that a later warrantless entry into the house to find the weapon used in the shooting was justified by exigent circumstances—to protect the officers and others.

State v. Prevette, 43 N.C. App. 450 (1979). Exigent circumstances permitted officers to enter a house without a search warrant when (1) they saw marijuana through the front screen door and also saw persons within and outside the house who presented a danger to their safety and could possibly destroy the evidence, (2) the suspects were aware of the officers’ presence, and (3) it would have taken at least one hour to get a search warrant.

State v. Sneed, 36 N.C. App. 341 (1978). Officers obtained a search warrant to search the defendant’s motel room for stolen and forged checks used in a professional forgery scheme. When the officers arrived, they learned that the defendant and others had moved to another motel after they saw that the officers were checking car license plates at the first motel. Officers drove to various motels until they recognized several cars at one motel and saw an accomplice enter a particular room. Believing that the accomplice had seen them watching him go into the room, the officers conducted an immediate warrantless search. The court ruled that exigent circumstances permitted the warrantless search based on these and other facts set out in its opinion.

Federal Appellate Courts

United States v. Limares, 269 F.3d 794 (7th Cir. 2001). Law enforcement officers obtained an anticipatory search warrant for the search of a residence to which a package of drugs, with a radio transmitter placed inside, was being delivered. The recipient left the residence with a bag large enough to hold the package shortly after the delivery, and the radio transmitter told officers that the package had been opened. The recipient walked a few blocks and entered another residence. Fearing that the occupants of this residence would destroy the package and its contents, officers entered the premises without a search warrant. The court ruled that exigent circumstances supported the officers’ warrantless entry.

United States v. Jones, 239 F.3d 716 (5th Cir. 2001). Officers conducted a knock and talk at an apartment based on a complaint that drugs were being sold there. As the officers approached the apartment, the door was open but the screen door was shut. One of the officers announced his presence and could see into the apartment through the screen door. A handgun was on the kitchen table in the officers’ plain view. The defendant was standing with his back to the door near the table. The court ruled that exigent circumstances existed to permit the officers to enter the apartment to protect themselves from the possible use of the weapon against them.

United States v. Tovar-Rico, 61 F.3d 1529 (11th Cir. 1995). Officers did not have exigent circumstances to enter an apartment to seize illegal drugs when the only reason supporting exigent circumstances—that the suspects were aware of the officers’ presence and might destroy the drugs—was not supported by the evidence presented at the suppression hearing.

United States v. Reed, 935 F.2d 641 (4th Cir. 1991). Exigent circumstances existed to justify an officer’s warrantless entry into a trailer home to seize a sawed-off shotgun he saw resting against the wall near a man sleeping on a couch.

United States v. MacDonald, 916 F.2d 766 (2d Cir. 1990) (en banc). An undercover officer was admitted to an apartment where he purchased marijuana. He noticed a person with a cocked semiautomatic weapon, another person counting a stack of money and within reach of a .357 Magnum revolver, large quantities of marijuana and cocaine, and four other people. He also detected the odor of marijuana smoke. Ten minutes after the controlled purchase, the officer returned to the apartment with several officers. After knocking on the door and identifying themselves, they heard the sounds of shuffling feet. Officers elsewhere advised them by radio that the occupants of the apartment were attempting to escape through a bathroom window. The officers then used a battering ram to force entry.

The court ruled that the officers had exigent circumstances to enter the apartment based on these facts: (1) the grave nature of the ongoing crimes; (2) the presence of loaded weapons; (3) a likelihood that the suspects were using drugs; (4) a clear and immediate threat of danger to law enforcement officers and to the public; (5) not just probable cause, but actual knowledge, that the suspect committed the crime; (6) a strong reason to believe that the suspects were in the apartment; (7) a likelihood, that became reality, that a suspect might escape if not quickly arrested; (8) an urgent need to prevent a loss of evidence; (9) the additional time required to obtain a warrant at the late evening hour; and (10) the officers’ attempt to enter peacefully. The court also ruled that when officers act in a lawful manner—in this case, knocking on the door—they do not impermissibly create exigent circumstances. See also United States v. Medina, 944 F.2d 60 (2d Cir. 1991); United States v. Gorfils, 982 F.2d 64 (2d Cir. 1992).

United States v. Timberlake, 896 F.2d 592 (D.C. Cir. 1990). Exigent circumstances did not exist to justify officers’ warrantless entry into an apartment. Although one of the three non-uniformed officers smelled the odor of PCP, there was no evidence that PCP fumes presented a danger of explosion; thus, there was no danger to people or property. There also was no evidence that individuals inside the apartment were aware of the officers’ presence, and therefore there was no evidence that destruction of evidence was imminent. See also United States v. Radka, 904 F.2d 357 (6th Cir. 1990) (no objectively reasonable likelihood that people on premises would have observed law enforcement activity outside premises); United States v. Lynch, 934 F.2d 1226 (11th Cir. 1991) (similar ruling; no evidence that individuals in home would become suspicious when confederates were arrested away from home).

United States v. Lindsey, 877 F.2d 777 (9th Cir. 1989). Exigent circumstances existed to justify officers’ warrantless entry into a house when, after arresting a drug courier who had obtained drugs from the house, the officers obtained information that individuals inside the house possessed guns and bombs and would become suspicious when the drug courier failed to return there after the sale.

United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir. 1988). Exigent circumstances existed to justify officers’ entering an apartment without a warrant and securing the apartment while a search warrant was obtained because the officers had an objectively reasonable belief that the destruction of drugs was imminent. The officers could reasonably believe that their arrest of a drug dealer and his continued absence from the apartment would alert his accomplice in the apartment to destroy the drugs there. See also United States v. Socey, 846 F.2d 1439 (D.C. Cir. 1988); United States v. Lai, 944 F.2d 1434 (9th Cir. 1991); United States v. Munoz, 894 F.2d 292 (8th Cir. 1990); United States v. Schaper, 903 F.2d 891 (2d Cir. 1990) (reasonable belief existed that evidence might be destroyed if house was not immediately secured); United States v. Halliman, 923 F.2d 873 (D.C. Cir. 1991) (similar ruling; hotel room); United States v. Tobin, 923 F.2d 1506 (11th Cir. 1991) (en banc) (based on facts occurring before officers knocked on door and then smelled odor of marijuana after door was opened, exigent circumstances existed to enter house to prevent destruction of evidence); United States v. Carr, 939 F.2d 1442 (10th Cir. 1991) (similar ruling; smell of PCP after door was opened); United States v. Grissett, 925 F.2d 776 (4th Cir. 1991) (exigent circumstances permitted warrantless entry into motel room after door was opened and officers smelled odor of marijuana; officers did not create exigency because person previously arrested elsewhere in motel had directed officers to this room as place where someone could identify him); United States v. Cephas, 254 F.3d 488 (4th Cir. 2001) (exigent circumstances permitted warrantless entry into apartment when officer, after receiving anonymous information that named person was smoking marijuana with 14-year-old girl in apartment, corroborated that named person lived there, knocked on door, saw young girl in apartment, and smelled odor of marijuana coming from apartment, and person who opened apartment door tried to slam door shut).

Warrantless Entry for a Nonsearch Purpose

(This topic is discussed in the chapter text under “Entry or Search of a Home to Render Emergency Assistance or for Self-Protection.”)

UNITED STATES SUPREME COURT

Michigan v. Fisher, 558 U.S. 45 (2009). Officers responded to a disturbance call. A couple directed them to a house where a man was “going crazy.” Officers saw a pickup truck in the driveway with its front smashed; damaged fence posts along the side of the property; and three broken windows, the glass still on the ground outside. The officers also saw blood on the pickup’s hood and on clothes inside the pickup, as well as on one of the doors to the house. Through a window to the house, they could see the defendant screaming and throwing things. The back door was locked, and a couch had been placed to block the front door. The officers knocked, but the defendant refused to answer. They saw that he had a cut on his hand, and they asked him whether he needed medical attention. The defendant ignored these questions and demanded, with accompanying profanity, that the officers get a search warrant. One of the officers pushed the front door and entered the house. The Court ruled that a straightforward application of the emergency-aid exception, as in Brigham City v. Stuart, 547 U.S. 398 (2006) (law enforcement officers may enter a home without a search warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury), dictated that the officer’s entry into the house was reasonable under the Fourth Amendment. The Court stated that the state appellate court in this case had erred in replacing Brigham City’s objective inquiry into what the situation appeared like to the officers with its hindsight determination that there was in fact no emergency:

“It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. . . . It sufficed to invoke the emergency aid exception that it was reasonable to believe that [the defendant] had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that [the defendant] was about to hurt, or had already hurt, someone else.” Fisher, 558 U.S. at 49.

Brigham City v. Stuart, 547 U.S. 398 (2006). At about 3:00 a.m., four law enforcement officers responded to a call concerning a loud party at a residence. They heard shouting from inside and entered the driveway to investigate. They saw two juveniles drinking beer in the backyard. The officers entered the backyard and saw—through a screen door and windows—four adults attempting with some difficulty to restrain a juvenile. The juvenile eventually broke free, swung a fist, and struck one of the adults in the face. One of the officers saw the victim of the blow spitting blood into a nearby sink. The other adults continued to attempt to restrain the juvenile, pressing him against a refrigerator with such force that the refrigerator began moving across the floor. An officer opened the screen door and announced the officers’ presence. Amid the tumult, nobody noticed the officer. The officer entered the kitchen and again spoke, and as the occupants slowly became aware that the officers were there, the altercation stopped.

The Court ruled that law enforcement officers may enter a home without a search warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. The Court found that the officers’ entry in this case was reasonable under the Fourth Amendment. The officers had an objectively reasonable basis for believing that the injured adult might need help and that the violence in the kitchen was just beginning. Also, the manner of the officers’ entry was reasonable. Once they made an announcement, they were free to enter. They were not required to await a response while those within fought, oblivious to their presence. The Court, relying on its prior Fourth Amendment cases, rejected an inquiry into the officers’ subjective motivation in entering the residence. An action is reasonable under the Fourth Amendment, regardless of an officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. It did not matter whether the officers entered the kitchen to make an arrest and gather evidence against those inside or to assist injured persons and prevent further violence. The circumstances, viewed objectively, supported the entry based on a belief that an occupant was seriously injured or imminently threatened with such injury.

NORTH CAROLINA SUPREME COURT

State v. Braswell, 312 N.C. 553 (1985). Two deputy sheriffs went to the defendant–deputy sheriff’s house to inform him of his wife’s violent death. The defendant’s empty patrol car was parked in his driveway with the driver’s door open. The officers found an empty revolver and a necktie with a bullet hole through it. These facts justified the officers’ warrantless entry into the house because they had reason to believe that the defendant might be injured and need assistance. But see United States v. Moss, 963 F.2d 673 (4th Cir. 1992) (based on facts in case, officer did not have objectively reasonable belief that concern for health of cabin’s occupants justified warrantless entry into and search of cabin).

NORTH CAROLINA COURT OF APPEALS

State v. Jordan, 242 N.C. App. 464 (2015). The court ruled that the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of a warrantless search of her residence. According to the court: “The trial court’s findings that the officers observed a broken window, that the front door was unlocked, and that no one responded when the officers knocked on the door are insufficient to show that they had an objectively reasonable belief that a breaking and entering had recently taken place or was still in progress, such that there existed an urgent need to enter the property” and that the search was justified under the exigent circumstances exception to the warrant requirement. Id. at 465. The court continued:

In this case, the only circumstances justifying the officers’ entry into defendant’s residence were a broken window, an unlocked door, and the lack of response to the officers’ knock at the door. We hold that although these findings may be sufficient to give the officers a reasonable belief that an illegal entry had occurred at some point, they are insufficient to give the officers an objectively reasonable belief that a breaking and entering was in progress or had occurred recently. Id. at 473–74.

State v. China, 150 N.C. App. 469 (2002). An officer and two victims of a burglary that had occurred within an hour approached an apartment where they believed the burglary suspect was located. As they approached, they heard a violent argument emanating from inside the apartment. The officer knocked on the door, the door opened, and the officer walked inside. One person was sitting in the living room with a knife in her hand, and the defendant walked out of the kitchen bleeding profusely from his forearm. The court ruled, citing State v. Woods, 136 N.C. App. 386 (2000), and Mincey v. Arizona, 437 U.S. 385 (1978), that the officer’s warrantless entry into the apartment did not violate the Fourth Amendment because he reasonably believed that someone inside needed immediate assistance.

State v. Woods, 136 N.C. App. 386 (2000). Officers were dispatched to investigate an alarm sounding at the defendant’s residence. After arriving at the residence, an officer heard the alarm and saw that the rear door of the residence was open. After announcing his presence and identity, he heard no response from inside the residence. The officer conducted a cursory search of the residence for potential victims or suspects. He found no one but saw evidence of a break-in. He and other officers reentered the residence to conduct a more thorough search, looking again for victims and suspects. In the master bedroom, they opened a drawer in a standing chest that was about fifteen to twenty inches deep, twenty-five to thirty inches long, and eighteen inches wide; they discovered a bag of green vegetable material and then radioed drug officers to come to the scene. In the area containing the kitchen and living room, they saw a cabinet that was about thirty-four inches tall and forty-eight inches wide. While attempting to open the doors to the cabinet, an officer moved a chair and heard a noise underneath it. His flashlight revealed a tear on the bottom of the chair and a bag inside that appeared to contain money. He opened the cabinet door but found nothing. Officers later obtained a search warrant and discovered various drugs, money, and drug paraphernalia. The court ruled that the officers’ warrantless entries into the residence were justified on both exigent circumstances and probable cause grounds but that the search of the cabinet and chair were not lawful. The exigency here was a belief by officers that victims or suspects might still be in the residence; thus, any prewarrant search should have been limited to places in the residence where a body might be hidden.

Relying on United States v. Dart, 747 F.2d 263 (4th Cir. 1984), and other cases, the court ruled that officers’ warrantless entry into a residence to investigate a possible break-in was justified by exigent circumstances and thus was reasonable under the Fourth Amendment. It was clear that a break-in had occurred, and the officers had reason to believe that the intruders or victims could still be in the residence. The court also ruled, relying on Mincey v. Arizona, 437 U.S. 385 (1978), that the officers’ search of a chest of drawers, chair, and cabinet exceeded the scope of the permissible search for suspects and victims. It was unreasonable to believe that a small child could have been found in the cabinet based on the facts in this case. Because the fruits of the illegal searches established probable cause for the search warrant, the evidence seized was inadmissible at trial.

Strip Search of a Person

(This topic is discussed in the chapter text under “Strip searches and body-cavity searches.”)

NORTH CAROLINA SUPREME COURT

State v. Stone, 362 N.C. 50 (2007). The court ruled that a search of a defendant in which an officer shined a flashlight inside the defendant’s underwear, when the defendant had given consent to a generic search for weapons or drugs during a routine traffic stop, was not within the scope of the defendant’s consent to search and thus violated the Fourth Amendment. An officer stopped a car for speeding. The officer asked the defendant, a passenger, whether he had any drugs or weapons on his person. The defendant said no, which prompted the officer to ask for consent to search. The defendant gave consent. The defendant was wearing a jacket and drawstring sweatpants. During the initial search, the officer found $552 in cash in the lower left pocket of the sweatpants. He again asked the defendant if he had anything on him. Once again, the defendant denied having drugs or weapons and authorized the officer to continue the search. The officer checked the rear of the sweatpants and moved his hands to the front of the defendant’s waistband. The officer then pulled the defendant’s sweatpants away from his body and trained his flashlight on the defendant’s groin area. The defendant objected, but by that time, the officer had already seen the white cap of what appeared to be a pill bottle tucked in between the defendant’s inner thigh and testicles. The court concluded that a reasonable person would not have understood that his consent included such an examination. The scope of a general consent to search does not necessarily include consent for an officer to move clothing to directly observe the genitals of a clothed person. The court noted that its ruling was necessarily predicated on the facts of this case and that different actions by the officer could have led to a different result. [Author’s note: The only basis on which the State justified the officer’s search was consent. Thus, the court did not discuss whether probable cause and exigent circumstances supported the search. See State v. Smith, 342 N.C. 407 (1995), reversing the court of appeals for reasons stated in the dissenting opinion, 118 N.C. App. 106 (1995), discussed in the court’s opinion.]

State v. Smith, 342 N.C. 407 (1995). The state supreme court, per curiam and without an opinion, reversed the decision of the court of appeals, 118 N.C. App. 106 (1995), that had awarded the defendant a new trial. The court stated that the decision was reversed for the reasons stated in the dissenting opinion in the court of appeals. The dissenting opinion concurred without additional comment with the majority opinion on issue (1), discussed below, and disagreed with the majority opinion on issue (2), which is set out below as discussed in the dissenting opinion—except some facts are excerpted from the majority opinion.

(1) An officer had known the defendant for two to three years and had information that he was operating a drug house and selling drugs in a certain area of Fayetteville. The officer received a phone call at 12:15 a.m. on May 12, 1992, from a reliable informant who told the officer that the defendant would be driving a red Ford Escort with a specific license plate and going to an unknown location to purchase cocaine. The informant said that the defendant then would go to a particular apartment on Johnson Street where he would package the cocaine, and then would go to a house on Buffalo Street where he would sell it. The informant told the officer that the defendant would have the cocaine concealed in or under his crotch when he left the Johnson Street apartment. The officer and other officers took the informant to Johnson Street, where the informant pointed out the apartment and the Ford Escort. At approximately 1:15 a.m. on May 12, 1992, the defendant left the apartment in the Ford Escort. Officers stopped the defendant’s car in the middle of Johnson Street where it intersected with Bragg Boulevard. The time was 1:30 a.m. The officers had probable cause to make a warrantless search of the defendant, including his crotch area.

(2) After stopping the defendant’s vehicle, an officer informed the defendant that he was going to search him completely by using his flashlight and his hands. He asked the defendant to step behind the car door of the defendant’s vehicle, which was open, and the officer stood between him and the car door on the outside. After the defendant opened his trousers, the officer could not see underneath the defendant’s scrotum and testicles and therefore asked the defendant to pull down his underwear. Because the defendant resisted, the officer slid the defendant’s underwear down and pointed his flashlight there. He saw the corner of a small paper towel underneath the defendant’s scrotum. He pulled the underwear further. The defendant resisted. The officer pushed the defendant into the door, reached underneath the defendant’s scrotum, and removed the paper towel that contained cocaine.

Before the search, the officer asked the defendant to step behind the open car door of his vehicle, and the officer positioned himself between the defendant and the car door on the outside. The officer testified that he took these steps because he did not want to embarrass the defendant in public. The defendant did not dispute the officer’s testimony. The court of appeals opinion stated that the officer took reasonable precautions to prevent the public exposure of the defendant’s private areas and that “[w]hile there may have been other less intrusive means of conducting the search . . . the availability of those less intrusive means does not automatically transform an otherwise reasonable search into a Fourth Amendment violation.” 118 N.C. App. at 118. The search did not violate the Fourth Amendment.

State v. Johnson, 225 N.C. App. 440 (2013). The court ruled (1) that probable cause and exigent circumstances supported an officer’s roadside search of the defendant’s underwear conducted after a vehicle stop and (2) that the search was conducted in a reasonable manner. After finding nothing in the defendant’s outer clothing, the officer placed the defendant on the side of his vehicle, with the vehicle between the defendant and the travelled portion of the highway. Other troopers stood around the defendant to prevent passersby from seeing him. The officer pulled out the front waistband of the defendant’s pants and looked inside. The defendant was wearing two pairs of underwear—an outer pair of boxer briefs and an inner pair of athletic compression shorts. Between the two pairs of underwear the officer found a cellophane package containing several smaller packages. There was probable cause to search when the defendant smelled of marijuana, officers found a scale of the type used to measure drugs in his car, a drug dog alerted in his car, and during a pat-down the officer noticed a blunt object in the inseam of the defendant’s pants. Because narcotics can be easily and quickly hidden or destroyed, especially after a defendant has notice of an officer’s intent to discover whether the defendant possessed them, such exigent circumstances may be sufficient to justify a warrantless search, as was the case here. In addition, the search here was conducted in a reasonable manner. Although the officer did not see the defendant’s private parts, the level of the defendant’s exposure was relevant to analyze whether the search was reasonable. The court reasoned that the officer had a sufficient basis to believe that contraband was in the defendant’s underwear, including the fact that although the defendant smelled of marijuana, a search of his outer clothing found nothing, the defendant turned away from the officer when the officer frisked his groin and thigh area, and the officer felt a blunt object in the defendant’s crotch area during the pat-down. Finally, the court concluded that the officer took reasonable steps to protect the defendant’s privacy when conducting the search.

State v. Robinson, 221 N.C. App. 266 (2012). [Author’s note: There was a dissenting opinion in this case, but the defendant later withdrew his appeal to the North Carolina Supreme Court, 366 N.C. 247 (2012).] The court ruled that an officer had probable cause to arrest the defendant after he felt something hard between the defendant’s buttocks during a weapons frisk. The officer properly inferred that the defendant may be hiding drugs in his buttocks. The officer knew that the defendant was sitting in a car parked in a high-crime area, a large machete was seen in the car, and a passenger possessed what appeared to be cocaine. When officers began to speak with the vehicle’s occupants, the defendant dropped a large sum of cash on the floor and made a quick movement behind his back. The court also ruled that the searching officer had a sufficient basis to believe that the defendant had contraband beneath his underwear and that he took reasonable steps to protect the defendant’s privacy during an intrusive search that discovered a clear plastic baggie of crack cocaine located between the defendant’s buttocks. The officer shielded the defendant from public view by opening his patrol car’s rear door and standing directly behind the defendant. The patrol car’s lights were not turned on. The shining of the officer’s flashlight into the defendant’s pants was the only illumination in the immediate vicinity, and there were no other people in the search area. The officer did not put his hands or his flashlight down the defendant’s pants.

State v. Fowler, 220 N.C. App. 263 (2012). The court ruled that two roadside strip searches of the defendant by officers were reasonable and constitutional. First, the court rejected the State’s argument that the searches were not strip searches. During both searches the defendant’s private areas were observed by an officer, and during the second search the defendant’s pants were removed and an officer searched inside the defendant’s underwear with his hand. Second, the court ruled that probable cause supported the searches. The officers stopped the defendant’s vehicle for speeding after receiving information from another officer and his informant that the defendant would be traveling on a specified road in a silver Kia carrying 3 grams of crack cocaine. The strip searches occurred after a consensual search of the defendant’s vehicle produced marijuana but no cocaine. The court found competent evidence to show that the informant, who was known to the officers and had previously provided reliable information, provided sufficient reliable information, corroborated by an officer, to establish probable cause to believe that the defendant would be carrying a small amount of cocaine in his vehicle. When the consensual search of the defendant’s vehicle did not produce the cocaine, the officers had sufficient probable cause, under the totality of the circumstances, to believe that the defendant was hiding the drugs on his person. Third, the court found that exigent circumstances supported the searches. Specifically, the officer knew that the defendant had prior experience with jail intake procedures and that he could reasonably expect that the defendant would attempt to get rid of evidence in order to prevent his going to jail. Fourth, the court found that the searches were reasonable. The trial court had determined that although the searches were intrusive, the most intrusive one occurred in a dark area away from the traveled roadway, with no one other than the defendant and the officers in the immediate vicinity. In addition, the trial court found that the officer did not pull down the defendant’s underwear or otherwise expose his bare buttocks or genitals, and no females were present or within view during the search. The court determined that these findings supported the trial court’s conclusion that, although the searches were intrusive, they were conducted in a discreet manner, away from the view of others, and they were limited in scope to finding a small amount of cocaine based on the corroborated tip of a known, reliable informant.

State v. Battle, 202 N.C. App. 376 (2010). Officers received a tip from a confidential informant that three named people were going to be driving to Durham in a specific vehicle to obtain cocaine and then transport it back to Granville County, exiting at the Linden Avenue exit off Interstate 95. The officers stopped the vehicle shortly after it exited there. It was daylight (a summer day around 5:00 p.m.). Two male passengers were searched and no illegal drugs were found. The third passenger, a female, was strip searched by a female officer between the open doors of the vehicle at the roadside. The officer conducting the search pulled the female passenger’s underwear out from her body and discovered a folded five-dollar bill and a crack pipe.

(1) The opinion for the court, which was not joined by two of the judges on the three-judge panel, noted that for purposes of this appeal, it was assumed that the officers had probable cause to arrest the defendant and search her incident to arrest. However, the opinion stated that for a roadside strip search to be constitutional, there must be both probable cause and exigent circumstances to show that some significant government or public interest would be endangered were law enforcement officers to wait until they could conduct the search in a more-discreet location, usually at a private location within a law enforcement facility. The opinion, which extensively discussed the facts and case law from North Carolina and other jurisdictions, ruled that the strip search violated the defendant’s Fourth Amendment rights. The opinion stated that the trial court’s order denying the defendant’s motion to suppress did not show that there were exigent circumstances justifying any search more intrusive than that allowed incident to any arrest. (2) A second judge on the three-judge panel concurred only in the result (granting the defendant’s motion to suppress) without an opinion. (3) A third judge on the three-judge panel concurred with an opinion that noted that the North Carolina Supreme Court in State v. Stone, 362 N.C. 50 (2007) (defendant’s general consent to search did not include officer’s flashlight search of genitals inside defendant’s underwear), had ruled that an officer’s search with at least questionable consent was not permissible under the Fourth Amendment. And because the search in Battle without the defendant’s consent was more intrusive than that in Stone, it was not permissible under the Fourth Amendment. [Author’s note: Although a majority of the three-judge panel agreed that the strip search violated the Fourth Amendment, there was not majority agreement as to why the search violated the Fourth Amendment.]

State v. Neal, 190 N.C. App. 453 (2008). The defendant was convicted of several cocaine offenses. The court ruled, relying on the standards set out in Florida v. Jimeno, 500 U.S. 248 (1991), and State v. Stone, 362 N.C. 50 (2007), that the scope of the defendant’s consent to search included a strip search. An officer detected a mild odor of marijuana coming from the passenger side of a car in which the defendant was seated. The defendant consented to both a pat-down search of her person to check for weapons and a search of her purse. A drug dog reacted to the passenger side of the car. While the canine search was being conducted, the defendant acted very nervous and often put her hands in and out of the back of the waistband of her pants. An officer noticed a bulge in the back of the defendant’s pants, and she was instructed to keep her hands away from the waistband. The officer informed the defendant that he wanted to conduct a better search to determine what was located in the back of her pants and that he had contacted a female officer for assistance. The female officer conducted a search of the defendant in a women’s bathroom, with another officer standing outside the door to prevent others from entering. The female officer explained to the defendant that she would be conducting a more-thorough search. The defendant indicated that she understood. During the search, the defendant was asked to lower her underwear, and a package containing cocaine fell out. The female officer testified that the defendant was “very cooperative, extremely cooperative” during the search and never expressed any misgivings about the scope of the search.

State v. Johnson, 143 N.C. App. 307 (2001). Based on information that the defendant was selling crack cocaine in his apartment, officers executed a search warrant authorizing a search of the defendant and his apartment for illegal drugs. During the search, the officers seized two shotguns and a pair of electronic scales. An initial search of the defendant revealed almost $2,000 in small denominations. The officers then asked the defendant to remove his clothing and to bend over at the waist. When he did, they saw a piece of plastic protruding from his anus. The defendant complied with the officers’ request that he remove the package, which contained seventeen individually packaged bags of crack cocaine.

The court ruled that this strip search was reasonable under the totality of the circumstances. The court stated that the strip search was not unreasonable simply because the officer did not articulate specific reasons in the search warrant application as to why a strip search was necessary. [Author’s note: The court noted a case that ruled that such reasons were not necessary, State v. Colin, 809 P.2d 228 (Wash. Ct. App. 1991).] Controlled substances could readily be concealed on a person so that they would not be found without a strip search, and an officer testified at the suppression hearing that there is a trend toward hiding controlled substances in body cavities. The court also noted the approval of a strip search in State v. Smith, 342 N.C. 407 (1995) (officers pulled defendant’s pants down far enough so that they could see the corner of a towel underneath the defendant’s scrotum). The court also ruled that the search was conducted in a reasonable manner. Two male officers searched the defendant in his bedroom, and they did not touch him.

FEDERAL APPELLATE COURTS

Amaechi v. West, 237 F.3d 356 (4th Cir. 2001). An officer arrested a person (the plaintiff in this civil lawsuit against the officer) with an arrest warrant charging a misdemeanor violation of a town ordinance that had occurred two days earlier. The arrestee was naked under her house dress and did not resist the arrest, but the officer still searched her—in public—by swiping his ungloved hand, palm up, across her bare vagina, at which time the tip of his finger slightly penetrated her genitals. The court ruled that this search incident to arrest was unreasonable under the Fourth Amendment. The officer’s search was highly intrusive without any apparent justification. Compare with United States v. Daniels, 323 F. App’x 201 (4th Cir. 2009) (unpublished) (strip search of defendant’s underwear after drug-distribution arrest was authorized when officer had reasonable suspicion drugs were concealed there and search occurred away from public view).

Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997). The defendant was arrested for marijuana possession and was in a police station jail cell about an hour after she was arrested when she was subjected to a strip search and a visual body-cavity search. The court ruled that a strip search and a visual body-cavity search must be justified, at the least, by reasonable suspicion that the arrestee was concealing drugs or weapons. The court found that the defendant stated a claim for violation of her Fourth Amendment right to be free from unreasonable searches sufficiently enough to allow that claim to move forward and survive summary judgment.

Search and Seizure of Evidence from a Person’s Body

(This topic is discussed in the chapter text under “Searching for evidence on or within a person’s body.”)

United States Supreme Court

Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019). The defendant (petitioner) appealed from his impaired-driving conviction and asserted that the State violated the Fourth Amendment by withdrawing his blood without a search warrant while he was unconscious following his arrest for impaired driving. A Wisconsin state statute permits such blood draws. The Wisconsin Supreme Court affirmed the petitioner’s convictions, though no single opinion from that court commanded a majority, and the United States Supreme Court granted certiorari to decide whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

Justice Alito, joined by Chief Justice Roberts, Justice Breyer, and Justice Kavanaugh, announced the judgment of the Court and wrote the plurality opinion, which is the binding holding for lower courts. See Marks v. United States, 430 U.S. 188 (1977) (when a divided Court decides a case and no single rationale has the assent of at least five Justices, the Court’s holding is the position taken by those members who concurred in the judgment on the narrowest ground). Justice Thomas joined the judgment but wrote a separate opinion that supported a broader ground than the plurality opinion.

The plurality opinion noted that the Court’s opinions approving the general concept of implied-consent laws did not rest on the idea that such laws create actual consent to the searches they authorize, but instead they approve defining elements of such statutory schemes after evaluating constitutional claims in light of laws developed over the years to combat impaired driving. The plurality stated that the Court had previously determined that an officer may withdraw blood from an impaired-driving suspect without a warrant if the facts of the particular case establish exigent circumstances. See Missouri v. McNeely, 569 U.S. 141 (2013); Schmerber v. California, 384 U.S. 757 (1966).

While the natural dissipation of alcohol is insufficient by itself to create per se exigency in impaired-driving cases, exigent circumstances may exist when the natural metabolic process is combined with other pressing law enforcement duties (such as the need to address issues resulting from a car accident) such that the further delay necessitated by a search-warrant application risks the destruction of evidence. The plurality reasoned that in impaired-driving cases involving unconscious drivers, the need for a blood test is compelling and the officer’s duty to attend to more-pressing needs involving health or safety (such as the need to transport an unconscious suspect to a hospital for treatment) may leave the officer with no time to obtain a search warrant. Thus, the plurality determined that when an officer has probable cause to believe that a person has committed an impaired-driving offense and the person’s unconsciousness or stupor requires the person to be taken to the hospital before a breath test may be performed, the State may “almost always” order a warrantless blood test to measure the driver’s blood-alcohol-concentration without violating the Fourth Amendment. The plurality did not rule out that in an unusual case, a defendant could show that his or her blood would not have been withdrawn had the State not sought blood-alcohol-concentration information and that a warrant application would not have interfered with other pressing needs or duties. The plurality remanded the case because the petitioner did not have an opportunity to make such a showing.

Justice Thomas concurred in the judgment only, writing separately to advocate for overruling McNeely in favor of a rule that the dissipation of alcohol creates an exigency that excuses the need for a warrant in every impaired-driving case.

[Author’s note: The Fourth Amendment ruling in State v. Romano, 369 N.C. 678 (2017) (taking of blood in DWI investigation from unconscious defendant was not supported by exigent circumstances), decided before Mitchell, does not appear to comport with the Mitchell exigency test. See Shea Riggsbee Denning, Supreme Court Announces New Exigency Test for Blood Draws from Unconscious DWI Suspects, N.C. Crim. L.: A UNC Sch. of Gov’t Blog (July 9, 2019), https://nccriminallaw.sog.unc.edu/supreme-court-announces-new-exigency-test-for-blood-draws-from-unconscious-dwi-suspects/.]

Maryland v. King, 569 U.S. 435 (2013). The Court ruled that the defendant’s Fourth Amendment rights were not violated by the taking of a DNA cheek swab as part of booking procedures. When the defendant was arrested in April 2009 for menacing a group of people with a shotgun and charged in state court with assault, he was processed for detention in custody at a central booking facility. Booking personnel used a cheek swab to take the DNA sample from him pursuant to the Maryland DNA Collection Act (Maryland Act). His DNA record was uploaded into the Maryland DNA database, and it was discovered that his profile matched a DNA sample from a 2003 unsolved rape case. He was later charged and convicted in the rape case. He challenged the conviction by arguing that the Maryland Act violated the Fourth Amendment. The Maryland appellate court agreed. The Supreme Court reversed. The Court found that using a buccal swab on the inner tissues of a person’s cheek to obtain a DNA sample was a search. The Court noted that a determination of the reasonableness of the search requires a weighing of “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” Id. at 448. It found that “[i]n the balance of reasonableness . . . , the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.” Id. at 461. The Court noted in particular the superiority of DNA identification over fingerprint and photographic identification. Addressing privacy issues, the Court found that “the intrusion of a cheek swab to obtain a DNA sample is a minimal one.” Id. It noted that a gentle rub along the inside of the cheek does not break the skin and involves virtually no risk, trauma, or pain. And, distinguishing special-needs searches, the Court noted: “Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial . . . his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen.” Id. at 463. The Court further determined that the processing of the defendant’s DNA was not unconstitutional. The information obtained does not reveal genetic traits or private medical information, and testing is solely for the purpose of identification. Additionally, the Maryland Act protects against further invasions of privacy by, for example, limiting use to identification. The Court concluded:

In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. Id. at 465–66.

Missouri v. McNeely, 569 U.S. 141 (2013). The Court ruled that in impaired-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. After stopping the defendant’s vehicle for speeding and crossing the center line of a highway, an officer noticed several signs that the defendant was intoxicated, and the defendant acknowledged that he had consumed “a couple of beers.” When the defendant performed poorly on field sobriety tests and declined to use a portable breath-test device, the officer placed him under arrest and began driving him to the stationhouse. But when the defendant said that he would again refuse to provide a breath sample, the officer took him to a nearby hospital for blood testing. The officer did not attempt to secure a search warrant for the defendant’s blood draw. Test results showed that the defendant’s blood-alcohol content was above the legal limit. The defendant was charged with impaired driving, and he moved to suppress the blood test. The trial court granted the defendant’s motion, concluding that the exigency exception to the search warrant requirement did not apply because, apart from the fact that as in all intoxication cases, the defendant’s blood alcohol was being metabolized by his liver, there were no circumstances suggesting that the officer faced an emergency in which he could not practicably obtain a search warrant. The state supreme court affirmed, reasoning that Schmerber v. California, 384 U.S. 757 (1966), required lower courts to consider the totality of the circumstances when determining whether exigency permits a nonconsensual, warrantless blood draw. The state court concluded that Schmerber “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” (See State v. McNeely, 358 S.W.3d 65, 74 (2012).) The United States Supreme Court affirmed. The Court noted that under Schmerber and the Court’s case law, applying the exigent-circumstances exception requires consideration of all of the facts and circumstances of the particular case. It then rejected the State’s request for a per se rule for blood testing in impaired-driving cases, declining to “depart from careful case-by-case assessment of exigency.” McNeely, 569 U.S. at 142. It concluded: “[W]hile the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id. at 156.

Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002). The Court ruled that requiring drug testing of high school students involved in competitive extracurricular activities does not violate the Fourth Amendment, even though there is no reasonable suspicion to believe that the students use illegal drugs.

Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). The Court ruled that random urinalysis testing of public-school students participating in interscholastic athletics was reasonable under the Fourth Amendment based on the facts in this case, even though the testing was not based on reasonable suspicion. See also Miller ex. rel Miller v. Wilkes, 172 F.3d 574 (8th Cir. 1999) (policy of random urine testing of students for presence of controlled substances and alcohol, with disqualification from extra activities as sanction for refusing to submit to testing or for testing positive, did not violate Fourth Amendment).

Hayes v. Florida, 470 U.S. 811 (1985). With neither probable cause to arrest nor judicial authorization, officers took the defendant without his consent from his home to a police station and took his fingerprints. The Court ruled that the officers’ action was an illegal seizure under the Fourth Amendment. It noted that the Fourth Amendment may permit a judicial official to authorize a seizure of a person with less than probable cause and to bring the person to a police station for fingerprinting. The Court also noted that the Fourth Amendment may permit an officer to detain briefly a person in the field for fingerprinting when the officer has reasonable suspicion that the person committed a crime and a reasonable belief that fingerprinting will establish or negate the suspect’s connection with the crime.

Winston v. Lee, 470 U.S. 753 (1985). A shopkeeper shot an assailant in the left side during an attempted robbery, and he later identified the defendant at a hospital as the assailant. The State sought a court order to compel surgery on the defendant to remove the bullet from his body for evidence. Based on Schmerber v. California, 384 U.S. 757 (1996), discussed below in this section, the Court ruled that surgery in this case would be unreasonable under the Fourth Amendment. The State did not show a compelling need for evidence that outweighed the proposed surgical intrusion into the defendant’s body under general anesthesia to retrieve the bullet.

Cupp v. Murphy, 412 U.S. 291 (1973). The defendant appeared voluntarily at the police station for questioning about the strangulation murder of his wife. Abrasions and lacerations had been found on the victim’s throat, and there was no sign of a break-in or robbery. Although the defendant was not arrested when he appeared at the station, police had probable cause to arrest him. At the station, officers noticed a dark spot under the defendant’s fingernail. Suspecting that it might be dried blood and knowing that evidence of strangulation is often found under fingernails, officers asked him whether they could scrape under his fingernails. The defendant refused and put his hands in his pocket, but the officers took the scrapings anyway. The defendant then left the station. The Court ruled that the limited warrantless intrusion by scraping under the fingernails was reasonable under the Fourth Amendment because that evidence could readily have been destroyed. Although a full search incident to arrest could not have been conducted because the defendant was not arrested, the scraping of fingernails was a limited permissible search under the facts in this case.

Davis v. Mississippi, 394 U.S. 721 (1969). Officers took the defendant without his consent to police headquarters and took his fingerprints. They had neither probable cause to arrest him nor judicial authorization to take his fingerprints. The Court ruled that detention for fingerprinting was an illegal seizure under the Fourth Amendment and that the fingerprint evidence was inadmissible at trial. It noted that it need not have determined whether the Fourth Amendment would permit—under narrowly circumscribed procedures—fingerprinting of a person for whom an officer does not have probable cause to arrest.

Schmerber v. California, 384 U.S. 757 (1966). The defendant, while receiving treatment at a hospital for injuries suffered in a car accident, was arrested for driving under the influence of intoxicating liquor. An officer directed a doctor, over the defendant’s objection—which was based on the advice of counsel—to take blood for analysis of its alcohol content.

The Court ruled that the taking of blood did not violate the defendant’s Fourth, Fifth, or Sixth Amendment rights. It also ruled that exigent circumstances permitted taking the blood without a search warrant because alcohol in the blood begins to dissipate shortly after the drinking stops. The Court also noted that the taking of blood was performed in a reasonable manner—by a doctor in a hospital according to accepted medical practices. See also State v. Welch, 316 N.C. 578 (1986), State v. Hollings­worth, 77 N.C. App. 36 (1985); United States v. Edmo, 140 F.3d 1289 (9th Cir. 1998) (taking urine sample from impaired-driving defendant to test for marijuana did not violate his Fourth, Fifth, or Sixth Amendment rights based on Schmerber).

North Carolina Supreme Court

State v. Carter, 322 N.C. 709 (1988). An officer’s use of a nontestimonial identification order to obtain a blood sample for blood-typing from an in-custody defendant was found to be unlawful based on prior court rulings—for example, State v. Welch, 316 N.C. 578 (1986), discussed in Chapter 4. The court ruled that the taking of a blood sample without a defendant’s consent violated the North Carolina Constitution because probable cause and a search warrant are required to do so unless exigent circumstances exist, and there were no exigent circumstances in this case (where the blood was needed only for blood-typing). Reasonable suspicion is an insufficient evidentiary standard to take a blood sample from a defendant.

State v. Sharpe, 284 N.C. 157 (1973). The defendant was arrested for murder and was in police custody. A warrantless seizure of the defendant’s arm hairs and head hairs was ruled reasonable under the Fourth Amendment because the means used to obtain the hairs were reasonable. In this case, the defendant pulled out his head hair and gave it to the technician; the record does not reveal how the arm hair was removed. See also State v. Downes, 57 N.C. App. 102 (1982); State v. Reynolds, 298 N.C. 380 (1979); State v. Payne, 328 N.C. 377 (1991).

North Carolina Court of Appeals

State v. Womble, 277 N.C. App. 162 (2021). Relying on Maryland v. King, 569 U.S. 435 (2013), the court ruled that a non-consensual blood sample taken under G.S. 15A-266.4 to create a DNA profile of the defendant-prisoner before his release from prison did not violate the Fourth Amendment.

State v. Scott, 269 N.C. App. 457 (2020), rev’d on other grounds, 377 N.C. 199 (2021). The defendant was charged with second-degree murder after he crashed into another vehicle, killing an occupant. After the crash, the defendant was taken to a hospital for treatment of injuries and released. Officers later obtained a court order for the defendant’s medical records from the hospital and received vials of the defendant’s blood that the hospital had not tested. The State Bureau of Investigation (SBI) Laboratory tested the blood more than a week later, which showed the presence of 0.22 grams of alcohol per 100 milliliters of blood. The defendant was convicted of second-degree murder. The court of appeals ruled that the court order was unlawfully issued because there was no allegation or indication of the defendant’s purported intoxication in the record or in the application for the order. None of the officers and medical personnel on the scene or in the hospital had noticed any signs of impairment when the collision occurred or thereafter. Only the later SBI laboratory testing revealed alcohol intoxication.

State v. Burris, 253 N.C. App. 525 (2017). In this impaired-driving case, the court ruled that the trial court properly denied the defendant’s motion to suppress evidence obtained from blood samples when exigent circumstances supported a warrantless blood draw. The defendant tested at 0.10 on a roadside breath-sample test administered by Detective Hill, was arrested at 2:48 a.m., and then was transported to the police department, where he arrived eighteen minutes later. When the defendant refused to comply with further testing within two to three minutes after arriving at the police department, the detective decided to compel a blood test. The closest hospital was approximately four miles from the police department and eight miles from the magistrate’s office. The detective read the defendant his rights regarding the blood draw at the hospital at 3:24 a.m. and waited for the defendant to finish making a phone call before starting the blood draw at 3:55 a.m. The detective testified that based on the information he had at the time, he thought that the defendant was close to a blood-alcohol level of 0.08. The detective further indicated that he thought it would have taken an additional hour to an hour and a half to get a search warrant. The detective was the only officer on the scene and would have had to wait for another officer to arrive before he could travel to the magistrate to get the search warrant. The trial court’s finding regarding the detective’s reasonable belief that the delay would result in the dissipation of alcohol in the defendant’s blood was supported by competent evidence. Thus, the trial court did not err in denying the defendant’s suppression motion.

State v. Granger, 235 N.C. App. 157 (2014). In this DWI case involving a vehicle accident, the court ruled that under Missouri v. McNeely, 569 U.S. 141 (2013) (the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant), exigent circumstances justified a warrantless blood draw. An officer was concerned about the dissipation of alcohol from the defendant’s blood because it took more than an hour for the officer to establish probable cause to make his request for the defendant’s blood. The delay occurred because the defendant’s injuries and need for medical care prevented the officer from investigating the matter until he arrived at the hospital, where the defendant was taken after his accident. The officer was concerned about the delay in getting a warrant (about forty minutes), including the need to wait for another officer to come to the hospital and stay with the defendant while he left to get the warrant. Additionally, the officer was concerned that if he waited for a warrant, the defendant would receive pain medication for his injuries, contaminating his blood sample.

State v. Dahlquist, 231 N.C. App. 100 (2013). The court in this DWI case ruled that the trial court properly denied the defendant’s motion to suppress evidence obtained from blood samples taken at a hospital without a search warrant when probable cause and exigent circumstances supported the warrantless blood draw. Noting the United States Supreme Court’s ruling in Missouri v. McNeely, 569 U.S. 141 (2013) (natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant), the court found that the totality of the circumstances supported the warrantless blood draw. Specifically, when the defendant pulled up to a checkpoint, an officer noticed the odor of alcohol and the defendant admitted to drinking five beers. After the defendant failed field sobriety tests, he refused to take an Intoxilyzer test. The officer then took the defendant to the hospital to have a blood sample taken without first obtaining a search warrant. The officer did this because it would have taken four to five hours to get the sample if he first had to travel to a magistrate for a warrant. The court noted, however, that the “‘video transmission’ option that has been allowed by [G.S.] 15A-245(a)(3) [for communicating with a magistrate] . . . is a method that should be considered by arresting officers in cases such as this where the technology is available.” Dahlquist, 231 N.C. App. at 105. It also advised: “[W]e believe the better practice in such cases might be for an arresting officer, where practical, to call the hospital and the [magistrate’s office] to obtain information regarding the wait times on that specific night, rather than relying on previous experiences.” Id.

State v. Williams, 209 N.C. App. 255 (2011). Probable cause and exigent circumstances supported an officer’s warrantless search of the defendant’s mouth by grabbing him around the throat, pushing him onto the hood of a vehicle, and demanding that he spit out whatever he was trying to swallow. Probable cause to believe that the defendant possessed illegal drugs and was attempting to destroy them was supported by information from three reliable informants and the following facts: (1) the defendant’s vehicle was covered in talcum powder, which is used to mask the odor of drugs; (2) while the officer was conducting a consent search of the defendant’s person, the defendant attempted to swallow something; and (3) other suspects had attempted to swallow drugs in the officer’s presence. Exigent circumstances existed because the defendant attempted to swallow four packages of cocaine, which could have endangered his health.

State v. Fletcher, 202 N.C. App. 107 (2010). The defendant was arrested at a checkpoint for DWI and taken to a police station for Intoximeter breath testing, which the defendant refused. An officer then transported the defendant to a hospital to compel a blood test. The defendant’s blood was drawn, and the blood test result was 0.10. The court ruled that the officer reasonably believed under G.S. 20-139.1(d1) that the delay necessary to obtain a court order would result in the dissipation of alcohol in the defendant’s blood. The officer testified that the entire process of driving to the magistrate’s office, standing in line, completing the required forms, returning to the hospital, and having the defendant’s blood drawn would have taken from two to three hours. The court also ruled that probable cause and exigent circumstances supported the warrantless compelling of the blood sample and did not violate the Fourth Amendment or various provisions of the North Carolina Constitution.

Jones v. Graham County Board of Education, 197 N.C. App. 279 (2009). The court ruled, distinguishing Boesche v. Raleigh-Durham Airport Authority, 111 N.C. App. 149 (1993), that a local school board’s policy of random, suspicionless drug and alcohol testing of all employees violated Article I, Section 20, of the North Carolina Constitution prohibiting unreasonable searches.

State v. Watson, 119 N.C. App. 395 (1995). Three officers approached a convenience store at night. Officer A had made fifty or more arrests for possession of cocaine in this area. Officer A knew that the defendant had previously been arrested for drug charges. The defendant, on seeing the officers, put items in his mouth and started to go back into the store. Officer A grabbed the defendant’s jacket, and the defendant then attempted to drink a soft drink. The officer took the drink away, ordered the defendant to spit out the objects in his mouth, and applied pressure to the defendant’s throat so that he would spit out the items. The defendant spit out three baggies containing crack cocaine.

Based on this and other evidence—for example, officers testified at the suppression hearing that drug dealers will attempt to conceal or to swallow drugs when they see officers—the court ruled that the officers had reasonable suspicion to stop the defendant; the court cited State v. Butler, 331 N.C. 227 (1992). The court also ruled that exigent circumstances supported the reasonableness of the officer’s actions in applying pressure to the defendant’s throat so that he would not swallow the drugs he had placed in his mouth (the court considered the officers’ training and experience, their familiarity with the area, the defendant, and the practice of drug dealers of hiding drugs in their mouths to elude detection).

Second-Look Doctrine

(This topic is discussed in the chapter text under “Reexamination or Testing of Evidence in State’s Possession; Second-Look Doctrine.”)

NORTH CAROLINA SUPREME COURT

State v. Nelson, 298 N.C. 573 (1979). Defendants, who were military personnel, were arrested and confined to a county jail for state criminal offenses. The military’s inventory of the defendant’s military quarters, conducted pursuant to military regulations requiring inventory of quarters of personnel confined by civilian authorities, was found to be reasonable. Military officers then looked again at the inventoried items when they determined, three days later, that the items might be connected with a crime.

The court ruled that this “second look” at the same items already inventoried—even though it was done for an investigatory purpose—did not violate the Fourth Amendment. See also State v. Warren, 309 N.C. 224 (1983) (chemical tests performed on bloodstains in car while it was impounded at garage—after first search under search warrant had been completed—was justified under Nelson). See generally United States v. Turner, 28 F.3d 981 (9th Cir. 1994) (federal postal inspector could seize without a warrant defendant’s cap that was in state jail’s lawful custody); United States v. Burnette, 698 F.2d 1038 (9th Cir. 1983); United States v. Grill, 484 F.2d 990 (5th Cir. 1973).

Search and Seizure of Obscene Materials

(This topic is discussed in the chapter text under “Search and Seizure of Obscene Materials with Probable Cause.”)

UNITED STATES SUPREME COURT

Maryland v. Macon, 472 U.S. 463 (1985). An undercover detective’s purchase of two allegedly obscene magazines in an adult bookstore open to the public is not a search or seizure under the Fourth Amendment.

Roaden v. Kentucky, 413 U.S. 496 (1973). A sheriff watched a movie at a commercial drive-in and decided that it was obscene (no prior judicial determination of obscenity had been made). After the movie ended, he arrested the theater manager without a warrant and seized without a warrant one copy of the movie incident to the arrest. The Court ruled that the sheriff’s warrantless seizure of the movie was unreasonable under the Fourth Amendment because it was a form of prior restraint of freedom of expression of material allegedly within the protection of the First Amendment. The Court noted that this was not a “now or never” situation in which exigent circumstances may permit a warrantless seizure. It explained that when movies are scheduled for exhibition in a commercial theater open to the public, obtaining a search warrant based on a prior judicial determination of obscenity does not risk a loss of evidence. (See “Search Warrants for Obscene Materials” in the appendix to Chapter 4.)

Objective Standard in Determining Probable Cause or Reasonable Suspicion

(This topic is discussed in the chapter text under “Objective Standard.”)

FEDERAL APPELLATE COURTS

United States v. Swann, 149 F.3d 271 (4th Cir. 1998). An officer stopped and frisked two suspects. The officer felt something hard and unusual in the defendant’s sock. He did not testify that he believed it to be a weapon or that he knew it was not a weapon; rather, he stated only that he did not know what it was. The court ruled that even though the officer did not testify that he believed the item in the defendant’s sock to be a weapon when he removed it, a reasonable officer in these circumstances could have believed that the item was a weapon—specifically, a box cutter with a sharp blade. Thus, the frisk was constitutional.

United States v. Burnett, 791 F.2d 64 (6th Cir. 1986). An officer’s subjective belief that he did not have probable cause to search a car’s trunk after finding drugs in the passenger area of the car was found to be irrelevant in determining the legality of the search. The court upheld the warrantless search of the car’s trunk because the objective facts (marijuana found on the car’s floorboard) supported the officer’s actions, despite his contrary subjective belief. See also State v. Riggs, 328 N.C. 213 (1991) (officer’s belief about what constitutes legal requirements to determine reliability of an informant, when the informant’s information is used to support probable cause to search, is irrelevant).

Search of a Government Employee’s Office or Electronic Devices

UNITED STATES SUPREME COURT

City of Ontario v. Quon, 560 U.S. 746 (2010). A California police department provided pagers to some of its officers to assist the SWAT team in responding to emergencies. Under the department’s contract with a private wireless service provider, each pager was allotted a limited number of characters sent or received each month. Usage in excess of that amount would result in an additional fee. When two officers (Quon, the plaintiff in this case, and another officer) consistently exceeded the character limit, the police chief ordered a supervisor to request transcripts of the two officers’ text messages for two consecutive months. The chief wanted to determine whether the existing character limit was too low or if the overages were for personal messages. The supervisor reviewed the transcripts and discovered that many of the messages sent and received on Quon’s pager were not work related, and some were sexually explicit. After further investigation, Quon was allegedly disciplined. He then sued the city and several officers, alleging that his Fourth Amendment rights were violated.

The Court stated that it would decide this case on narrow grounds and assumed, without deciding, that (1) Quon had a reasonable expectation of privacy in the text messages sent on the city-provided pager, (2) the city officials’ review of the transcripts constituted a search under the Fourth Amendment, and (3) the principles applicable to a government employer’s search of an employee’s physical office also apply when the employer intrudes on the employee’s privacy interest in electronic communications. The Court ruled that under the standards set out by either the plurality opinion or the concurring opinion in O’Connor v. Ortega, 480 U.S. 709 (1987), the search of the text messages did not violate the Fourth Amendment. The search was justified at its inception because there were reasonable grounds for suspecting that the search was necessary for a noninvestigatory work-related purpose (checking whether the character limit was sufficient). Reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use. A reasonable employee would be aware that sound management principles might require the auditing of messages to determine whether the pager was being appropriately used. The search was permissible in scope; that the search revealed intimate details of Quon’s life did not make it unreasonable because, under the circumstances, a reasonable employer would not expect that such a review would intrude on these details.

O’Connor v. Ortega, 480 U.S. 709 (1987). State hospital officials conducted a warrantless search of a state employee’s office and seized items from the employee’s desk and from his file cabinets. Five Justices (one concurring and four dissenting) concluded that the employee had a reasonable expectation of privacy in his office. All nine Justices concluded that the employee had a reasonable expectation of privacy in his desk and file cabinets. The Court ruled that reasonable suspicion was the standard to determine the constitutionality of an employer’s warrantless search for noninvestigatory, work-related purposes or an employer’s investigation of work-related misconduct. See also Ortega v. O’Connor, 146 F.3d 1149 (9th Cir. 1998) (later case upholding jury verdict that search of state employee’s office and seizure of items violated Fourth Amendment).

FEDERAL APPELLATE COURTS

United States v. Simons, 206 F.3d 392 (4th Cir. 2000). (1) A government employer’s remote search and seizure of computer files that defendant-employee downloaded from the Internet did not violate the Fourth Amendment. The employee did not have a reasonable expectation of privacy concerning his Internet use in light of the employer’s policy notifying employees that their use of the Internet was subject to auditing. (2) The employer’s warrantless entry into the employee’s office—where the employee had a reasonable expectation of privacy—to retrieve the employee’s computer hard drive was reasonable under O’Connor v. Ortega, 480 U.S. 709 (1987), discussed immediately above, because the entry and seizure concerned the investigation of work-related misconduct and was supported by reasonable suspicion. The court noted that the employer had an interest in fully investigating the employee’s misconduct, even if the misconduct was criminal—in this case, possessing child pornography. See also United States v. Slanina, 283 F.3d 670 (5th Cir. 2002) (although defendant had reasonable expectation of privacy in his office and office computer equipment, search of computer for work-related misconduct—using computer to access child pornography—was reasonable under Fourth Amendment, even though supervisor was also a law enforcement officer).

United States v. Taketa, 923 F.2d 665 (9th Cir. 1991). The court ruled that a law enforcement officer had a reasonable expectation of privacy in his office, which was not open to the public and was not regularly inspected by his employer, who did not have a key to open it. The fact that three other officers had regular access to the office did not defeat the officer’s privacy right. The court ruled that while a warrantless initial search of the office was justified by an investigation of work-related employee misconduct, later videotaping of the office occurred during a criminal investigation and required probable cause and a search warrant.

Court Order to Obtain Corporate Records

NORTH CAROLINA COURT OF APPEALS

In re Computer Technology Corp., 80 N.C. App. 709 (1986). A superior court judge’s order that directed corporate officials to provide corporate records of transactions with two other corporations and the City of Charlotte was supported by the district attorney’s petition and by a police investigator’s affidavit that met the standards set out in In re Superior Court Order, 315 N.C. 378 (1986). The affidavit supported reasonable grounds to suspect that a violation of criminal law had occurred and that the records sought were likely connected to the investigation of a crime.

Probation or Parole Officer’s Search of Home

UNITED STATES SUPREME COURT

Samson v. California, 547 U.S. 843 (2006). A California law requires every prisoner eligible for release on parole to agree in writing to be subject to a search or seizure by a parole officer or law enforcement officer without a search warrant and with or without cause. The Court ruled that the Fourth Amendment did not prohibit a law enforcement officer from conducting a suspicionless search of a parolee as permitted under this California law. The Court noted that California law prohibits such a search if it is arbitrary, capricious, or harassing. [Author’s note: There is not a North Carolina law similar to California’s law.]

United States v. Knights, 534 U.S. 112 (2001). The defendant was on probation, which included a condition that he submit to a search at any time, with or without a search or arrest warrant or reasonable cause, by any probation officer or law enforcement officer. An officer who was aware of this probation condition and who had reasonable suspicion that evidence of a crime was in the defendant’s apartment searched the apartment without a search warrant. The Court ruled that no more than reasonable suspicion was required to search the defendant’s home, and thus the officer’s warrantless search was reasonable under the Fourth Amendment. [Author’s note: G.S. 15A-1343(b)(13), a regular condition of probation, requires a probationer to submit at reasonable times to warrantless searches by a probation officer of the probationer’s person, vehicle, and premises while the probationer is present, for purposes directly related to the probation supervision. G.S. 15A-1343(b)(14), a regular condition of probation, requires a probationer to submit to warrantless searches by a law enforcement officer of the probationer’s person and vehicle, under reasonable suspicion that the probationer is engaged in criminal activity or is in possession of a firearm, explosive device, or other specified deadly weapon.] See also United States v. Reyes, 283 F.3d 446 (2d Cir. 2002) (no Fourth Amendment violation when probation officer conducted home visit after law enforcement officers provided information to probation officer that probationer was growing marijuana at his home).

Griffin v. Wisconsin, 483 U.S. 868 (1987). A Wisconsin regulation that permitted a probation officer to make a warrantless search of a probationer’s home when “reasonable grounds” existed to search was constitutional. A search warrant was not required. See also United States v. Giannetta, 909 F.2d 571 (1st Cir. 1990) (probation condition permitted probation officer to search defendant’s residence; court upheld probation officer’s warrantless search of residence based on reasonable suspicion of alleged probation violations); United States v. Payne, 181 F.3d 781 (6th Cir. 1999) (reasonable-suspicion standard for parole officer’s search of parolee or his or her property is constitutional, but insufficient evidence of reasonable suspicion in this case); United States v. Davis, 932 F.2d 752 (9th Cir. 1991) (officer properly searched, without a warrant, a safe in probationer’s apartment, which was shared with another person, based on reasonable suspicion that it was owned, possessed, or controlled by the probationer).

NORTH CAROLINA COURT OF APPEALS

State v. Powell, 253 N.C. App. 590 (2017). The court ruled that because the State failed to meet its burden of demonstrating that a warrantless search was authorized by G.S. 15A-1343(b)(13), the trial court erred by denying the defendant’s motion to suppress. The defendant was subject to the regular condition of probation under G.S. 15A-1343(b)(13). This provision requires that the probationer “[s]ubmit at reasonable times to warrantless searches by a probation officer of the probationer’s person and of the probationer’s vehicle and premises while the probationer is present, for purposes directly related to the probation supervision . . . .” Here, the search of the defendant’s home occurred as part of an ongoing operation of a United States Marshal’s Service task force. The court noted that while prior case law makes clear that the presence or participation of law enforcement officers does not, by itself, render a warrantless search under the statute unlawful, the State must meet its burden of satisfying the “purpose” element of the statute. The State failed to meet its burden here. To conclude otherwise would require the court to read the phrase “for purposes directly related to the probation supervision” out of the statute. The court emphasized that its opinion should not be read as diminishing the authority of probation officers to conduct warrantless searches of probationers’ homes or to utilize the assistance of law enforcement officers in conducting such searches. Rather, it held that on the specific facts of this case, the State failed to meet its burden of demonstrating that the search was authorized under the statute.

State v. Robinson, 148 N.C. App. 422 (2002). A law enforcement officer received anonymous information that the defendant was growing marijuana in his house. About fifteen months earlier, a drug task officer had searched the defendant’s residence and found marijuana. The first officer relayed the information to the task force officer, who then spoke with the defendant’s probation officer, who said that the defendant was on probation from the earlier drug offense and that probation included a condition that he consent to warrantless searches of his person and residence. The probation officer went to the defendant’s house, where he attempted to enforce the warrantless search condition. The defendant refused to allow the search, and the probation officer arrested him. Law enforcement officers were informed of the defendant’s arrest and went to the house. No one answered the door, although the officers had learned from the probation officer that the defendant’s girlfriend was there. While other officers were knocking on the door, one of the officers, who was on the driveway, smelled a strong odor of marijuana emanating from the house and saw movement in the house. All of the officers left. They then telephoned the defendant’s girlfriend, who refused to consent to a search of the house. The officers returned to the house, knocked on the door and received no answer, and then broke into the house. They conducted a security sweep and restrained the girlfriend. One officer obtained a search warrant, and they then searched the house, finding marijuana. The court ruled that the law enforcement officers properly interacted with the probation officer, who later sought to enforce the warrantless search condition of the drug defendant’s probation. The court cited State v. Church, 110 N.C. App. 569 (1993), discussed immediately below, and United States v. Knights, 534 U.S. 112 (2001).

State v. Church, 110 N.C. App. 569 (1993). Based on a first-time informant’s information that marijuana was being grown near a white frame house, officers went to investigate. They saw a white frame house and a second house with wood siding, about 150 feet west of the white house. The officers walked to the front porch of the white house, knocked on the door, and received no answer. From the porch, they saw (1) two marijuana plants growing along a fence that went from the white house to a third residence east of the white house and (2) a third marijuana plant growing directly behind the second house. After seeing the plants, the officers walked to the second house to determine who lived in each of the houses. One officer knocked on the front and side doors and then saw the defendant emerge from the garage that was next to the second house. The defendant informed the officers that he owned both houses but lived in the second house. The officers asked the defendant if they could search the houses and garage, but he refused. After arresting the defendant, the officers asked him for a garage door key, which he produced. An officer inserted the key into the lock, found that it fit, and withdrew the key without opening the door.

The officers learned that the defendant was on probation, contacted his probation officer, and were informed that as a condition of probation, the defendant was obligated to submit to warrantless searches by his probation officer. An officer informed the probation officer of the discovery of marijuana and asked her if she would be interested in conducting a warrantless search under the probation condition. She told the officer that she would be willing to do so if she saw marijuana growing outside the defendant’s house and determined that the plants more than likely belonged to him. She went to the house, saw the plants, determined that they probably belonged to the defendant, and authorized a warrantless search of the defendant’s premises. She and nine law enforcement officers conducted the search.

The court ruled that officers’ entry onto the defendant’s property by walking to the front and side doors to look for the resident was permissible based on State v. Prevette, 43 N.C. App. 450 (1979). The court also noted that the inadvertence component of the plain-view doctrine was deleted in Horton v. California, 496 U.S. 128 (1990), and ruled that the plain-view doctrine was satisfied in this case. [Author’s note: The plain-view doctrine must be satisfied only when there is a seizure of property, not when only a search takes place. The officer’s initial observation of the marijuana, before any seizure took place, did not need to satisfy the plain-view doctrine.]

FEDERAL APPELLATE COURTS

United States v. Cardona, 903 F.2d 60 (1st Cir. 1990). A parolee may be arrested in his or her own home by a law enforcement officer who does not possess an arrest warrant (although, in this case, such a warrant had been issued) provided that the officer acts in good faith at the request of parole authorities who, in accordance with parole regulations, have reasonable cause to order the parolee’s arrest as a parole violator. See also United States v. Harper, 928 F.2d 894 (9th Cir. 1991) (warrantless search of parolee’s house to arrest parolee was constitutional when parole board had issued arrest warrant for parole violations).

Wiretapping, Eavesdropping, Digital Evidence, and Video Surveillance

(This topic is discussed in the chapter text under “Wiretapping, Eavesdropping, Access to Stored Electronic Communications, and Related Issues.”)

United States Supreme Court

Riley v. California, 573 U.S. 373 (2014). The Court ruled that the search-incident-to-arrest exception to the search warrant requirement did not apply to a search of a cell phone. The Court stated that searches incident to arrest generally are justified (1) to ensure that the arrestee does not have a weapon and (2) to prevent the arrestee from destroying evidence. Cell phone searches do not implicate those concerns. “[O]fficers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon,” but the data on the phone does not pose a risk of physical harm. Id. at 387. And there is little risk that the data on a phone will be destroyed by the arrestee.

The government had argued that even seized phones could be locked or remotely wiped if not inspected immediately, but the Court found little reason to believe that these practices were prevalent or could be remedied by a search incident to arrest. Further, the risk of such practices can be managed by using Faraday bags (which block the radio waves that cell phones use to communicate) and other tools. Thus, the Court found little justification for allowing phones to be searched incident to arrest.

The Court also found a strong privacy interest militating against such warrantless searches. It noted that phones often contain vast quantities of data, making a search intrusive far beyond the mere fact of arrest itself and far beyond the level of intrusion associated with more traditional searches of pockets, wallets, and purses incident to arrest. Many phones can access data stored on remote servers, making a search extend beyond the immediate area of the arrestee. Emphasizing the need to establish a clear and workable rule, the Court therefore categorically exempted cell phones from the search-incident-to-arrest doctrine.

City of Ontario v. Quon, 560 U.S. 746 (2010). A California police department provided pagers to some of its officers to assist the SWAT team in responding to emergencies. Under the department’s contract with a private wireless service provider, each pager was allotted a limited number of characters sent or received each month. Usage in excess of that amount would result in an additional fee. When two officers (Quon, the plaintiff in this case, and another officer) consistently exceeded the character limit, the police chief ordered a supervisor to request transcripts of the two officers’ text messages for two consecutive months. The chief wanted to determine whether the existing character limit was too low or if the overages were for personal messages. The supervisor reviewed the transcripts and discovered that many of the messages sent and received on Quon’s pager were not work related and some were sexually explicit. After further investigation, Quon was allegedly disciplined. He then sued the city and several officers, alleging that his Fourth Amendment rights were violated.

The Court stated that it would decide this case on narrow grounds and assumed, without deciding, that (1) Quon had a reasonable expectation of privacy in the text messages sent on the city-provided pager, (2) the city officials’ review of the transcripts constituted a search under the Fourth Amendment, and (3) the principles applicable to a government employer’s search of an employee’s physical office also apply when the employer intrudes on the employee’s privacy interest in electronic communications. The Court ruled that under the standards set out by either the plurality opinion or the concurring opinion in O’Connor v. Ortega, 480 U.S. 709 (1987), the search of the text messages did not violate the Fourth Amendment. The search was justified at its inception because there were reasonable grounds for suspecting that the search was necessary for a noninvestigatory work-related purpose (checking whether the character limit was sufficient). Reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use. A reasonable employee would be aware that sound management principles might require the auditing of messages to determine whether the pager was being used appropriately. The search was permissible in scope; that the search revealed intimate details of Quon’s life did not make it unreasonable because, under the circumstances, a reasonable employer would not expect that such a review would intrude on these details.

Bartnicki v. Vopper, 532 U.S. 514 (2001). The Court ruled that the First Amendment barred a civil action against radio broadcasters who intentionally disclosed the contents of an illegally taped cellular telephone conversation involving matters of public concern when the radio broadcasters did not participate in the illegal taping.

North Carolina Court of Appeals

State v. Forte, 257 N.C. App. 505 (2018). The trial court issued an order authorizing law enforcement to access location information for the defendant’s phone. The order was issued pursuant to the Stored Communications Act (SCA, 18 U.S.C. Chapter 121), which requires only reasonable suspicion for issuance of an order for disclosure. The order was based on information provided to an officer by a known drug dealer informant, Oliver. The court found that there were “multiple indications of reliability” of Oliver’s statements, including that he made substantial admissions against his penal interest. Also, Oliver provided a nickname, a general description of the defendant, background information from dealing with him previously, and current travel information regarding the defendant. Oliver spoke with the officer, and the two spoke more than once, adding to the reliability of his tip. These facts met the standard under the SCA. The court ruled that the defendant had not preserved any argument regarding whether the SCA’s standard was unconstitutionally low.

State v. Ladd, 246 N.C. App. 295 (2016). The defendant was convicted of multiple charges of secretly using a photographic device with the intent to capture images of another person. The court ruled that the trial court erred in denying the defendant’s motion to suppress evidence obtained during a warrantless search of the defendant’s external hard drives. While the defendant had consented to a search of his laptops and smart phone, the trial court’s finding of fact (based on the State’s stipulation to the facts set out in defense counsel’s affidavit filed with the suppression motion) unambiguously showed that the defendant did not consent to the search of the external hard drives. And the officers’ warrantless search of these drives, for which the defendant possessed a Fourth Amendment privacy interest under Riley v. California, 573 U.S. 373 (2014), was not justified. The drives did not pose a safety threat to the officers, nor was there any reason to believe that the information on the drives would have been destroyed while the officers obtained a search warrant.

Wright v. Town of Zebulon, 202 N.C. App. 540 (2010). The plaintiff, a police officer, sued his department, the city, and various officers and others for allegedly violating the North Carolina Electronic Surveillance Act (G.S. 15A-286 through -298) by intercepting his oral communications in his vehicle. The police chief and others intercepted these communications to check, based on information from an informant and others, whether the officer was tipping off drug dealers about confidential police department information. The trial court granted summary judgment for the various defendants (the police chief and others), and the plaintiff appealed to the North Carolina Court of Appeals. The court ruled that the defendants did not violate the act because they did not act “willfully” (see G.S. 15A-287(a)(1)) as that term has been interpreted by federal case law involving the federal electronic surveillance law, on which the North Carolina law was modeled. Based on the police chief’s purpose for conducting the interception—as an integrity check to ensure public safety (to determine if officers, informants, and the general public were in danger of harm)—the defendants did not act with a bad purpose or without a justifiable excuse.

State v. Stitt, 201 N.C. App. 233 (2009). The defendant was convicted of the first-degree murder of one victim, the second-degree murder of another victim, and armed robbery. After the killings, the defendant used two cell phones belonging to one of the victims. The cell phones were seized from the defendant when he was arrested in New York. The defendant made a motion to suppress cellular telephone records obtained by the State. The court affirmed the trial court’s ruling that the defendant failed to meet his burden to show that he had a Fourth Amendment privacy interest in the cell phones to have standing to contest the records obtained by the State. [Author’s note: In any event, a person does not have a Fourth Amendment right to privacy in his or her telephone records. Smith v. Maryland, 442 U.S. 735 (1979).] The court also ruled, assuming arguendo that the State did not fully comply with federal law (18 U.S.C. § 2703(d)) in obtaining the telephone records, that federal law does not authorize the suppression of evidence as a remedy for a violation of this federal law. It only provides civil remedies and criminal punishment. The court cited United States v. Ferguson, 508 F. Supp. 2d 7 (D.D.C. 2007), and United States v. Smith, 155 F.3d 1051 (9th Cir. 1998).

Kroh v. Kroh, 152 N.C. App. 347 (2002). The plaintiff-husband sued the defendant-wife for violations of North Carolina’s Electronic Surveillance Act. Without her husband’s knowledge, the wife placed voice-activated tape recorders and a video camera in the family home. The tape recorders picked up conversations between the husband and others when the wife was not a party to the communications. There was no evidence that the video camera recorded conversations.

(1) The court ruled that the wife’s nonconsensual interception of oral communications between the husband and others in the family home violated North Carolina’s Electronic Surveillance Act. See G.S. 15A-287(a)(1). Because the wife was not a party to the intercepted communications, she could not escape liability under G.S. 15A-287(a), which effectively permits the interception if one party to the communication consents to the interception. [Author’s note: This ruling is also consistent with interpretations of similar federal law.] (2) The wife contended that she vicariously consented, on behalf of her minor children, to the interception of any oral communications between her husband and her sons. The court adopted the vicarious-consent doctrine set out in several federal cases. This doctrine permits a custodial parent to vicariously consent to the recording of a minor child’s conversations as long as the parent has a good-faith, objectively reasonable belief that the interception of the conversation is necessary for the child’s best interests (for example, to uncover child abuse). (3) The court ruled that nonconsensual videotaping without aural acquisition of oral communications does not violate North Carolina’s Electronic Surveillance Act. [Author’s note: This ruling is also consistent with interpretations of similar federal law. However, law enforcement officers should remember that there are Fourth Amendment issues involved when officers videotape people in places where they have a reasonable expectation of privacy.]

State v. McGriff, 151 N.C. App. 631 (2002). A person was using her cordless telephone when she inadvertently intercepted a call between two people she recognized. The conversation was about a prior commission of a sex crime that one caller, the defendant, had committed against the other caller, who was a minor. She listened to the conversation and testified about it at trial. The court ruled, relying on Adams v. Sumner, 39 F.3d 933 (9th Cir. 1994) (hotel switchboard operator inadvertently overheard hotel guest refer to guns and remained on line for several minutes; interception not willful because operator remained on line because of concern for other hotel guests after hearing reference to guns), that the interception was not willful and therefore was not unlawful under G.S. 15A-287(a)(1) and 18 U.S.C. § 2511(1)(a). The person continued to listen because of her concern for the minor. Evidence of the conversation was properly admitted at trial. The court also noted, citing In re Askin, 47 F.3d 100 (4th Cir. 1995), and other cases, that the defendant did not have a reasonable expectation of privacy in his cordless telephone conversation.

State v. Shaw, 103 N.C. App. 268 (1991). A mother attached a microcassette tape recorder to a telephone extension line in her house. She tape recorded a telephone conversation between her son, who was using that line, and another young man about their drug activities. Neither the son nor the other man consented to the recording of their conversation. The mother played the tape recording for a detective, who used information from the tape to obtain a search warrant. Relying on Rickenbaker v. Rickenbaker, 290 N.C. 373 (1976) (husband violated federal wiretapping law by tape recording his wife’s telephone conversations without her consent), the court ruled that the mother violated federal wiretapping law in making the tape recording and that federal law barred the use of the contents of the conversation in the affidavit for the search warrant.

Federal Appellate Courts

Guest v. Leis, 255 F.3d 325 (6th Cir. 2001). This civil lawsuit involved seizures of two bulletin-board systems, A and B. Officers, acting with a search warrant in both situations, seized computers, servers, and associated equipment concerning these bulletin-board systems. Evidence showed that obscenity was available on both systems.

(1) Because bulletin-board system A posted a disclaimer that personal communications were not private, users of this system did not have a reasonable expectation of privacy under the Fourth Amendment. (2) Users of bulletin-board system B did not have a reasonable expectation of privacy in materials intended for publication or public posting or in any email message that had already reached its recipient. (3) Because of the technical difficulties of conducting computer searches in suspects’ homes, it was reasonable to allow the officers to take the computers off-site and separate relevant files from unrelated files. (4) Users did not have a reasonable expectation of privacy in their subscriber information because they communicated it to system operators, third parties. The court relied on United States v. Miller, 425 U.S. 435 (1976). (5) The search warrants were sufficiently specific concerning the things to be seized by requiring that the communications and computer records pertain to the criminal offenses listed in the warrant. (6) The officers did not violate the users’ First Amendment rights by seizing and shutting down the bulletin-board systems. (7) The officers did not violate the federal Electronic Communications Privacy Act because they acted with a search warrant as provided under 18 U.S.C.A. §§ 2703(a) and (b). (8) The officers were not civilly liable under the federal Privacy Protection Act (PPA), 42 U.S.C.A. § 2000aa, which protects work-product materials intended for publication that are possessed by innocent third parties. The seizure of PPA-protected materials occurred incidentally to the seizures of criminal evidence under valid search warrants, and the plaintiffs did not show that the protected materials were searched.

Adams v. City of Battle Creek, 250 F.3d 980 (6th Cir. 2001). A police department supplied a pager to an officer for use in his official duties. The department suspected that the officer was assisting drug dealers, so it intercepted messages from the officer’s pager with the use of a clone pager. The court ruled that the department’s use of the clone pager was not authorized by the business or law enforcement exceptions under 18 U.S.C. § 2510(5) and thus its use was illegal. The court noted that the department did not routinely monitor officers’ pagers or give them notice that random monitoring of these department-issued pagers might occur. The court rejected the department’s argument that the officer impliedly consented to the interception of his messages on his pager simply because he accepted and used a department-issued pager.

Kee v. City of Rowlett, 247 F.3d 206 (5th Cir. 2001). The plaintiffs failed to show that they had a subjective expectation of privacy necessary to prove a violation of federal eavesdropping law when law enforcement officers placed an electronic surveillance microphone in a funeral urn during a gravesite service that was accessible to the public and attended by news media and other third parties.

Abraham v. County of Greenville, 237 F.3d 386 (4th Cir. 2001). A county’s recording of judges’ telephone calls from their offices in a county detention center was not within the federal wiretapping statute’s law enforcement exception. Monitoring the judges’ calls was not part of the “ordinary course” of the county’s law enforcement duties, even if the county installed the recording device in the detention center for a legitimate law enforcement purpose.

United States v. Nerber, 222 F.3d 597 (9th Cir. 2000). A drug deal was set up in a hotel room in which informants acting on behalf of law enforcement officers were to sell cocaine to the defendants. With the consent of the informants, officers set up video surveillance to watch the transaction. However, when the informants left the room, the video surveillance of the defendants continued for about three hours. The court ruled that the defendants had a reasonable expectation of privacy once the informants left the room and that the officers violated the Fourth Amendment by failing to obtain a search warrant to conduct the video surveillance. Compare with United States v. Chavez, 328 F.3d 974 (8th Cir. 2003) (defendant was not videotaped while alone (or alone with codefendant) in hotel room but only while meeting with cooperating accomplice, who had consented to taping; no Fourth Amendment violation).

United States v. Jackson, 213 F.3d 1269 (10th Cir. 2000). Officers, without obtaining a search warrant, installed silent video cameras on telephone poles outside the defendant’s residence that viewed activities occurring outside the residence that were visible to people who passed by. The court ruled that the cameras did not violate the Fourth Amendment because the defendant did not have a reasonable expectation of privacy in the areas viewed by the cameras. The use of the silent video cameras also did not violate federal wiretapping or eavesdropping laws. See also United States v. McIver, 186 F.3d 1119 (9th Cir. 1999) (placement of motion-activated still and video cameras near marijuana plants in national forest did not violate Fourth Amendment; defendants did not have reasonable expectation of privacy in their cultivation of marijuana in area open to public); Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174 (1st Cir. 1997) (employees lacked reasonable expectation of privacy to contest disclosed, nonaural video surveillance while working in open and undifferentiated work area).

Arias v. Mutual Central Alarm Service, Inc., 202 F.3d 553 (2d Cir. 2000). An alarm services company, which monitored the burglar and fire alarms of its customers and notified police and fire departments as appropriate, recorded on a twenty-four-hour basis all incoming and outgoing telephone calls involving its employees. The recording practice is routine among central-station alarm companies and is recommended or even mandated by various standard-setting and regulatory bodies in the industry. The court ruled that the recording practice was permissible under the “ordinary course of . . . business” exception in 18 U.S.C. § 2510(5)(a).

Dorris v. Absher, 179 F.3d 420 (6th Cir. 1999). The civil defendant and four plaintiffs worked together at a government office that consisted of one large room, which all employees shared, and an adjoining bathroom that was also used for storage. The defendant placed a tape recorder in the storage room/bathroom and secretly recorded the conversations of the four plaintiff-employees. No one other than the four employees was present during the conversations, and the conversations stopped whenever a car pulled into the building’s driveway or the telephone was being used. The court ruled that the plaintiff-employees had a reasonable expectation of privacy in their conversations to support a cause of action against the defendant under the federal wiretapping law. The court also ruled that the passive act of listening to an illegally intercepted communication—in this case, listening to the tape-recorded communication—is not an illegal “use” of that communication as that term is used in the federal wiretapping law.

Amati v. City of Woodstock, 176 F.3d 952 (7th Cir. 1999). The law enforcement “ordinary course of . . . duties” exception under 18 U.S.C. § 2510(5)(a)(ii) permitted taping of all telephone calls to and from a police department, even if there was no express notice to the people whose conversations were taped.

Culbertson v. Culbertson, 143 F.3d 825 (4th Cir. 1998). Evidence obtained through illegal wiretapping is admissible for impeachment purposes. See also United States v. Baftiri, 263 F.3d 856 (8th Cir. 2001) (similar ruling).

Chandler v. United States Army, 125 F.3d 1296 (9th Cir. 1997). Under 18 U.S.C. §§ 2517(1) and (2), law enforcement officers may not share with other law enforcement officers the contents of wiretapping they know or have reason to know to be illegally obtained.

United States v. Ortiz, 84 F.3d 977 (7th Cir. 1996). Officers seized an electronic pager incident to the defendant’s arrest. They pushed a button on the pager that revealed the numeric messages previously transmitted to the pager. The court ruled, relying on United States v. Meriwether, 917 F.2d 955 (6th Cir. 1990), that the officers’ actions were proper as a search incident to arrest.

Brown v. Waddell, 50 F.3d 285 (4th Cir. 1995). Officers used pager clones to receive and record numeric messages being simultaneously received by a person’s digital-display pager. The court rejected the officers’ argument that their use of pager clones was effectively a pen register and that, therefore, to use the clones they did not need an appropriate court order under Title III of the Omnibus Crime Control and Safe Roads Act of 1968 and the Electronic Communications Privacy Act of 1986 (ECPA). The court ruled that using pager clones without an appropriate court order was an unauthorized interception of an electronic communication under the ECPA.

Adams v. Sumner, 39 F.3d 933 (9th Cir. 1994). The court ruled that a hotel telephone operator did not violate federal wiretapping law by staying on the line after inadvertently hearing an occupant of the hotel refer to guns when the operator was concerned that there might be a danger to people in the hotel.

United States v. Clark, 22 F.3d 799 (8th Cir. 1994). Before an officer left his patrol car to conduct a search, he surreptitiously activated a tape recorder while two suspects sat in the patrol car’s back seat. The suspects’ conversations were recorded, and the officer played the tape and heard incriminating remarks by one of the suspects. The court ruled that the suspects did not have a reasonable expectation of privacy in the back seat of the patrol car and that the recording of their conversations did not violate the Fourth Amendment or federal wiretapping law. See also United States v. McKinnon, 985 F.2d 525 (11th Cir. 1993) (similar ruling); United States v. Turner, 209 F.3d 1198 (10th Cir. 2000).

United States v. Taketa, 923 F.2d 665 (9th Cir. 1991). The court ruled that a law enforcement officer had a reasonable expectation of privacy in his office, which was not open to the public and was not regularly inspected by his employer, who did not have a key to open it. The fact that three other officers had regular access to the office did not defeat the officer’s privacy right. The court ruled that while a warrantless initial search of the office was justified by an investigation of work-related employee misconduct, later videotaping of the office occurred during a criminal investigation and required probable cause and a search warrant.

United States v. Meriwether, 917 F.2d 955 (6th Cir. 1990). Officers who were executing a search warrant for drugs and other evidence seized an electronic digital-display-type pager in the “on” position. The officers monitored the pager as it recorded forty incoming phone numbers. They used one of the telephone numbers to make a drug sale to the defendant.

The court ruled that (1) the pager was among items to be seized as described in the warrant as “telephone numbers of customers, suppliers, couriers” and (2) the defendant did not have a reasonable expectation of privacy in his telephone number, which he had transmitted to the pager. The court also ruled that the officers’ seizure of the defendant’s telephone number (by seeing it displayed on the pager) did not violate federal law that makes illegal the interception of a digital-pager communication. Congress made illegal only the interception of a “transmission.” Once an officer heard the pager emit a signal, the transmission over the system had ceased; the later retrieval of the message was not an interception. The officer lawfully possessed the paging device, and by pressing the digital-display button, the officer became a party to the communication. Therefore, the officer did not intercept it. In addition, the officer did not violate federal law because he did not use an “electronic, mechanical or other device” to intercept; he simply used the pager that he had lawfully acquired. The court also noted that Congress did not provide for the statutory remedy of suppression of evidence for the interception of electronic communications like the interception involved in this case. See also State v. Harris, 145 N.C. App. 570 (2001) (officer who accessed telephone numbers stored in pager’s memory after pager had been seized incident to defendant’s arrest did not violate Fourth Amendment when officer had probable cause to believe that pager contained information that would assist in investigation of drug offenses).

United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987). Officers’ placing a video camera on a utility pole to record all activities in the defendant’s backyard, when his backyard was surrounded by a ten-foot-high fence, was a search under the Fourth Amendment. The court distinguished California v. Ciraolo, 476 U.S. 207 (1986). It also ruled that the search warrant that authorized the installation of the video camera was proper under the Fourth Amendment. See also United States v. Koyomejian, 970 F.2d 536 (9th Cir. 1992) (court described legal requirements to conduct nonaural video surveillance); United States v. Falls, 34 F.3d 674 (8th Cir. 1994) (similar ruling).

United States v. Vest, 813 F.2d 477 (1st Cir. 1987). Statutory exclusionary rule in 18 U.S.C. § 2515 for a violation of Title III of the Omnibus Crime Control and Safe Roads Act of 1968 applies not only when the government obtains evidence from a violation of Title III but also when the government with “clean hands” (meaning the government was not involved in or did not procure the violation) receives evidence obtained by a private person in violation of Title III. See also United States v. Crabtree, 565 F.3d 887 (4th Cir. 2009); In re Grand Jury, 111 F.3d 1066 (3d Cir. 1997); Chandler v. United States Army, 125 F.3d 1296 (9th Cir. 1997); Berry v. Funk, 146 F.3d 1003 (D.C. Cir. 1998). But see United States v. Murdock, 63 F.3d 1391 (6th Cir. 1995) (disagreeing with Vest, court ruled that statutory exclusionary rule in 18 U.S.C. § 2515 for Title III violation does not apply to evidence that the government with “clean hands” receives from private person who obtained evidence in violation of Title III).

Fraser v. Nationwide Mutual Insurance Co., 135 F. Supp. 2d 623 (E.D. Pa. 2001). The court ruled that an employer’s acquisition of an employee’s electronic mail (email) from post-transmission storage did not violate federal wiretapping law or the federal law prohibiting unauthorized access to electronic communications.

United States v. Monroe, 52 M.J. 326 (2000). The defendant, an Air Force sergeant, did not have a reasonable expectation of privacy in his email messages or his email box in an electronic mail host (EMH) residing on a computer owned by the Air Force, at least from personnel charged with maintaining the EMH system, when users received specific notice that by logging onto the system, they consented to monitoring. Thus, it was not a search under the Fourth Amendment when maintenance personnel opened the defendant’s email messages and later opened his email box while investigating a problem with the system.

Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001). After the victim received an email message from the defendant, the victim forwarded it to law enforcement officers. Because the victim had received the email message and could forward it to anyone, the defendant did not have a reasonable expectation of privacy in the message. The court also ruled that a person does not have a reasonable expectation of privacy in chat-room electronic conversations because he or she has no way of verifying to whom he or she is speaking. Thus, the defendant could not challenge the conversations he had in a chat room with a law enforcement officer who was impersonating a young girl. See also United States v. Charbonneau, 979 F. Supp. 1177 (S.D. Ohio 1997) (similar ruling); United States v. Maxwell, 45 M.J. 406 (1996) (similar ruling).

Protective Searches

Scope of Search Incident to Arrest

(This topic is discussed in the chapter text under “Search Incident to Arrest.”)

Generally

United States Supreme Court

Riley v. California, 573 U.S. 373 (2014). The Court ruled that the search-incident-to-arrest exception to the search warrant requirement did not apply to a search of a cell phone. The Court stated that searches incident to arrest generally are justified (1) to ensure that the arrestee does not have a weapon and (2) to prevent the arrestee from destroying evidence. Cell phone searches do not implicate those concerns. “[O]fficers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon,” but the data on the phone does not pose a risk of physical harm. Id. at 387. And there is little risk that the data on a phone will be destroyed by the arrestee.

The government had argued that even seized phones could be locked or remotely wiped if not inspected immediately, but the Court found little reason to believe that these practices were prevalent or could be remedied by a search incident to arrest. Further, the risk of such practices can be managed by using Faraday bags (which block the radio waves that cell phones use to communicate) and other tools. Thus, the Court found little justification for allowing phones to be searched incident to arrest.

The Court also found a strong privacy interest militating against such warrantless searches. It noted that phones often contain vast quantities of data, making a search intrusive far beyond the mere fact of arrest itself and far beyond the level of intrusion associated with more traditional searches of pockets, wallets, and purses incident to arrest. Many phones can access data stored on remote servers, making a search extend beyond the immediate area of the arrestee. Emphasizing the need to establish a clear and workable rule, the Court therefore categorically exempted cell phones from the search-incident-to-arrest doctrine.

Birchfield v. North Dakota, 579 U.S. 438 (2016). The Court held in three consolidated cases that while a warrantless breath test of a motorist lawfully arrested for drunk driving is permissible as a search incident to arrest, a warrantless blood draw is not. It concluded: “Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.” Id. at 441. Having found that the search-incident-to-arrest doctrine does not justify the warrantless taking of a blood sample, the Court turned to the argument that blood tests are justified based on the driver’s legally implied consent to submit to them. In this respect, it concluded, “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id. at 477.

Arizona v. Gant, 556 U.S. 332 (2009). The Court ruled that officers may search a vehicle incident to arrest only if (1) the arrestee is unsecured and within reaching distance of the passenger compartment when the search is conducted or (2) it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle. For a discussion of this ruling, see the chapter text under “Scope of a search incident to the arrest of an occupant of a vehicle.” See also Robert L. Farb, The United States Supreme Court’s Ruling in Arizona v. Gant (UNC School of Government, 2009), www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/arizonagantbyfarb.pdf. In addition, the Fourth Circuit Court of Appeals, whose rulings are binding on federal district courts in North Carolina although not on state courts, ruled in United States v. Davis, 997 F.3d 191 (4th Cir. 2021), that Gant applies to searches conducted outside vehicles under certain circumstances. It ruled unconstitutional a search of a backpack located near an arrestee who was face down on the ground with his hands handcuffed behind his back. There were three officers on the scene but no other suspects or distracting bystanders. For a discussion of this case and its potential impact on North Carolina state courts, see Shea Denning, United States v. Davis: Fourth Circuit Extends Gant to Containers Generally, N.C. Crim. L.: A UNC Sch. of Gov’t Blog (May 27, 2021), nccriminallaw.sog.unc.edu/united-states-v-davis-fourth-circuit-extends-gant-to-containers-generally.

Virginia v. Moore, 553 U.S. 164 (2008). The Court ruled that a search incident to an arrest that was valid under the Fourth Amendment but not valid under state law did not violate the Fourth Amendment. The Court noted that the arrest rules that the officers violated were those of state law alone, and it is not the province of the Fourth Amendment to enforce state law.

Smith v. Ohio, 494 U.S. 541 (1990). Officers illegally searched the defendant’s paper bag without a warrant and found drug paraphernalia. This illegal search then provided probable cause to arrest the defendant. The Court ruled that this search could not be justified as a search incident to arrest.

Maryland v. Buie, 494 U.S. 325 (1990). When officers arrest a person in a home or similar kind of premise, they may as incident to that arrest automatically (that is, without needing probable cause or reasonable suspicion) search closets and other spaces immediately adjoining the place of arrest from which an attack on them from another person could be immediately launched. They also may make a warrantless sweep of the rest of the premises, but only if they have reasonable suspicion that the place to be searched harbors a person who is a danger to the officers.

Rawlings v. Kentucky, 448 U.S. 98 (1980). When probable cause exists to arrest a person, a search of the person incident to the arrest may occur before the actual arrest if the arrest occurs contemporaneously with the search. See also State v. Walden, 52 N.C. App. 125 (1981); State v. Wooten, 34 N.C. App. 85 (1977); State v. Gilliam, 71 N.C. App. 83 (1984); State v. Mills, 104 N.C. App. 724 (1991).

United States v. Edwards, 415 U.S. 800 (1974). The defendant, arrested for breaking into a post office one night, was placed in jail. A later investigation revealed that entry had been made through a wooden window, leaving paint chips on the windowsill. The next morning the defendant’s clothing was taken from him without a warrant and examined. The Court ruled that the warrantless seizure of the defendant’s clothes was constitutional. The officers did no more by taking the clothes the following morning than they could have done incident to the defendant’s arrest or initial incarceration.

Gustafson v. Florida, 414 U.S. 260 (1973). The custodial arrest of a defendant for a traffic offense permitted a full search of his person, including a cigarette box in his coat pocket.

United States v. Robinson, 414 U.S. 218 (1973). An officer who has probable cause to arrest and takes the defendant into custody may make a full search incident to that arrest, even if the arrest is for only a traffic violation. After an officer stopped and subsequently arrested the defendant for a driver’s license violation, he searched him. The search of a crumpled cigarette package located in the left breast pocket of the defendant’s coat (which was found to contain heroin) was ruled constitutionally permissible as incident to the arrest. A custodial arrest provides the automatic authority to search; justification for the search does not depend on an officer’s fear for his or her safety or need to search for evidence of a crime.

Chimel v. California, 395 U.S. 752 (1969). The defendant was arrested in his home. A search of the entire home incident to his arrest was ruled unconstitutional. A search incident to an arrest is limited to the person of the arrestee and the area within the arrestee’s immediate control.

Preston v. United States, 376 U.S. 364 (1964). Three men were arrested in their car for vagrancy. The car was taken to the police station, where it was searched without a warrant. The Court ruled that when a car search is based on the search-incident-to-arrest justification and the arrestee is in custody, a warrantless search of the car at another place is not justified as incident to that arrest. [Author’s note: In this case probable cause to search did not exist, and therefore the later ruling in Chambers v. Maroney, 399 U.S. 42 (1970), would not apply to these facts.] See also Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968).

North Carolina Supreme Court

State v. Steen, 352 N.C. 227 (2000). (1) The defendant was arrested for possession of drug paraphernalia and stolen credit cards and taken to jail on February 29, 1996. His clothing was taken from him, and he was issued a standard jail jumpsuit. Under jail rules, his clothing would be returned to him when he was released from jail. On March 6, 1996, an officer who was investigating the defendant for a murder went to the jail and, without a search warrant, obtained the defendant’s clothes to analyze them for blood and glass particles. Relying on United States v. Edwards, 415 U.S. 800 (1974), the court ruled that the warrantless search and seizure of the defendant’s clothes did not violate the Fourth Amendment. The defendant was in custody under a valid arrest, and his clothing had already been administratively taken from his possession. (2) The defendant was released from custody on March 14, 1996. He was arrested on March 16, 1996, for murder, and an officer took hair and saliva samples incident to that arrest. Relying on State v. Thomas, 329 N.C. 423 (1991), the court ruled that neither a court order nor a search warrant was necessary to take the hair and saliva samples.

State v. Brooks, 337 N.C. 132 (1994). The court upheld a search of a nylon pouch as a proper search incident to the arrest of the defendant for carrying a concealed weapon. The agent had probable cause to arrest the defendant. When probable cause exists to arrest a person, a search of the person may be made before the actual arrest and still be justified as a search incident to arrest when, as here, an officer makes the search contemporaneously with the arrest; see Rawlings v. Kentucky, 448 U.S. 98 (1980).

State v. Thomas, 329 N.C. 423 (1991). The day after the defendant’s arrest for murder, law enforcement officers obtained (by using the services of a medical examiner) the following evidence from the defendant without a warrant: samples of the defendant’s blood; head and pubic hair; saliva; fingernails; and molds of his teeth, lips, and fingernails. [Author’s note: The officers had obtained a nontestimonial identification order to obtain this evidence, but it was invalid under State v. Welch, 316 N.C. 578 (1986), because the defendant was in custody.] The defendant moved to suppress all this evidence by arguing that the federal and state constitutions required that officers obtain a search warrant based on probable cause before taking blood and other personal identification samples from a defendant already in custody, and the officers here had not obtained a warrant. The court ruled that the defendant’s blood was taken improperly based on State v. Carter, 322 N.C. 709 (1988), but that the defendant’s fingerprints; pubic hair; and molds of his teeth, saliva, and lips were admissible evidence because that evidence was properly obtained while the defendant was in police custody.

State v. Payne, 328 N.C. 377 (1991). Relying on United States v. Edwards, 415 U.S. 800 (1974), the court upheld the warrantless seizure of the arrested defendant’s clothing that occurred five hours after his arrest and while he remained in lawful custody.

State v. Cherry, 298 N.C. 86 (1979). Officers arrested the defendant at his motel room door, handcuffed him, and sat him in a chair in the room. The officers had been informed earlier that the defendant had a gun. One officer saw a lump in the rug and seized a weapon there. The court ruled that the search was proper as incident to the defendant’s arrest and under the plain-view justification. The area where the gun was found was within the defendant’s immediate control under the search-incident-to-arrest justification, and the fact that the defendant was handcuffed did not affect the lawfulness of the seizure incident to arrest.

State v. Hopkins, 296 N.C. 673 (1979). A female defendant was arrested in Tennessee and placed in jail but only visually searched. A North Carolina officer, who believed that the defendant might have a gun, requested that she be searched more thoroughly. During a full search conducted six or seven hours after the arrest, a gun was found in the defendant’s blouse. The court ruled that the full search was not too remote in time and therefore could be justified as incident to the defendant’s arrest.

State v. Cobb, 295 N.C. 1 (1978). The defendant was arrested for rape. The court found that it was proper, as a search incident to the arrest, for officers to take from the defendant his clothing and a sample of his pubic hair. See also State v. Norman, 100 N.C. App. 660 (1990) (defendant arrested for sex offenses was properly strip searched and his pubic area combed).

State v. Richards, 294 N.C. 474 (1978). An officer who accompanied the defendant to her bedroom after her arrest had the right to seize a weapon he saw in a top dresser drawer as a search incident to her arrest. Justification for the seizure does not depend on showing with “mathematical precision that the defendant could have reached the weapon moments before the seizure.” Id. at 486. The area where the dresser was located was one within which the defendant might have gained possession of the weapon. See also State v. Parker, 315 N.C. 222 (1985).

State v. Jackson, 280 N.C. 122 (1971). An officer had information that the defendant, arrested for a drug offense, might have drugs concealed in her bra. Neither the removal of the defendant to jail nor a thirty- to fortyfive-minute wait for a matron to arrive to search her made the search too remote in time or place to be invalid as a search incident to a lawful arrest.

State v. Shedd, 274 N.C. 95 (1968). The defendant’s clothes were properly seized incident to his arrest. See also State v. Lucas, 302 N.C. 342 (1981).

North Carolina Court of Appeals

State v. Fuller, 257 N.C. App. 181 (2017). The court ruled that a search of the defendant’s person was a proper search incident to arrest. An officer stopped the defendant’s vehicle for driving with a revoked license and arrested the defendant. The officer then conducted a consent search of the vehicle that failed to locate any contraband, but a K-9 dog subsequently arrived on the scene and “hit” on the driver’s seat cushion. When a second search uncovered no contraband or narcotics, the officer concluded that the narcotics must be on the defendant’s person. The defendant was brought to the police department and was searched. The search involved lowering the defendant’s pants and long johns to his knees. During the search, the officer pulled out, but did not pull down, the defendant’s underwear and observed the defendant’s genitals and buttocks. Cocaine eventually was retrieved from a hidden area on the fly of the defendant’s pants. The appellate court rejected the defendant’s argument that the strip search could only have been conducted with probable cause and exigent circumstances, noting that the probable cause/exigent circumstances standard applies only to roadside strip searches. Here, the search was conducted incident to the defendant’s lawful arrest and inside a private interview room at a police facility. Furthermore, the scope of the search was reasonable. It was limited to the area of the defendant’s body and clothing that would have come in contact with the cushion of the driver’s seat where the dog alerted, and the defendant was searched inside a private interview room at the police station with only the defendant and two officers present. The officers did not remove the defendant’s clothing above the waist. They did not fully remove his undergarments, nor did they touch his genitals or any body cavity. The court thus concluded that the place, manner, justification, and scope of the search of the defendant’s person were reasonable.

State v. Clyburn, 240 N.C. App. 428 (2015). The court of appeals reversed and remanded for further findings of fact a trial court decision concerning the defendant’s motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on the defendant’s person that, as a result of the search, was determined to have been stolen. The court ruled that under Riley v. California, 573 U.S. 373 (2014), the search was not justified as a search incident to arrest. As to whether the defendant had a reasonable expectation of privacy in the GPS device, the court ruled that a defendant may have a legitimate expectation of privacy in a stolen item if he or she acquired it innocently and did not know that the item was stolen. Here, the defendant offered evidence at the suppression hearing that, were it to be found believable, would allow the trial court to conclude that he had a legitimate possessory interest in the GPS device. However, because the trial court failed to make a factual determination concerning whether the defendant innocently purchased the GPS device, the court reversed and remanded for further findings of fact, providing additional guidance for the trial court in its decision.

State v. Taylor, 117 N.C. App. 644 (1995). Officer A knew that the defendant had been previously arrested for drugs and had a reputation in the community as a drug dealer. Officer A and other officers saw the defendant with others in an area known for drug trafficking. As the officers approached the area in their marked car, the defendant left. The officers saw him at a nearby intersection. The defendant stopped as the police car approached him. As Officer A got out of the car, the defendant walked toward him and dropped something on the ground. The officer approached the defendant and brought him over to the police car. The officer determined that the dropped item was marijuana and arrested the defendant. He then noticed that the defendant was talking “funny” and ordered him to spit out whatever was in his mouth. The defendant spit out individually wrapped pieces of crack cocaine. The court ruled that (1) the defendant was not seized until after he dropped the item to the ground because he had not yielded to a show of authority before then; see California v. Hodari D., 499 U.S. 621 (1991); (2) after the defendant dropped the item, Officer A had reasonable suspicion to detain the defendant, considering everything the officer knew; (3) Officer A had probable cause to arrest the defendant when he determined that the item was marijuana; and (4) even if the defendant did not voluntarily spit out the cocaine, it was admissible as a search incident to arrest.

State v. Thomas, 81 N.C. App. 200 (1986). The court ruled that a large, locked suitcase that the defendant was carrying when he was arrested could not be searched without a warrant incident to the defendant’s arrest. The court noted that the suitcase was not immediately associated with the defendant’s person, the defendant was in custody and could not have reached its contents, and the suitcase had been effectively reduced to the officers’ exclusive control.

State v. Mack, 57 N.C. App. 163 (1982). An arrestee’s pants pocket may be searched incident to his or her arrest.

State v. Booker, 44 N.C. App. 492 (1980). A purse attached to an arrestee’s belt may be searched incident to the arrest.

State v. Nesmith, 40 N.C. App. 748 (1979). A search and inspection of the contents of an arrestee’s wallet was ruled valid as a search incident to the arrest. A search of the wallet was also valid as an inventory of personal possessions before the defendant was placed in jail. See also State v. Willis, 61 N.C. App. 23, modified and aff’d, 309 N.C. 451 (1983) (wallet).

State v. Ervin, 38 N.C. App. 261 (1978). An arrestee’s socks may be searched incident to his or her arrest.

Federal Appellate Courts

United States v. Davis, 997 F.3d 191 (4th Cir. 2021). The Fourth Circuit Court of Appeals, whose rulings are binding on federal district courts in North Carolina but not on state courts, ruled that Arizona v. Gant, 556 U.S. 332 (2009), applies to searches conducted outside vehicles under certain circumstances. The Fourth Circuit ruled unconstitutional a search of a backpack located near an arrestee who was face down on the ground with his hands handcuffed behind his back. There were three officers on the scene but no other suspects or distracting bystanders. For a discussion of this case and its potential impact on North Carolina state courts, see Shea Denning, United States v. Davis: Fourth Circuit Extends Gant to Containers Generally, N.C. Crim. L.: A UNC Sch. of Gov’t Blog (May 27, 2021), sog.unc.edu/united-states-v-davis-fourth-circuit-extends-gant-to-containers-generally.

Arrest of an Occupant of a Vehicle

(This topic is discussed in the chapter text under “Scope of a search incident to the arrest of an occupant of a vehicle.”)

UNITED STATES SUPREME COURT

Arizona v. Gant, 556 U.S. 332 (2009). The Court ruled that officers may search a vehicle incident to arrest only if (1) the arrestee is unsecured and within reaching distance of the passenger compartment when the search is conducted or (2) it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle. The search of the vehicle incident to the arrest of the defendant here was not justified because the defendant was handcuffed in the back seat of a patrol car when the search was conducted and it was not reasonable to believe that evidence relevant to the crime of arrest (driving with a suspended license) might be found in the vehicle. For a discussion of this ruling, see “Scope of a search incident to the arrest of an occupant of a vehicle” in the chapter text. See also Robert L. Farb, The United States Supreme Court’s Ruling in Arizona v. Gant (UNC School of Government, 2009), www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/arizonagantbyfarb.pdf. In addition, the Fourth Circuit Court of Appeals, whose rulings are binding on federal district courts in North Carolina but not on state courts, ruled in United States v. Davis, 997 F.3d 191 (4th Cir. 2021), that Gant applies to searches conducted outside vehicles under certain circumstances. The Fourth Circuit ruled unconstitutional a search of a backpack located near an arrestee who was face down on the ground with his hands handcuffed behind his back. There were three officers on the scene but no other suspects or distracting bystanders. For a discussion of this case and its potential impact on North Carolina state courts, see Shea Denning, United States v. Davis: Fourth Circuit Extends Gant to Containers Generally, N.C. Crim. L.: A UNC Sch. of Gov’t Blog (May 27, 2021), nccriminallaw.sog.unc.edu/united-states-v-davis-fourth-circuit-extends-gant-to-containers-generally/.

Knowles v. Iowa, 525 U.S. 113 (1998). An officer stopped a vehicle for speeding and issued a citation to the driver, even though the officer could have arrested him under Iowa state law. The officer—without consent or probable cause to search—then conducted a full search of the vehicle. The Court ruled that the officer’s search violated the Fourth Amendment, rejecting the theory of a search incident to the issuance of a citation.

NORTH CAROLINA SUPREME COURT

State v. Mbacke, 365 N.C. 403 (2012). The state supreme court reversed the court of appeals and determined that a search of the defendant’s vehicle incident to his arrest for carrying a concealed gun did not violate the Fourth Amendment. The defendant was indicted for, among other things, trafficking in cocaine and carrying a concealed gun. Officers were dispatched to a specific street address in response to a 911 caller’s report that a black male armed with a black handgun, wearing a yellow shirt, and driving a red Ford Escape was parked in the caller’s driveway and had “shot up” the caller’s house the previous night. Officers Walley and Horsley arrived at the scene less than six minutes after the 911 call. They observed a black male (later identified as the defendant) wearing a yellow shirt and backing a red or maroon Ford Escape out of the driveway. The officers exited their vehicles, drew their weapons, and moved toward the defendant while ordering him to stop and put his hands in the air. Officer Woods then arrived and blocked the driveway to prevent escape. The defendant initially rested his hands on his steering wheel but then lowered them toward his waist. Officers then began shouting at the defendant to keep his hands in sight and to exit his vehicle. The defendant raised his hands and stepped out of his car, kicking or bumping the driver’s door shut as he did so. Officers ordered the defendant to lie on the ground and then handcuffed him, advising him that he was being detained because they had received a report that a person matching his description was carrying a weapon. After the defendant said that he had a gun in his waistband and officers found the gun, the defendant was arrested for carrying a concealed gun. The officers secured the defendant in the back of a patrol car, returned to the defendant’s vehicle, and opened the driver’s-side door. Officer Horsley immediately saw a white brick wrapped in green plastic protruding from beneath the driver’s seat. As Officer Horsley was showing this to Officer Walley, the defendant attempted to escape from the patrol car. After re-securing the defendant, the officers searched his vehicle incident to the arrest but found no other contraband. The white brick turned out to be 993.8 grams of cocaine. The court noted that the case required it to apply Arizona v. Gant, 556 U.S. 332 (2009) (officers may search a vehicle incident to arrest only if (1) the arrestee is unsecured and within reaching distance of the passenger compartment when the search is conducted or (2) it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle). It began its analysis by concluding that, as used in the second prong of the Gant test, the term “reasonable to believe” establishes a threshold lower than probable cause that “parallels the objective ‘reasonable suspicion’ standard sufficient to justify a Terry stop.” Mbacke, 365 N.C. at 409. Thus, it held that “when investigators have a reasonable and articulable basis to believe that evidence of the offense of arrest might be found in a suspect’s vehicle after the occupants have been removed and secured, the investigators are permitted to conduct a search of that vehicle.” Id. at 409–10. Applying that standard, the court concluded:

[D]efendant was arrested for . . . carrying a concealed gun. The arrest was based upon defendant’s disclosure that the weapon was under his shirt. Other circumstances . . ., such as the report of defendant’s actions the night before and defendant’s furtive behavior when confronted by officers, support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant’s vehicle. Accordingly, the search was permissible under Gant . . . . Id. at 410.

The court concluded by noting that it “[was] not holding that an arrest for carrying a concealed weapon is ipso facto an occasion that justifies the search of a vehicle.” It expressed the belief that “the ‘reasonable to believe’ standard required by Gant will not routinely be based on the nature or type of the offense of arrest and that the circumstances of each case ordinarily will determine the propriety of any vehicular searches conducted incident to an arrest.” Id. at 411.

NORTH CAROLINA COURT OF APPEALS

State v. Fuller, 257 N.C. App. 181 (2017). The court ruled that a search of the defendant’s person was a proper search incident to arrest. An officer stopped the defendant’s vehicle for driving with a revoked license and arrested the defendant. The officer then conducted a consent search of the vehicle that failed to locate any contraband, but a K-9 dog subsequently arrived on the scene and “hit” on the driver’s seat cushion. When a second search uncovered no contraband or narcotics, the officer concluded that the narcotics must be on the defendant’s person. The defendant was brought to the police department and was searched. The search involved lowering the defendant’s pants and long johns to his knees. During the search, the officer pulled out, but did not pull down, the defendant’s underwear and observed the defendant’s genitals and buttocks. Cocaine eventually was retrieved from a hidden area on the fly of the defendant’s pants. The appellate court rejected the defendant’s argument that the strip search could only have been conducted with probable cause and exigent circumstances, noting that the probable cause/exigent circumstances standard applies only to roadside strip searches. Here, the search was conducted incident to the defendant’s lawful arrest and inside a private interview room at a police facility. Furthermore, the scope of the search was reasonable. It was limited to the area of the defendant’s body and clothing that would have come in contact with the cushion of the driver’s seat where the dog alerted, and the defendant was searched inside a private interview room at the police station with only the defendant and two officers present. The officers did not remove the defendant’s clothing above the waist. They did not fully remove his undergarments, nor did they touch his genitals or any body cavity. The court thus concluded that the place, manner, justification, and scope of the search of the defendant’s person were reasonable.

State v. Martinez, 251 N.C. App. 284 (2016). The court ruled that after the defendant’s arrest for impaired driving, officers properly searched his vehicle as a search incident to arrest. Applying Arizona v. Gant, 556 U.S. 332 (2009), the court found that the officer who stopped the defendant’s vehicle had a reasonable basis to believe that evidence of impaired driving might be found in the vehicle. The defendant denied ownership, possession, and operation of the vehicle to the officer both verbally and by throwing the car keys under the vehicle. Based on the totality of the circumstances, including the strong odor of alcohol on the defendant, the defendant’s efforts to hide the keys and refusal to unlock the vehicle, and the officer’s training and experience concerning impaired-driving investigations, the trial court properly concluded that the officer reasonably believed that the vehicle may contain evidence of the offense. The court noted that the officer had testified that he had conducted between twenty and thirty impaired-driving investigations; at least 50 percent of those cases involved the discovery of evidence associated with impaired driving inside the vehicle, such as open containers of alcohol; and he had been trained to search a vehicle under these circumstances.

State v. Fizovic, 240 N.C. App. 448 (2015). The court ruled that a search of the defendant’s vehicle was properly conducted incident to the defendant’s arrest for an open-container offense when the officer had probable cause to arrest before the search even though the formal arrest did not occur until after the search was completed. The court noted that under Arizona v. Gant, 556 U.S. 332 (2009), “[a]n officer may conduct a warrantless search of a suspect’s vehicle incident to his arrest if he has a reasonable belief that evidence related to the offense of arrest may be found inside the vehicle.” Id. at 450. The trial court’s unchallenged findings of fact that it is common to find alcohol in vehicles of individuals stopped for alcohol violations and that the center console in the defendant’s car was large enough to hold beer cans supported the conclusion that the arresting officer had a reasonable belief that evidence related to the open-container violation might be found in the defendant’s vehicle. The court rejected the defendant’s argument that the search was an unconstitutional “search incident to citation,” noting that the defendant was arrested, not issued a citation.

State v. Watkins, 220 N.C. App. 384 (2012). The court ruled that the search of a vehicle driven by the defendant was valid under Arizona v. Gant, 556 U.S. 332 (2009), as incident to the arrest of the defendant’s passenger for possession of drug paraphernalia. Officers had a reasonable belief that evidence relevant to the passenger’s possession of drug paraphernalia might be found in the vehicle. Additionally, objective circumstances provided the officers with probable cause for a warrantless search of the vehicle, including the fact that drug paraphernalia was found on the passenger, there was an anonymous tip that the vehicle would be transporting drugs, there were outstanding arrest warrants for the car’s owner, the defendant behaved nervously while driving and upon exiting the vehicle, and there was an alert by a drug-sniffing dog.

State v. Foy, 208 N.C. App. 562 (2010). The trial court erred by suppressing evidence obtained pursuant to a search incident to arrest. After stopping the defendant’s vehicle, an officer decided not to charge him with impaired driving but to allow the defendant to have someone pick him up. The defendant consented to the officer’s retrieving a cell phone from the vehicle. While doing that, the officer saw a weapon and charged the defendant with carrying a concealed weapon. Following the arrest, the stopping officer and other officers searched the defendant’s vehicle and found additional contraband, which was suppressed by the trial court. The court noted that under Arizona v. Gant, 556 U.S. 332 (2009), officers may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of the vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. Citing State v. Toledo, 204 N.C. App. 170 (2010), the court held that after having arrested the defendant for carrying a concealed weapon, it was reasonable for the officer to believe that the vehicle contained additional offense-related contraband within the meaning of the second Gant exception.

State v. Johnson, 204 N.C. App. 259 (2010). Officers saw a blue Mitsubishi with a license plate of WT 3453 being driven by a black male wearing a white T-shirt. An officer entered the license-plate information into his computer, which revealed that the vehicle was registered to Kelvin Johnson, a black male with a date of birth of August 5, 1964. It also showed that Johnson’s driver’s license was suspended. Officers stopped the vehicle, arrested the defendant for driving while license revoked, placed him in the back of a patrol car, and searched the defendant’s vehicle incident to his arrest. The court ruled that the ruling in Arizona v. Gant, 556 U.S. 332 (2009), applied to the defendant’s case because it was on direct appeal and not yet final. The court also ruled that the search incident to arrest of the defendant’s vehicle violated the Fourth Amendment because it did not satisfy the Gant ruling. The defendant was secured in a patrol car, and it was not reasonable to believe that evidence of the offense of driving while license revoked might be found in his vehicle.

State v. Carter, 200 N.C. App. 47 (2009). An officer noticed that a vehicle’s temporary tag was old or worn and had an obscured expiration date. He stopped the vehicle, which was being driven by the defendant. The officer saw several whole pieces of paper lying on the passenger seat and noticed that the defendant seemed unusually nervous. The officer investigated the vehicle’s registration and then arrested the defendant for an expired registration tag and failure to notify the Division of Motor Vehicles of a change of address. The defendant was removed from the vehicle, handcuffed, and directed to sit on a curb while the vehicle was searched. The officer noticed that the whole pieces of paper had been ripped into smaller pieces. He placed the pieces together and discovered incriminating evidence.

The court ruled that the officer’s search of the vehicle incident to the defendant’s arrest violated the Fourth Amendment under the ruling in Arizona v. Gant, 556 U.S. 332 (2009). First, the defendant was not within reaching distance or otherwise able to access the passenger compartment when the search began. He had been arrested, handcuffed, and was sitting on the curb. Second, there was no evidence that the papers were related to the offenses for which the defendant had been arrested.

FEDERAL APPELLATE COURTS

United States v. Slone, 636 F.3d 845 (7th Cir. 2011). The defendant was arrested for a drug offense because he was driving his truck in tandem with another vehicle that was transporting a large amount of marijuana (there were other incriminating facts as well). The court ruled, relying on Arizona v. Gant, 556 U.S. 332 (2009), that the officers could search the defendant’s truck incident to arrest because it was reasonable to believe that evidence related to the offense would be found in the truck’s passenger compartment. Officers could have reasonably expected to find money, cell phones, maps, drawings, or other evidence linking the occupants of the truck to the offense.

Protective Sweep of Premises

(This topic is discussed in the chapter text under “Protective sweep when officer is in a home to make an arrest.”)

UNITED STATES SUPREME COURT

Maryland v. Buie, 494 U.S. 325 (1990). When officers arrest a person in a home or similar kind of premise, they may as incident to that arrest automatically (that is, without needing probable cause or reasonable suspicion) search closets and other spaces immediately adjoining the place of arrest from which an attack on them from another person could be immediately launched. They also may make a warrantless sweep of the rest of the premises, but only if they have reasonable suspicion that the place to be searched harbors a person who is a danger to the officers there. See also United States v. Delgado, 903 F.2d 1495 (11th Cir. 1990) (protective sweep of warehouse for additional suspects was proper); United States v. Oguns, 921 F.2d 442 (2d Cir. 1990) (based on facts of case, arrest of defendant outside apartment with open door permitted security sweep of apartment); United States v. Tisdale, 921 F.2d 1095 (10th Cir. 1990) (similar ruling). But see United States v. Akrawi, 920 F.2d 418 (6th Cir. 1990) (protective sweep of second floor of house after arresting defendant at front door was not justified by reasonable suspicion; court also noted that officers inexplicably remained in house for forty-five minutes).

NORTH CAROLINA SUPREME COURT

State v. Taylor, 298 N.C. 405 (1979). Even though the defendant had been arrested outside a house, officers had reason to fear for their safety from the possible use of a firearm by someone inside the house. Therefore, exigent circumstances permitted a warrantless search of the house to find the weapon.

NORTH CAROLINA COURT OF APPEALS

State v. Smith, 371 N.C. 469 (2018). The court, per curiam and without an opinion, reversed the court of appeals, 255 N.C. App. 138 (2017), for the reasons stated in the dissenting opinion.

Three officers entered the defendant’s apartment to execute misdemeanor arrest warrants (the officers knew that the defendant was on probation for an offense, although they did not know then if it was a felony or misdemeanor). While two of the officers made the in-home arrest, the third conducted a protective sweep of the defendant’s apartment. A shotgun was leaning against the wall in the entry of the defendant’s bedroom. The bedroom door was open, and the shotgun was visible in plain view from the hallway. The officer walked past the shotgun when checking the defendant’s bedroom to confirm that no other occupants were present. After completing the sweep, the officer secured the shotgun in order to have it in police control and also to check to see if it was stolen. The officer located the serial number on the shotgun and called it into the police department, which reported that the gun was stolen. The officer then seized the weapon.

The defendant moved to suppress the shotgun, arguing that (1) the officer lacked authority to conduct a protective sweep and (2) the seizure could not be justified under the plain-view doctrine. The trial court denied the defendant’s motion to suppress. After determining that the protective sweep was proper (all three judges agreed on this issue) because the rooms in the apartment all adjoined the place of arrest and were locations from which an attack could be immediately launched (see Maryland v. Buie, 494 U.S. 325 (1990)), the court of appeals considered the seizure of the shotgun. Over a dissent, the court then held that the plain-view doctrine could not justify the seizure of the shotgun. The dissenting opinion, which was adopted by the state supreme court, disagreed. It stated that the officers knew that the defendant had been placed on probation. A regular condition of probation is a ban on possessing firearms. Thus, the defendant’s firearm was contraband that was unlawful to possess. Thus, it was immediately apparent that the shotgun was contraband, and the plain-view doctrine justified its warrantless seizure.

State v. Dial, 228 N.C. App. 83 (2013). The court of appeals ruled that the trial court did not err by denying the defendant’s motion to suppress evidence discovered as a result of a protective sweep of his residence when officers had a reasonable belief based on specific and articulable facts that the residence harbored an individual who posed a danger to the officers’ safety. Officers were at the defendant’s residence to serve an order for arrest. Although the defendant on prior encounters had answered his door promptly, this time he did not respond for ten to fifteen minutes after an officer knocked and announced his presence. The officer heard shuffling on the other side of the front door. When two other officers arrived, the first officer briefed them on the situation, showed them the order for arrest, and explained his belief, based on past experience, that weapons were normally inside. When the officers again approached the residence, “the front door flew open” and the defendant exited. The officers then issued verbal commands to the defendant, but he walked down the front steps with his hands raised, failing to comply with the officers’ instructions. As soon as the first officer reached the defendant, the other officers entered the home and performed a protective sweep, lasting about thirty seconds. Evidence supporting the protective sweep included the fact that the officers viewed the open door to the residence as a “fatal funnel” that could provide someone inside with a clear shot at the officers, the defendant’s unusually long response time and resistance, the known potential threat of weapons inside the residence, shuffling noises that could have indicated the presence of more than one person inside the residence, the defendant’s alarming exit from the residence, and the defendant’s own actions that led to his arrest in the open doorway.

State v. Bullin, 150 N.C. App. 631 (2002). Officers entered the defendant’s residence with an arrest warrant for illegal drugs and arrested him. They then made a protective search of the home to ensure that another person who could harm them was not present. The officers seized drug items that they saw in plain view in the master bedroom closet. They then obtained a search warrant to search the residence. The court, relying on Maryland v. Buie, 494 U.S. 325 (1990), ruled that the protective search was valid. The court noted that the officers limited their search to obvious hiding places. Before conducting the protective search, the officers knew that the defendant (1) had a history of drug dealing, (2) was currently involved in drug dealing, (3) was a current suspect in a drug-trafficking investigation involving many people, and (4) resisted arrest when informed of the arrest warrant. The court also stated that drug trafficking was dangerous.

State v. Wallace, 111 N.C. App. 581 (1993). Officers received information from an informant that marijuana was being grown in the basement of a residence. However, the officers were unable to corroborate the informant’s information. Therefore, they went to the residence to investigate. After the officers knocked on the door, Jolly came out and closed the door behind him. The officers told him why they were there and asked him if there were others in the residence. Jolly told the officers that one of his roommates was asleep inside. The officers then asked for consent to search the residence. Before Jolly could answer, Wallace came out of the residence. The officers then asked for consent to search, which Wallace and Jolly denied. Jolly then stated that “there might be some drug paraphernalia and marijuana seeds in the house” and that he would not consent to a search until he had time to get rid of the contraband. Id. at 583. After the officers were denied consent to search, they heard footsteps in the residence and a door shut on the inside. The officers asked Wallace and Jolly who was in the residence, and they said they did not know because they had just arrived. The officers then went inside to execute a protective sweep before leaving the residence to obtain a search warrant. The officers saw what appeared to be marijuana plants while inside. The defendants were detained in the residence while the officers obtained a search warrant, which included information about their observation of marijuana in the house.

The court ruled as follows: (1) Uncorroborated information initially given to the officers was insufficient to establish probable cause to search the residence. (2) The officers did not violate the defendants’ rights by going to the residence to investigate. (3) Probable cause existed to search the residence when Jolly made the quoted statement above. (4) The officers did not have exigent circumstances to enter the residence without a search warrant. The court stated that the “record is devoid of any evidence that the officers entered the residence with a reasonably objective belief that evidence was about to be removed or destroyed.” Id. at 587. The court noted that the only purpose of the officers’ entry into the residence was to conduct a protective sweep until a search warrant could be obtained, and the officers did not believe that they were in danger at any time. (5) The State could not justify the search of the residence under the independent-source exception to the exclusionary rule; see Murray v. United States, 487 U.S. 533 (1988); Segura v. United States, 468 U.S. 796 (1984). In this case, the search warrant was prompted by what the officers saw in their unlawful entry, and the information obtained during the illegal entry was presented to the magistrate and affected the decision to issue the search warrant.

FEDERAL APPELLATE COURTS

United States v. Ford, 56 F.3d 265 (D.C. Cir. 1995). An officer conducting a protective sweep of premises could not lawfully lift a mattress or look behind a window shade when the officer knew that a person could not be found there.

United States v. Henry, 48 F.3d 1282 (D.C. Cir. 1995). The mere fact that an arrest occurs outside a residence does not bar officers from conducting a protective sweep of the residence under Maryland v. Buie, 494 U.S. 325 (1990), if there is a reasonable belief that a sweep is necessary to protect the safety of the arresting officers. The court found that the protective sweep was proper in this case. Compare with United States v. Colbert, 76 F.3d 773 (6th Cir. 1996) (court ruled that facts in case did not justify search of residence after defendant was arrested outside residence).

Frisk

(This topic is discussed in the chapter text under “Frisk of a Person for Weapons.”)

Generally

United States Supreme Court

Arizona v. Johnson, 555 U.S. 323 (2009). Three officers, members of a gang task force, were on patrol near a neighborhood associated with the Crips gang. They stopped a vehicle after a license-plate check revealed that the vehicle’s registration had been suspended for an insurance-related violation, which under Arizona state law was a civil infraction warranting a citation. There were three occupants in the vehicle: the driver, a front-seat passenger, and the defendant (a back-seat passenger). When making the stop, the officers had no reason to suspect anyone of criminal activity. Each officer dealt with one of the occupants. The officer involved with the defendant had noticed on her approach to the vehicle that the defendant had looked back and kept his eyes on the officers. The officer observed that the defendant was wearing clothing that was consistent with Crips membership. She also noticed a scanner in the defendant’s back pocket, which she believed that most people would not carry in that manner unless they were involved in criminal activity or trying to evade law enforcement. The defendant answered the officer’s questions (he provided his name and date of birth but had no identification; he said that he had served time in prison for burglary) and volunteered that he was from an Arizona town that the officer knew was home to a Crips gang. The defendant complied with the officer’s request to get out of the car. Based on her observations and the defendant’s answers to her questions, the officer suspected that he might have a weapon and frisked him and discovered a gun.

The Court reviewed its case law on stop and frisk beginning with Terry v. Ohio, 392 U.S. 1 (1968), particularly noting Pennsylvania v. Mimms, 434 U.S. 106 (1977) (officer may automatically order driver out of lawfully stopped vehicle); Maryland v. Wilson, 519 U.S. 408 (1997) (applying Mimms to passengers); and Brendlin v. California, 551 U.S. 249 (2007) (when vehicle is stopped, passengers as well as driver are seized). The Court stated that the combined thrust of these cases is that an officer who conducts a routine traffic stop may frisk the driver and any passenger the officer reasonably suspects to be armed and dangerous. The officer need not additionally have cause to believe that any vehicle occupant is involved in criminal activity.

Michigan v. Long, 463 U.S. 1032 (1983). An officer properly protected himself by conducting a search for weapons in the passenger compartment of a motor vehicle when (1) he stopped the vehicle, (2) the defendant was removed from the vehicle, and (3) the officer had a reasonable belief that the defendant was potentially dangerous and could obtain a weapon when he reentered the vehicle. In this case, officers already had seen a large knife in the vehicle’s interior when they removed the suspect, who was intoxicated. See also United States v. Stanfield, 109 F.3d 976 (4th Cir. 1997) (officers conducting traffic stop of vehicle with windows so heavily tinted that they are unable to view interior may open door of vehicle and visually inspect its interior); United States v. Brown, 133 F.3d 993 (7th Cir. 1998) (officer properly searched car for weapons when two men inside vehicle had been stopped for investigation of prowling in high-crime area); United States v. Holifield, 956 F.2d 665 (7th Cir. 1992).

Ybarra v. Illinois, 444 U.S. 85 (1979). When executing a search warrant that authorized a search (1) for drugs in a public tavern and (2) of the person of the tavern’s bartender, officers were not entitled to frisk the defendant—a bar patron who was present at the time of the search—without reasonable suspicion that he was armed and dangerous.

Pennsylvania v. Mimms, 434 U.S. 106 (1977). An officer had the right to frisk the defendant when he saw a bulge that he believed might be a weapon under the defendant’s jacket when he got out of his car.

Adams v. Williams, 407 U.S. 143 (1972). An officer had the authority to forcibly stop the defendant, who was sitting in a car in a high-crime area late at night, when a person whom the officer knew told him that the defendant was carrying narcotics and had a gun at his waist. After the officer approached the car, the defendant rolled down his window rather than complying with the officer’s request to step out of the car. Under these circumstances, the officer had a right to frisk the defendant by reaching toward the defendant’s waist for the gun in order to protect himself.

Sibron v. New York, 392 U.S. 40 (1968). An officer had no authority to frisk a defendant when the defendant put his hand in his pocket. The officer did not fear that the defendant was reaching for a weapon; instead, he thought that the defendant had narcotics in his pockets.

Terry v. Ohio, 392 U.S. 1 (1968). The Court recognized the authority of law enforcement officers to stop and frisk, although the opinion narrowly focused on an officer’s frisk of a defendant for weapons based on evidence that the defendant and an accomplice were about to rob a store. Justice Harlan’s concurring opinion discussed the officer’s right to make a forcible stop with articulable suspicion, a standard that requires less evidence than probable cause.

North Carolina Supreme Court

State v. Morton, 363 N.C. 737, rev’g 198 N.C. App. 206 (2009). The court, per curiam and without an opinion, reversed the ruling of the North Carolina Court of Appeals for reasons stated in Section I of the dissenting opinion, which concluded that officers had reasonable suspicion to conduct a frisk of the defendant. The dissenting opinion stated that under the totality of the circumstances, reasonable suspicion existed given that the officers were aware of the following: (1) at least one confidential informant had provided information in the past that had implicated the defendant in a recent drive-by shooting; (2) several informants and anonymous tipsters had reported that the defendant sold drugs in the area; (3) the defendant was traveling in a path from a food mart to his grandmother’s house as the informants and tipsters had claimed he would; (4) the defendant picked up his pace when he saw the officers looking in his direction; (5) the defendant was visibly nervous when the officers attempted to question him; and (6) the defendant was wearing red pants, which indicated to one of the officers, a gang analyst, that the defendant might be affiliated with a local gang. (See the complete analysis of the frisk issue in the dissenting opinion.)

State v. Pearson, 348 N.C. 272 (1998). Officer A stopped a car that had been drifting back and forth within its lane on an interstate highway and traveling below the speed limit. The defendant was the driver of the car, and there was a female passenger. Officer A asked the defendant to leave the vehicle and come to his patrol car. Officer A noticed that the defendant had a slight odor of alcohol about him, acted nervous, and had a rapid heart rate while in the patrol car. Officer A determined, however, that the defendant was tired, not impaired by alcohol. The defendant said that he and his fiancée had left the Charlotte area the day before and had spent the night at his parents’ home in Virginia. Officer A then talked to the passenger, who was seated in the defendant’s car. She said that the couple had spent the previous night in New York visiting the defendant’s parents. Officer A did not see any drugs or weapons in the defendant’s car. Officer A then returned to his patrol car and received the defendant’s written consent to search his car. Officer B arrived and was asked by Officer A to frisk the defendant while Officer A searched the defendant’s car. The officers testified at the suppression hearing that the defendant was frisked because it was standard procedure to do so when a vehicle is searched.

The court ruled that this evidence was insufficient to establish reasonable suspicion to frisk the defendant. The court noted that the defendant was polite and cooperative. The officers were not aware that the defendant had a criminal record or drug background. The defendant had not made any movement or statement that would indicate that he had a weapon. Neither the defendant’s nervousness nor the variance in the statements of the defendant and his fiancée was sufficient to justify the frisk. The court distinguished State v. McGirt, 122 N.C. App. 237 (1996), aff’d, 345 N.C. 624 (1997). The court also ruled that the defendant did not consent to be frisked. The written consent form authorized only a search of the defendant’s vehicle, not a search of his person. Also, the defendant’s acquiescence when Officer B told him he would frisk him was not consent, considering the circumstances of this case.

State v. Butler, 331 N.C. 227 (1992). The court upheld an officer’s stop and frisk of a drug suspect, citing these factors: (1) the officer who stopped and frisked the defendant saw the defendant in the midst of a group of people congregated on a corner known as a “drug hole”; (2) the officer had watched the corner daily for several months; (3) the officer knew that the corner was a center of drug activity because he had made four to six drug-related arrests there in the past six months; (4) the officer was aware of other arrests there; (5) the defendant was a stranger to the officer; (6) when the defendant made eye contact with the officer and other uniformed officers, he immediately left the corner and walked away, behavior that is evidence of flight; and (7) the officer’s experience was that people involved in drug trafficking are often armed. The court stated that, in considering the legality of the frisk, the officer was entitled to formulate “common-sense conclusions” about “the modes or patterns of operation of certain kinds of lawbreakers” in concluding that the defendant, reasonably suspected of drug trafficking, might be armed. Id. at 234 (quoting United States v. Cortez, 449 U.S. 411, 418 (1981), and citing other cases).

State v. Peck, 305 N.C. 734 (1982). An officer’s subjective belief that a defendant did not have a gun when the defendant reached in his pocket is immaterial in determining the legality of a frisk. Objective facts supported the officer’s frisk here because he needed to protect himself from a dangerous weapon that may have been in the defendant’s pocket.

North Carolina Court of Appeals

State v. Duncan, 272 N.C. App. 341 (2020). The defendant was stopped by an officer for a broken taillight and a passenger seatbelt violation. A second officer arrived shortly after the stop. The stopping officer saw an approximately five-inch closed pocketknife in the car’s center console between the driver and the passenger. The officer then asked the defendant to step out of the car so that the knife could be secured and the defendant could be checked for weapons. The defendant exited the car and stated that having the knife was not a crime. The officer agreed, stating that he was acting out of officer safety. The defendant stated he was not armed and did not consent to a frisk. When the officer said that he was just going to pat the defendant down, the defendant said “all right” and raised his arms. After the frisk was conducted, the officer discovered cocaine.

The State argued that the frisk was justified by the presence of the knife in the center console—because the defendant was armed, he was dangerous—and that the trial court erred in concluding otherwise. The court of appeals disagreed. Two officers were present, the defendant was stopped for equipment violations only, and the stop occurred in the middle of the day near a courthouse. The defendant was generally cooperative, did not attempt to conceal the knife, got out of the car (and away from the knife) upon request, and did not otherwise act suspiciously. These facts were entirely inapposite from cases where (1) an officer had reason to suspect that a defendant possessed and concealed a dangerous weapon on his or her person and (2) that reason to suspect was coupled with behavior giving rise to a suspicion that the defendant may be dangerous. The court distinguished State v. Malachi, 264 N.C. App. 233 (2019), and ruled that the trial court did not err in concluding that the frisk was unconstitutional.

State v. Johnson, 246 N.C. App. 677 (2016). In this drug-trafficking case, the court ruled that an officer had reasonable suspicion to extend a traffic stop. After Officer Ward initiated a traffic stop and asked the driver for his license and registration, the driver produced his license but was unable to produce a registration. The driver’s license listed his address as Raleigh, but he could not give a clear answer as to whether he resided in Brunswick County or Raleigh. Throughout the conversation, the driver changed his story about where he resided. The driver was speaking into one cell phone and had two other cell phones on the center console of his vehicle. The officer saw a vehicle power control (VPC) module on the floor of the vehicle, an unusual item that might be associated with criminal activity. When Ward attempted to question the defendant, who was a passenger in the vehicle, the defendant mumbled answers and appeared very nervous. Ward then determined that the driver’s license of the vehicle’s driver was inactive, issued the driver a citation, and told him that he was free to go. However, Ward asked the driver if he would mind exiting the vehicle to answer a few questions. Ward also asked the driver if he could pat him down, and the driver agreed. Meanwhile, Deputy Arnold, who was assisting, observed a rectangular shaped bulge underneath the defendant’s shorts, in his crotch area. When he asked the defendant to identify the item, the defendant responded that it was his male anatomy. Arnold asked the defendant to step out of the vehicle so that he could do a pat down; before this could be completed, a ziplock bag containing heroin fell from the defendant’s shorts. The court ruled that the extension of the traffic stop in this case was justified based on the following: the driver could not answer basic questions, such as where he was coming from and where he lived; the driver changed his story; the driver could not explain why he did not have his registration; the presence of the VPC was unusual; and the defendant was extremely nervous and gave vague answers to the officer’s questions. The court also ruled that the officer properly frisked the defendant. The defendant’s nervousness, evasiveness, and failure to identify what was in his shorts, coupled with the size and nature of the object observed by the deputy, supported a reasonable suspicion that the defendant was armed and dangerous.

State v. Hargett, 241 N.C. App. 121 (2015). In the course of rejecting the defendant’s ineffective-assistance-of-counsel claim related to preserving a denial of a motion to suppress, the court ruled that no prejudice occurred because the trial court properly denied the motion. An officer received a report from an identified tipster that a window at a residence appeared to have been tampered with and that the owner of the residence was incarcerated. After the officer confirmed that a window screen at the named residence had been pushed aside and that the window was open, he repeatedly knocked on the door. Initially there was no response. Finally, an individual inside (the defendant) responded, asking, “Who’s there?” The officer responded, “It’s the police.” The individual said, “Okay,” came to the door, and opened it. When the officer asked the person’s identity, the defendant gave a very long, slow response, finally gave his name, but either would not or could not provide any identification. When asked who owned the house, the defendant gave no answer. Although the defendant was asked repeatedly to keep his hands visible, he continued to put them in his pockets. These facts were sufficient to (1) create reasonable suspicion that the defendant might have broken into the home and (2) justify a frisk of the defendant. During the lawful frisk, the officer discovered and identified baggies of marijuana in the defendant’s sock by plain feel.

State v. Henry, 237 N.C. App. 311 (2014). The court ruled that even if the defendant had properly preserved the issue for appeal, a frisk conducted during a valid traffic stop was lawful when the officer knew that the defendant had prior drug convictions, the defendant appeared nervous, the defendant deliberately concealed his right hand and refused to open it despite repeated requests, and the officer knew from his training and experience that people who deal drugs frequently carry weapons and that weapons can be concealed in a hand.

State v. Sutton, 232 N.C. App. 667 (2014). The court ruled that an officer had reasonable suspicion to stop and frisk the defendant when the defendant was in a high-crime area and made movements that the officer found suspicious. The defendant was in a public housing area patrolled by a Special Response Unit of the United States Marshals Service and the Drug Enforcement Administration concentrating on violent crimes and gun crimes. The officer in question had ten years of experience and was assigned to the Special Response Unit. Many people were banned from the public housing area—in fact, the banned list was nine pages long. On a prior occasion, the officer had heard shots fired near the area. In the present case, the officer saw the defendant walking normally while swinging his arms. When the defendant turned and “used his right hand to grab his waistband to clinch an item” after looking directly at the officer, id. at 673 (quoting trial judge’s findings of fact), the officer believed that the defendant was trying to hide something on his body. The officer then stopped the defendant to identify him, frisked him, and found a gun in the defendant’s waistband.

State v. Phifer, 226 N.C. App. 359 (2013). The court ruled that the trial court improperly denied the defendant’s motion to suppress evidence of a firearm discovered on his person. An officer saw the defendant walking in the middle of the street. The officer stopped the defendant to warn him about impeding the flow of street traffic. After issuing this warning, the officer frisked the defendant because of his “suspicious behavior”—specifically, that he “appeared to be nervous and kept moving back and forth.” Id. at 361–62 (quoting trial judge’s findings of fact). The court found that “the nervous pacing of a suspect, temporarily detained by an officer to warn him not to walk in the street, is insufficient to warrant further detention and search.” Id. at 362–63.

State v. Hemphill, 219 N.C. App. 50 (2012). The court of appeals ruled that an officer, after feeling a screwdriver and wrench on the defendant’s person during a pat-down, was justified in removing the tools because they both constituted a potential danger to the officer and were suggestive of criminal activity at a closed business late at night.

In re D.B., 214 N.C. App. 489 (2011). The court of appeals ruled that the trial court erred by admitting evidence obtained by an officer who exceeded the proper scope of a Terry frisk. After the officer stopped a juvenile, he conducted a weapons frisk and found nothing. When the officer asked the juvenile to identify himself, the juvenile did not respond. Because the officer thought that he felt an identification card in the juvenile’s pocket during the frisk, he retrieved it. It turned out to be a stolen credit card, which was admitted into evidence. Although officers who lawfully stop a person may ask a moderate number of questions to determine the person’s identity and gain information confirming or dispelling the suspicions that prompted the stop, no authority suggests that an officer may physically search a person for evidence of his or her identity in connection with a Terry stop.

State v. King, 206 N.C. App. 585 (2010). The court ruled that an officer had reasonable suspicion to believe that the defendant was armed and dangerous, justifying a pat-down frisk. Around midnight, the officer stopped the defendant’s vehicle after determining that the vehicle’s tag was registered to a different car. Before the stop, the defendant and his passenger had looked oddly at the officer. After the stop, the defendant held his hands out the vehicle’s window; volunteered that he had a gun, which was loaded; and when exiting the vehicle removed his coat, even though it was cold outside. At this point, the pat-down occurred. The court rejected the defendant’s argument that his efforts to show that he did not pose a threat obviated the need for the pat-down. It also rejected the defendant’s argument that the discovery of the gun could not support a reasonable suspicion that he still might be armed and dangerous. Instead, the court concluded that the confirmed presence of a weapon was a compelling factor justifying a frisk, even when that weapon was secured and out of the defendant’s reach. Additionally, the officer was entitled to formulate “common-sense conclusions”—based upon an observed pattern that one weapon often signals the presence of other weapons—in believing that the defendant, who had already called the officer’s attention to one readily visible weapon, might be further armed.

State v. Campbell, 188 N.C. App. 701 (2008). At approximately 3:40 a.m., Officer A responded to a report of a breaking and entering in progress at a residence. While driving to the residence (he arrived within three minutes of the report), the officer saw the defendant riding a bicycle on a road that was near the reported break-in (about a quarter-mile away). The officer did not see anyone else in the vicinity. The officer continued on to the dwelling without making any contact with the bicyclist. He saw that a window at the residence had been opened with a small, flathead screwdriver or a pry tool and notified other officers of that information. Officer B, aware of Officer A’s report about the bicyclist and the break-in—including the type of instrument that may have been used—eventually stopped the defendant, who had a backpack and was playing with something inside it. Officer C arrived and recognized the defendant as having an extensive history of breaking and entering as well as being a substance abuser. Officer B handcuffed the defendant and frisked him. A small flashlight and a Swiss Army–type knife were found in the defendant’s pockets. The defendant was then arrested. The court ruled that Officer B had reasonable suspicion to stop the defendant, noting the defendant’s proximity to the break-in, the time of day, and the absence of other people in the area. The court also ruled that the officer did not violate the Fourth Amendment by handcuffing and frisking the defendant during the investigative stop. Handcuffing was supported by the knowledge of one of the officers that the defendant was a flight risk based on prior history. The frisk for weapons was justified by the late hour and the nature of the crime committed. The defendant could have been carrying anything from a pen that had an enclosed knife to a small handgun.

State v. Parker, 183 N.C. App. 1 (2007). A narcotics detective was conducting surveillance of the defendant in response to a citizen’s complaint that the defendant was trafficking in methamphetamine. He stopped a vehicle that the defendant was driving because it was going approximately 60 m.p.h. in a 45 m.p.h. zone and then it passed another vehicle at approximately 80 m.p.h. in a 55 m.p.h. zone. The defendant stepped out of his vehicle and approached the detective’s vehicle. The detective ordered the defendant to return to his vehicle, but he refused to do so. The detective then secured the defendant in the back seat of the defendant’s vehicle. Two passengers (A and B) were also seated in the vehicle. The defendant told the detective that there was a gun in the vehicle. The detective opened the door to the front passenger seat where A was sitting and saw a 12-gauge shotgun located between the seat and door. As the detective assisted A and B out of the vehicle, he saw a piece of newspaper fall to the ground. The detective then conducted a weapons frisk of the vehicle for his own safety to make sure that there were no other weapons there. He examined the piece of newspaper and saw that it was covering a drawstring bag. Inside the bag he found a substance he believed to be methamphetamine and a smoking device. He found a pistol under the front passenger seat. The court ruled that the officer conducted a valid “vehicle frisk” for weapons inside the defendant’s vehicle under Michigan v. Long, 463 U.S. 1032 (1983). The detective had a reasonable belief that the defendant was dangerous and had immediate access to a weapon in the car. And the search of the drawstring bag was a valid part of the weapons search.

State v. Edwards, 164 N.C. App. 130 (2004). Suspecting that the defendant had committed sexual assaults on females on December 23, 2000, and December 26, 2000, based on information gathered from the victims, officers placed him under surveillance. On January 9, 2001, evidence from surveillance at about 2:50 a.m. indicated that the defendant’s car had left his residence and was traveling toward a nearby town. At about 4:00 a.m., officers heard an alert from that town’s police that a female had been sexually assaulted with a handgun by a person whose general description matched the defendant’s. Officers saw no vehicles on the road that night other than patrol cars (it was snowing). The defendant’s vehicle then passed an officer’s vehicle; it was coming from the other town and heading to the defendant’s residence. The officers stopped the defendant’s vehicle. The defendant immediately put both of his hands underneath his seat and jumped out of the vehicle. Officers had to draw their weapons on the defendant because he failed to comply with their orders. After handcuffing the defendant, one of the officers searched under the front seat of the defendant’s vehicle for a weapon and found a handgun.

(1) The court ruled that the officers had reasonable suspicion to stop the defendant to investigate the recent sexual assault. The court noted that the officers also had authority to stop the vehicle because it had an expired Illinois license plate. (2) The court ruled that the officer had the authority to make a protective search of the defendant’s vehicle for a weapon under Michigan v. Long, 463 U.S. 1032 (1983).

State v. Harper, 158 N.C. App. 595 (2003). Based on an investigation that indicated that people in a hotel room were involved with illegal drugs, an officer knocked on the door to the room. The defendant initially opened the door slightly and then, while continuing to have a conversation with the officer, opened it about halfway. The officer asked the defendant if he could step inside the room to see if George Davis was in. The defendant then stepped back from the officer and the threshold of the door and opened the door almost to its full extension. The officer saw a set of electronic scales on the nightstand between the room’s two beds and knew that drug dealers often used such scales to measure illegal drugs. There was another person in the room in addition to the defendant. That person started moving around the room, refused the officer’s order to remain seated on a bed, and became increasingly agitated. The officer handcuffed him. The defendant defied the officer’s order to remain seated on a bed, so the officer handcuffed him as well. The officer then searched for weapons in the mattresses and nightstand. The officer and other officers saw illegal drugs and cash in these places. They obtained a search warrant, conducted a search of the hotel room, and seized evidence. The court ruled that the warrantless search for weapons of the mattresses and nightstand drawer (where the defendant and the other person had repeatedly moved) was justified for the officers’ self-protection.

State v. Martinez, 158 N.C. App. 105 (2003). The court ruled that reasonable suspicion supported an officer’s investigative stop of a vehicle for possible criminal activity. At 2:00 a.m., Officer A was on routine patrol in a marked vehicle when he saw and drove past a male pedestrian. The officer immediately turned around and pulled over on the side of the road behind the pedestrian. On seeing the officer, the pedestrian ran toward the woods in the direction of a mobile home park. About four minutes later, while the officer was driving through the mobile home park in an unsuccessful attempt to locate the pedestrian, Officer B contacted Officer A by radio and informed him that there was a motor vehicle parked on the right shoulder of the road near the mobile home park. Officer A then drove out of the mobile home park and saw a white vehicle leaving the right shoulder of the road near the mobile home park. This vehicle was located about fifty yards from the place where the officer had seen the pedestrian flee from him earlier. The officer then stopped the vehicle. The court stated that it was reasonable for the officer to infer that the person who had fled from him was in some way related to the stopped vehicle located a mere fifty yards from the fleeing pedestrian. The fact that the stop occurred around 2:00 a.m., when there was generally no foot traffic and there were no vehicles on the road except this vehicle and patrol vehicles, contributed to the officer’s suspicion. The court also ruled that a frisk of the driver of the stopped vehicle (the defendant) was proper. After presenting the officer with a Maryland driver’s license, the defendant began digging around in the glove compartment of his vehicle and then reaching around to several areas in the vehicle’s interior, including behind the passenger seat toward the floorboard. The defendant exhibited a significant degree of nervousness. Concerned for his safety, the officer asked the defendant to exit the vehicle. The defendant did not respond when asked if he had any weapons. During the pat-down for weapons, the officer felt a large bulge in the defendant’s right front pants pocket and asked the defendant what the object was. The defendant responded, “Dope.” The officer retrieved a large amount of currency and two bags of cocaine from the pocket. The court ruled that the defendant’s nonresponse to the officer’s question about weapons and his nervous digging around in the vehicle supported the frisk. Relying on State v. Benjamin, 124 N.C. App. 734 (1996) (Miranda warnings not required before question asked during frisk), the court also ruled that the officer’s brief inquiry during the frisk was not improper.

State v. Summey, 150 N.C. App. 662 (2002). Officers were conducting surveillance in a known drug area. An officer watched a residence that had been the subject of a nuisance-abatement proceeding for drug-related activities. A group of men were standing in the residence’s front yard. The officer saw a pickup truck stop at the residence. One man in the yard approached the truck and appeared to converse with the driver. A few moments later, the man returned to the yard and the truck drove away. Believing he had witnessed a drug transaction, the officer radioed other officers, who stopped the vehicle. The defendant was seated in the passenger seat with her left hand hidden underneath a fabric material. An officer recognized her from prior investigative stops. Concerned about small weapons in her hand, the officer asked her to show her hands. She lifted her hands but kept her left hand closed in a fist. The officer noticed a rock-like substance, which he believed to be crack cocaine, wedged in a gap between the defendant’s fingers. She refused to open her left hand. The officer applied pressure to the back of her hand and forced it open. The officer recognized one piece of crack cocaine that fell from her hand while another piece remained stuck to her palm.

(1) The court ruled that reasonable suspicion existed to make an investigative stop of the vehicle for illegal drugs. (2) The court ruled that reasonable suspicion existed to search the defendant’s closed hand for weapons. The court noted that at the suppression hearing, the officers testified that they had been trained that a small knife or razor blade could be concealed in a clenched fist. Also, the search of the defendant’s hand was justified by the officer’s having seen crack cocaine wedged in her fingers. (3) The court ruled that reasonable force was used to open the defendant’s closed hand to search for weapons and to prevent the destruction of evidence.

State v. Briggs, 140 N.C. App. 484 (2000). Officers were conducting a driver’s license check in a high-crime area. As one officer returned the defendant’s license to him, another officer recognized the defendant as someone whom he had previously arrested for cocaine offenses. The second officer knew that the defendant was on probation and had been convicted of drug offenses more than once. Although the defendant denied that he had been drinking or taking drugs, the second officer noted that the defendant was chewing gum “real hard” and that his eyes were glassy and bloodshot. Also, this same officer smelled the odor of burned cigar tobacco inside the vehicle and on the defendant’s person. When this officer asked the defendant about the smell, the defendant stated that he did not smoke cigars but that a female who was in the vehicle earlier had been smoking a cigar. The officer knew from his experience that drug users often smoke cigars to mask the smell of illegal drugs. The defendant declined the officer’s request to search the vehicle. The officer then directed the defendant to get out of the vehicle and frisked him for weapons. The officer was aware from his experience that drug dealers frequently carry weapons. The officer testified that during the frisk, “I felt a hard, cylindrical shape in [defendant’s] pocket and it felt like a cigar holder; and I’m familiar with these because folks carry these frequently to keep their controlled substances in. It’s like a little plastic test tube with a little cap on it; and there’s really nothing else that’s shaped exactly like that.” Id. at 486–87 (quoting trial court transcript). The officer asked the defendant what that object was, and the defendant stated, “A cigar holder.” The officer said, “I thought you didn’t smoke cigars,” but the defendant did not respond. Id. at 487 (quoting transcript). The officer then removed the cigar holder from the defendant’s pocket, and when he shook it, the cigar holder “rattled like it had a number of small hard objects in it.” Id. The officer opened the cigar holder, found ten rocks of crack cocaine inside, and arrested the defendant.

The court ruled, relying on State v. Butler, 331 N.C. 227 (1992), and State v. McGuirt, 122 N.C. App. 237 (1996), aff’d, 345 N.C. 624 (1997), that the officer had reasonable suspicion to conduct the frisk based on the facts discussed above. (2) The court ruled that the officer had probable cause to seize the cigar holder under the plain-feel doctrine set out in Minnesota v. Dickerson, 508 U.S. 366 (1993). The court discussed cases from other jurisdictions that have split on the issue of whether the plain-feel doctrine may be satisfied when an officer feels a container the shape of which does not itself reveal its identity as contraband. Courts upholding such seizures consider factors in addition to the officer’s tactile perception to determine probable cause. Other courts declining to uphold such seizures have determined that touching the containers themselves cannot sustain a probable cause finding. The court adopted the view that it would consider the totality of circumstances in deciding whether an officer had probable cause to seize such a container when the officer felt it, and the court stated that a probable cause determination involves considering the evidence as understood by law enforcement officers. Based on the facts discussed above, the court ruled that the officer in this case had probable cause to seize the cigar holder.

State v. Minor, 132 N.C. App. 478 (1999). Two officers stopped a car because its temporary tag was smeared and illegible. Before stopping the car, Officer A had seen the defendant-passenger move his hand toward the center console of the car after the police car’s blue lights had been activated. Officer A removed the driver, frisked him, and talked with him while Officer B stood at the passenger side of the car. Officer B saw the defendant rub his hand on his thigh as though feeling his pocket. The defendant then put his hand on the door handle as if to emerge from the car but dropped his hand and remained in the car when he saw Officer B beside the car. After determining that the driver had no weapons, Officer A ordered the passengers—the defendant and one other passenger—out of the car. Both men were frisked, and no contraband or weapons were discovered. Officer A then searched the interior of the car and found a jacket with a .32-caliber handgun in the pocket where the defendant had been sitting.

Distinguishing Michigan v. Long, 463 U.S. 1032 (1983) (officer may search vehicle for weapon when officer has reasonable suspicion that occupant is dangerous and may gain access to weapon), and relying on State v. Braxton, 90 N.C. App. 204 (1988), the court ruled that the officer’s search of the car was not justified under Long. The court stated that the defendant’s motions were not “clearly furtive.” Because the officers did not have any specific knowledge linking the defendant to criminal activity or any reasonable belief that he was armed or dangerous, the search of the vehicle violated the Fourth Amendment.

State v. Willis, 125 N.C. App. 537 (1997). Officers were conducting surveillance of a residence while a search warrant was being sought to search it for drugs. The defendant, whom the officers did not recognize, left the residence on foot. Concerned that he might be involved in drug activity occurring in the residence, the officers decided to follow him. When the defendant realized that he was being followed, he took evasive action by cutting through a parking lot. A detective then asked a uniformed officer to stop the defendant and ask him for identification. That officer approached the defendant on foot, told him he was conducting an investigative stop, and asked him for identification and for consent to a pat-down for drugs and weapons. The defendant consented to the pat-down. The officer began to pat down the exterior and then the interior of the defendant’s leather jacket. Just as the officer began to check the jacket’s interior pocket, the defendant lunged into the jacket with his hand. The officer, believing that the defendant might be reaching for a weapon and fearing for his safety, immediately locked his hands around the defendant’s jacket, effectively locking the defendant’s hand inside the pocket. Another officer arrived and assisted the officer. When the two officers managed to get the defendant’s hand out of his pocket, they put the defendant’s hands behind him and reached into the defendant’s interior jacket pocket and emptied it, revealing several baggies of crack cocaine.

Relying on State v. Butler, 331 N.C. 227 (1992), the court ruled that the officer’s investigative stop was supported by reasonable suspicion. The court noted that the defendant left a suspected drug house just before the search warrant was to be executed. He took evasive action when he knew that he was being followed, and he exhibited nervous behavior. The court also ruled that the frisk and resulting search of the defendant’s jacket pocket was proper. The court noted that the officers reasonably feared for their personal safety based on (1) their knowledge that people involved with drugs often carry weapons; (2) the defendant’s exit from the suspected drug house; (3) the defendant’s later furtive, evasive behavior; and (4) the defendant’s sudden lunge of his hand into the interior of his jacket.

State v. Hamilton, 125 N.C. App. 396 (1997). An officer involved in drug surveillance stopped a vehicle because the driver and front-seat passenger were not wearing seat belts as required by law. As the officer approached the front passenger side of the vehicle and informed the defendant (the front-seat passenger) that he was a police officer, the defendant began to reach his hand toward his left side. The officer believed that the defendant was reaching for a weapon. The officer then asked the defendant to step outside the vehicle and told him that he was going to frisk him. The court ruled that the officer was justified in conducting the frisk.

State v. Rhyne, 124 N.C. App. 84 (1996). An officer received an anonymous report that people were selling drugs in the breezeway of a building. The court ruled that the officer did not have reasonable suspicion to frisk the defendant, who was sitting in the breezeway, because (1) the anonymous tip was not specific to the defendant; (2) although the area was known for drug activity, the defendant lived there; and (3) the defendant was cooperative when questioned and did not flee.

State v. Artis, 123 N.C. App. 114 (1996). An officer who was part of a drug-interdiction task force at an airport saw the defendant operating a video game in the airport game room, a location that had a reputation for drug activity. The game room could be accessed without going through the airport’s metal detectors. The officer approached the defendant, identified himself, and learned that the defendant intended to take a departing flight. The officer saw a large crescent-shaped bulge in the defendant’s left front pocket that appeared to be either brass knuckles or a weapon’s handgrip. The officer asked the defendant several times if he was carrying any weapons or drugs, and the defendant responded each time by asking, “Why would I carry weapons or drugs?” The officer then told the defendant that he thought he was carrying a weapon in his left front pocket and that he wanted to pat the area down to satisfy himself that the object was not a weapon. As he made this statement, the officer reached for the pocket. The defendant, however, turned away from the officer and attempted to take a step backward. As the defendant stepped back, the officer placed his hand inside the defendant’s pants pocket and on the object. The officer thought the object was brass knuckles. The defendant attempted to reach into the pocket despite the officer’s request not to do so. The officer reached into the pocket to get control of the suspected weapon and removed a clear plastic bag that contained crack cocaine.

The court ruled that the officer’s frisk violated the Fourth Amendment. The court stated that the officer had only a generalized suspicion to conduct the frisk, and it was not reasonable to infer that the bulge in the defendant’s pants pocket was a weapon simply because the defendant had not yet passed through the airport’s metal detectors. Also, the officer had no apparent need to check whether the defendant was armed with a weapon that could be used against him or others. When the officer approached, the defendant was merely operating a video game machine.

State v. McGirt, 122 N.C. App. 237 (1996), aff’d, 345 N.C. 624 (1997). An officer stopped a vehicle because the defendant-driver was not wearing his seat belt. The officer had been looking for the defendant’s vehicle the prior night and was investigating the defendant for cocaine trafficking. The officer knew that the defendant had prior felony drug convictions and, based on his experience, knew that cocaine traffickers normally carry weapons. After stopping the vehicle, the defendant complied with the officer’s request to exit the vehicle. When the officer asked the defendant if he had anything on him, the defendant said “no” and raised his hands. The officer then frisked the defendant and felt a hard object, which the officer believed was a gun. When the officer asked the defendant to identify the object, the defendant said that it was a pistol and handed it to the officer.

The court ruled that the officer, based on this evidence, had reasonable suspicion to frisk the defendant. The court noted that (1) the officer knew that the defendant was a convicted felon, (2) the defendant was under investigation by the officer for cocaine trafficking, and (3) it was the officer’s experience that cocaine traffickers normally carry weapons. The court stated that the totality of circumstances, even in the face of a cooperative defendant who presents no obvious signs of carrying a weapon, supported the legality of the frisk for weapons.

State v. Clyburn, 120 N.C. App. 377 (1995). Officers were conducting surveillance at night at a place that had a reputation for drug activity and where officers had previously made drug arrests. Officers saw three males in front of a vacant duplex. Individuals would approach one of the males, who would disappear behind the duplex with each individual. The other two males remained in front of the duplex as if acting as lookouts. Each time the defendant reappeared, the other two males conferred with him. Based on the officers’ training and experience with similar activity, they believed that drug transactions were being conducted. After one such activity, one of the males and a female got into a car and drove away. Officers stopped the car and frisked the male (the defendant) and female. An officer searched the passenger area of the car and found a .357 Magnum in the glove compartment. The male was arrested for carrying a concealed weapon. Following the arrest, officers searched the car and found crack cocaine in an ashtray.

The court ruled that (1) the officers had reasonable suspicion to stop the car to investigate drug activity and (2) the search of the car for weapons was proper under Michigan v. Long, 463 U.S. 1032 (1983); after the defendant had been frisked, he became belligerent, and the officers could reasonably believe that the defendant was potentially dangerous and might be armed because of his involvement in drug trafficking. The court also cited State v. Butler, 331 N.C. 227 (1992).

State v. Fleming, 106 N.C. App. 165 (1992). At 12:10 a.m., officers were in a housing-project area where illegal drug activity was common. An officer saw the defendant and a companion, strangers to the area, standing in an open area between two apartment buildings. The two men watched the officer for a few minutes and began walking on a sidewalk away from him. The officer drove around to where the men were walking, got out of his car, and commanded them to come to him. They hesitated a minute and then approached him. The officer thought that the defendant was acting “real nervous.” As the officer was questioning the defendant about why he was in the area, to which the defendant responded that a friend had dropped him off and he was walking through, the officer frisked him and found crack cocaine. The court ruled, relying on Brown v. Texas, 443 U.S. 47 (1979), that the officer’s stop and frisk of the defendant was not supported by reasonable suspicion of criminal activity.

State v. Hudson, 103 N.C. App. 708 (1991). An officer went to a car that was stopped for a motor vehicle violation to get the vehicle identification number and saw a passenger sitting in the front seat with an open newspaper across her lap. The officer feared that there might be a weapon under the newspaper because it was not at an angle appropriate for reading and there was not sufficient light to read (the car’s dome light was not on). When the officer asked the passenger if she had identification, she said “no.” He asked her to step out of the vehicle, which she did, carrying a briefcase. The officer then saw in plain view another briefcase on the vehicle’s floorboard with the butt of a gun protruding from it. He opened it and found two handguns and money. The officer then searched the briefcase in the passenger’s possession and found cocaine and a revolver. The court ruled that the officer had authority (1) to order the passenger out of the vehicle based on reasonable suspicion that she may have been trying to hide a weapon and (2) to search the briefcase on the vehicle’s floorboard with a gun protruding from it for his self-protection.

State v. Harris, 95 N.C. App. 691 (1989), aff’d per curiam, 326 N.C. 588 (1990). Officers were outside a motel room planning to execute a search warrant for the room the next time the door to the room opened. The officers were looking for a person named Bernard Hobson, who was wanted on drug charges. When the defendant left the room, some officers went into the room to execute the warrant while other officers frisked the defendant for a weapon. The court ruled that the frisk was proper because (1) the officers had reasonable suspicion that people in the room were armed because Hobson was wanted on drug charges and the officers knew that there had been significant traffic in and out of the room that may have been related to drug dealing, (2) the officers believed that weapons would be found on people in this drug setting based on their previous experience that weapons were found in at least 85 percent of similar situations, and (3) the officers were involved in a swiftly developing situation. Even if the officers knew that the defendant was not Hobson, they acted properly because they did not know whether the defendant would leave the premises or perhaps turn around and begin shooting.

State v. Adkerson, 90 N.C. App. 333 (1988). An officer arrested the driver of a vehicle for impaired driving and placed him in his patrol car. He returned to the vehicle and found marijuana on the front seat. The defendant was sitting in the back seat with his feet on a jacket, and a brown paper bag was on the floor. The officer ordered the defendant out of the car and frisked him for weapons before conducting a search of the back seat. The court ruled that the frisk was justified because of the late hour, the rural surroundings, and the officer’s vulnerable position if he were to lean over toward the floor of the car with someone standing behind him.

State v. Braxton, 90 N.C. App. 204 (1988). An officer activated his blue light in an effort to stop a speeding car and later turned on his siren when the defendant-driver failed to stop. He saw the defendant appear to stuff something under his seat, and then the defendant stopped his car. The officer pulled over, parked behind the defendant, and got out of his car. The defendant started moving his car forward and again appeared to be stuffing something under the seat. The officer got back in his car and followed the defendant. The defendant then stopped his car again. As the officer approached the defendant’s car, the defendant got out of his car and closed the door. The officer asked the defendant twice what he had stuffed under the seat; the defendant did not answer either time. The officer opened the car door, reached under the front seat, and discovered a plastic bag containing marijuana.

The court ruled that the officer’s action was not justified as a protective search for weapons under Michigan v. Long 463, U.S. 1032 (1983), discussed above in this section under “UNITED STATES SUPREME COURT.” [Author’s note: The court inadequately explained why the facts did not support the officer’s action; it stated that the “defendant could not obtain any weapon or other item from the car,” Braxton, 90 N.C. App. at 209, yet the defendant was not under arrest then and clearly could have reentered his car if the officer had decided to write a citation for the speeding violation.] Compare with United States v. Nash, 876 F.2d 1359 (7th Cir. 1989) (1990) (search of car for weapon justified under Long when officer saw defendant—while still driving—make furtive gesture by appearing to raise himself up from car seat and begin reaching toward floor, and when officer approached car he saw jacket tucked under defendant’s lap and stretched out to floor); United States v. Colin, 928 F.2d 676 (5th Cir. 1991) (car passenger stooping down and moving from side to side in front seat justified frisk); United States v. Woodall, 938 F.2d 834 (8th Cir. 1991) (passenger’s reaching down to floorboard twice and officer’s knowledge of passenger and driver as drug traffickers permitted frisk of both); United States v. Moorefield, 111 F.3d 10 (3d Cir. 1997) (car passenger’s furtive hand movements and refusal to obey officers’ orders that he remain in vehicle and keep his hands in air while officers conducted traffic stop permitted frisk).

State v. Collins, 38 N.C. App. 617 (1978). As an intoxicated passenger stepped out of a car, an officer saw a bulge in his pants pocket that appeared to be a knife. The officer properly frisked the defendant and seized a key chain and the plastic bag containing marijuana that was twined around it. See also United States v. Rideau, 969 F.2d 1572 (5th Cir. 1992) (en banc) (proper frisk of intoxicated person standing in road at night in high-crime area).

State v. Long, 37 N.C. App. 662 (1978). In a case decided before Ybarra v. Illinois, 444 U.S. 85 (1979), but not necessarily inconsistent with its rationale, the court ruled that an officer properly frisked for weapons the boot of a person who was present in private premises when a search warrant for drugs was being executed. Drugs found in the boot were properly seized. The court stated that a frisk for weapons automatically may be made of all persons present in a private residence when it is searched with a search warrant, at least when probable cause exists that it is a place where drugs are bought and sold.

State v. Stanfield, 19 N.C. App. 622 (1973). An officer received a phone call from an informant (apparently from an informant the officer knew, but that fact is not clear from the court’s opinion) telling him that the defendant had a pistol in his coat at a shopping mall. The officer knew about the defendant’s prior criminal background, went to the mall, noticed a bulge in the defendant’s coat pocket, and frisked him. The officer’s action was proper under Terry v. Ohio, 392 U.S. 1 (1968), and Adams v. Williams, 407 U.S. 143 (1972).

Federal Appellate Courts

United States v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc). The Ranson, West Virginia, police received an anonymous tip stating that not long ago, a man in a parking lot that was widely known for drug-trafficking activity had loaded a firearm, concealed it in his pocket, and gotten into the passenger side of a blue-green Toyota Camry. After noticing that the occupants of a car meeting this description were not wearing seatbelts, police stopped the vehicle. Reasonably believing that the passenger in the Camry was armed, the police frisked him and discovered a firearm. They then arrested him for the possession of a firearm by a felon. The defendant moved to suppress the firearm, arguing that the officers lacked reasonable suspicion to believe that he was armed and dangerous, as they had no reason to believe that he was not a concealed-carry permit holder. The Fourth Circuit Court of Appeals disagreed, concluding that when an officer makes a lawful traffic stop and has a reasonable suspicion that one of the occupants of the stopped vehicle is armed, the officer may frisk that individual for the officer’s own protection and for the safety of anyone who may be on the scene. The court determined that a risk of danger sufficient to justify a frisk arises “from the combination of a forced police encounter and the presence of a weapon,” even if the weapon is possessed legally. Id. at 696. The court stated that for police officers, traffic stops are, in and of themselves, inherently dangerous. It also emphasized that determining whether a detainee is armed and dangerous does not require two separate inquiries; if a person is armed, by implication that person is dangerous. The court added that while the lawful stop of the defendant and the reasonable suspicion that he was armed justified the frisk in this case, the officers had knowledge of additional facts set out in its opinion that increased the level of their suspicion that he was dangerous.

United States v. Burton, 228 F.3d 524 (4th Cir. 2000). An officer did not have reasonable suspicion to conduct a frisk of the defendant during a voluntary encounter with him when the defendant declined to answer the officer’s questions, had his hand in his coat pocket, and refused the officer’s request to remove his hand from the pocket.

United States v. Sakyi, 160 F.3d 164 (4th Cir. 1998). The court ruled that during a lawful traffic stop of a vehicle, when an officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence of factors allaying his or her safety concerns, order the occupants out of the vehicle and pat them down briefly for weapons to ensure the officer’s safety and the safety of others.

United States v. Swann, 149 F.3d 271 (4th Cir. 1998). An officer stopped and frisked two suspects. The officer felt something hard and unusual in the defendant’s sock. He did not testify that he believed it to be a weapon or that he knew it was not a weapon; rather, he stated only that he did not know what it was. The court ruled that even though the officer did not testify that he believed the item in the defendant’s sock to be a weapon when he removed it, a reasonable officer in these circumstances could have believed that the item was a weapon—specifically, a box cutter with a sharp blade. Thus, the frisk was constitutional.

United States v. Menard, 95 F.3d 9 (8th Cir. 1996). An officer stopped a vehicle with a driver and two passengers (Walker and the defendant) at 2:00 a.m. on a relatively deserted highway. Upon finding a weapon on Walker after frisking him, the officer arrested Walker for carrying a concealed weapon. Walker was also suspected of being a drug trafficker. The officer then frisked the defendant and found a weapon. The court upheld the frisk of the defendant, noting that Walker’s arrest heightened the threat to the officer’s safety because an armed associate of Walker might use force to free him.

United States v. Baker, 78 F.3d 135 (4th Cir. 1996). An officer lawfully stopped a car that was involved in evasive driving and traffic violations with three other cars. The officer saw a triangular-shaped bulge underneath the front of the driver’s shirt, near the waistband of his pants. The officer ordered the defendant to raise his shirt so that the officer could see what was underneath it. The court ruled that, based on these facts, the officer had reasonable suspicion to frisk the driver for weapons and that the method of conducting the frisk was reasonable. The court rejected the defendant’s argument that the officer was limited to conducting a pat-down frisk.

United States v. Michelletti, 13 F.3d 838 (5th Cir. 1994) (en banc). The court ruled that a law enforcement officer had reasonable suspicion of criminal activity and that the defendant might be armed to justify frisking him when (1) the officer was on routine patrol in a high-crime area at the closing time for bars; (2) the officer saw the defendant drinking beer as he was leaving a bar, a possible alcoholic beverage offense; (3) the officer saw the defendant approach a group of people acting suspiciously outside the bar; and (4) the defendant had his right hand in his pocket at all times, leading the officer to believe that the defendant might have a gun.

United States v. Mitchell, 951 F.2d 1291 (D.C. Cir. 1991). As an officer with eighteen years’ experience approached a lawfully stopped car from the front and went around to the passenger side of the car, he saw the passenger moving both his hands inside his coat as he leaned forward. The court ruled that the officer had authority to order the passenger out of the car and to frisk him.

United States v. Hernandez, 941 F.2d 133 (2d Cir. 1991). After handcuffing a person during a security sweep of premises, officers properly searched the area near the person for weapons—in this case, between a bed’s box spring and mattress.

United States v. Cruz, 909 F.2d 422 (11th Cir. 1989). Based on the facts in this case, the court ruled that when an officer had reasonable suspicion to make an investigative stop of the defendant for drugs in an area known for heavy drug trafficking, the officer also had the right to make a limited search of the defendant’s shoulder bag for weapons. The court noted judicial recognition that individuals involved in drug trafficking are often armed.

United States v. Chaidez, 906 F.2d 377 (8th Cir. 1990). When an officer developed reasonable suspicion that the defendant was smuggling drugs in his car, he also had reasonable suspicion that the car contained weapons because guns are considered essential tools of the drug trade. See also United States v. Coleman, 969 F.2d 126 (5th Cir. 1992) (proper to search for gun in leather pouch found in car during stop); United States v. Hishaw, 235 F.3d 565 (10th Cir. 2000) (frisk proper when officer had reasonable suspicion defendant was distributing drugs); United States v. Perrin, 45 F.3d 869 (4th Cir. 1995) (similar ruling).

United States v. Flett, 806 F.2d 823 (8th Cir. 1986). Although the court rejected the rule in other federal circuits that companions of an arrestee are automatically subject to frisk, it ruled that the frisk of a companion of the arrestee was proper under the totality of circumstances in this case, even though the companion did not make a threatening move or have a bulge in his clothing. The court noted that the following facts, among others, were relevant to its determination: the companion was a member of the same motorcycle gang as the arrestee, the arrestee was charged with a drug violation, and the arrest was made in a home.

Plain-Feel or -Touch Doctrine

(This topic is discussed in the chapter text under “Discovering evidence during a frisk; plain-touch (-feel) doctrine.”)

United States Supreme Court

Minnesota v. Dickerson, 508 U.S. 366 (1993). An officer had reasonable suspicion to stop the defendant and to frisk him for weapons. During the frisk, the officer felt a lump—a small, hard object wrapped in plastic—in the defendant’s jacket pocket that he knew was not a weapon. The officer determined that the lump was cocaine only after “squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket.” Id. at 378 (quoting Minnesota Supreme Court). The officer arrested the defendant for possession of a controlled substance. The Court ruled that the plain-view doctrine applied by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. (The plain-view doctrine provides that if officers are lawfully in a position in which they can plainly view an object, if its incriminating character is immediately apparent—that is, they have probable cause to seize it—and if the officers have a lawful right of access to the object, they may seize it without a warrant.) However, the Court also ruled that the officer in this case was not justified in seizing the cocaine because the officer exceeded the search for weapons permitted by Terry v. Ohio, 392 U.S. 1 (1968). Once the officer determined that the lump was not a weapon, his continued exploration of the lump until he developed probable cause to believe it was cocaine was an additional search that was not justified by Terry. [Author’s note: Thus, the officer’s action would have been permissible in this case only if he had developed probable cause to believe that the lump was cocaine at the time he determined that the lump was not a weapon.] See also United States v. Ashley, 37 F.3d 678 (D.C. Cir. 1994) (officer felt hard object during initial pat-down; based on facts in this case, it was immediately apparent to officer that object was crack cocaine); United States v. Craft, 30 F.3d 1044 (8th Cir. 1994) (officer at airport felt hard, compact packages attached to defendant’s ankles; it was immediately apparent to officer that packages contained controlled substances).

North Carolina Court of Appeals

State v. Reid, 224 N.C. App. 181 (2012). The court ruled that a seizure of cocaine was justified under the plain-feel doctrine. While searching the defendant, the officer “felt a large bulge” in his pocket and immediately knew based on its packing that it was narcotics.

State v. Richmond, 215 N.C. App. 475 (2011). An officer was present at a location to execute a search warrant in connection with drug offenses. The court of appeals ruled that evidence supported the trial court’s finding that the officer, based on his training and experience, immediately formed the opinion during a pat-down that a bulge in the defendant’s pants contained a controlled substance. Although the officer testified that he felt a “knot” in the defendant’s pants that he could not “describe with any specificity,” the officer also testified that he had discovered similar knots before in his six years of experience and had previously discovered “[b]ags of marijuana, bags of cocaine, bags of crack.” Id. at 482 (quoting officer’s testimony).

State v. Morton, 204 N.C. App. 578 (2010). The court ruled, relying on Minnesota v. Dickerson, 508 U.S. 366 (1993), that an officer conducting a frisk of a drug suspect lawfully seized a digital scale from the suspect’s pocket because its identity was immediately apparent to the officer without having to manipulate it. [Author’s note: “Immediately apparent” means the same as probable cause.] The officer testified that scales are often used to weigh controlled substances before distribution.

State v. Briggs, 140 N.C. App. 484 (2000). Officers were conducting a driver’s license check in a high-crime area. As one officer returned the defendant’s license to him, another officer recognized the defendant as someone whom he had previously arrested for cocaine offenses. The second officer knew that the defendant was on probation and had been convicted of drug offenses more than once. Although the defendant denied that he had been drinking or taking drugs, the second officer noted that the defendant was chewing gum “real hard” and that his eyes were glassy and bloodshot. Also, this same officer smelled the odor of burned cigar tobacco inside the vehicle and on the defendant’s person. When this officer asked the defendant about the smell, the defendant stated that he did not smoke cigars but that a female who was in the vehicle earlier had been smoking a cigar. The officer knew from his experience that drug users often smoked cigars to mask the smell of illegal drugs. The defendant declined the officer’s request to search the defendant’s vehicle. The officer then required the defendant to get out of the vehicle and frisked him for weapons. The officer was aware from his experience that drug dealers frequently carry weapons. The officer testified that during the frisk, “I felt a hard, cylindrical shape in [defendant’s] pocket and it felt like a cigar holder; and I’m familiar with these because folks carry these frequently to keep their controlled substances in. It’s like a little plastic test tube with a little cap on it; and there’s really nothing else that’s shaped exactly like that.” Id. at 486–87 (quoting trial court transcript). The officer asked the defendant what that object was, and the defendant stated, “A cigar holder.” The officer said, “I thought you didn’t smoke cigars,” but the defendant did not respond. Id. at 487 (quoting transcript). The officer then removed the cigar holder from the defendant’s pocket, and when he shook it, the cigar holder “rattled like it had a number of small hard objects in it.” Id. The officer opened the cigar holder, found ten rocks of crack cocaine inside, and arrested the defendant.

The court ruled, relying on State v. Butler, 331 N.C. 227 (1992), and State v. McGuirt, 122 N.C. App. 237 (1996), aff’d, 345 N.C. 624 (1997), that the officer had reasonable suspicion to conduct the frisk based on the facts discussed above. The court also ruled that the officer had probable cause to seize the cigar holder under the plain-feel doctrine set out in Minnesota v. Dickerson, 508 U.S. 366 (1993). The court discussed cases from other jurisdictions that have split on the issue of whether the plain-feel doctrine may be satisfied when an officer feels a container the shape of which does not itself reveal its identity as contraband. Courts upholding such seizures consider factors in addition to the officer’s tactile perception to determine probable cause. Other courts declining to uphold such seizures have determined that touching the containers themselves cannot sustain a probable cause finding. The court adopted the view that it would consider the totality of circumstances in deciding whether an officer had probable cause to seize such a container when the officer felt it, and the court stated that a probable cause determination involves considering the evidence as understood by law enforcement officers. Based on the facts discussed above, the court ruled that the officer in this case had probable cause to seize the cigar holder.

State v. Pulliam, 139 N.C. App. 437 (2000). Officers were conducting a driver’s license checkpoint. A driver gave consent to a search of his vehicle. When the officer asked who his passenger was, the driver asserted that he did not know the defendant’s name. The officer recognized the defendant-passenger as a convicted drug trafficker and ordered him out of the vehicle. The defendant became belligerent, saying that the officer had no right to make him get out. The defendant smelled of alcohol, was loud and argumentative, and used profanity. When the defendant finally got out, he was unsteady on his feet and appeared to be intoxicated. When the officer saw a large bulge, one inch wide and six or seven inches long, in the defendant’s front pants pocket, he patted that place and discovered a utility razor knife.

(1) The court ruled, relying on Maryland v. Wilson, 519 U.S. 408 (1997) (officer who has made traffic stop may order passengers and driver to exit vehicle), and other cases, that the driver’s consent to search his vehicle allowed the officer to order the defendant-passenger out of the vehicle without the necessity of showing reasonable suspicion of criminal activity. (2) Based on the facts set out above, the court ruled that the officer had reasonable suspicion that the defendant was armed and dangerous to justify the frisk.

State v. Benjamin, 124 N.C. App. 734 (1996). An officer conducted a frisk of the defendant after an investigative stop for a traffic violation. As the officer was patting down the defendant, he felt two hard plastic containers in a breast pocket of the defendant’s winter jacket. Based on his narcotics training, it was immediately apparent that these containers were vials of the type customarily used to hold illegal drugs. When the officer felt the container through the jacket, he asked the defendant, “What is that?” The defendant responded that it was “crack.” The officer removed two vials from the coat pocket and found cocaine.

The court ruled that the defendant was not in custody when the officer asked him what the objects were, and therefore Miranda warnings were not required. The court noted that the fact that a defendant is not free to leave does not necessarily constitute “custody” under Miranda. Instead, the inquiry is whether a reasonable person in the defendant’s position would believe that he or she was under arrest or the functional equivalent of arrest; the court cited and discussed Stansbury v. California, 511 U.S. 318 (1994), and Berkemer v. McCarty, 468 U.S. 420 (1984). The court concluded that a reasonable person would not have believed that he or she was in custody based on these facts. The court also ruled that the seizure of the cocaine was proper under the plain-feel theory of Minnesota v. Dickerson, 508 U.S. 366 (1993). The court stated that the officer had probable cause to believe (or, to state it a different way, it became immediately apparent to the officer) that the objects were contraband based on the officer’s experience and narcotics training; the size, shape, and mass of the objects; and the defendant’s response to the officer’s question. The court also ruled that an officer may ask a suspect the nature of an object in the suspect’s pocket during a lawful frisk even after the officer has determined that the object is not a weapon.

In re Whitley, 122 N.C. App. 290 (1996). Two officers responded to a call that drug sales were occurring between two black males on a certain street. The officers saw the respondent and another person under a tree. They approached and told them that they were going to do a weapons search. During the search of the respondent, an officer noticed that his lower body and legs were tight, so he asked him to spread his legs. The officer’s hands were outside the respondent’s trousers in the bottom crotch area when an item fell from the respondent’s buttocks into his pants and onto the officer’s hand. When the officer retrieved the item from the respondent’s pants, he saw that it was a plastic bag containing a white powdered substance. The officer placed the respondent under arrest.

The court ruled (1) that there was reasonable suspicion that the respondent might be armed, dangerous, and involved in criminal activity to frisk him [Author’s note: This ruling—that there was reasonable suspicion—is now questionable in light of the later case of Florida v. J.L., 529 U.S. 266 (1999).] and (2) that the incriminating character of the object seized was immediately apparent to the officer, noting State v. Wilson, 112 N.C. App. 777 (1993), and Minnesota v. Dickerson, 508 U.S. 366 (1993). The court noted that there was no evidence that the officer improperly manipulated the object to determine if it was an illegal substance.

State v. Wilson, 112 N.C. App. 777 (1993). A police department received an anonymous phone call that several people were selling drugs in the breezeway of Building 1304 in the Hunter Oaks Apartments. The caller did not provide names or descriptions of the alleged drug dealers. Two officers familiar with the area knew that if a police car entered the parking lot at one end of the breezeway, the suspects would run out the other end. They devised a plan whereby a police car would enter the parking lot and officers would position themselves so that they could stop anyone who ran out of the back of the breezeway. An officer stopped the defendant as he ran out of the back of the breezeway and conducted a frisk. During the frisk, the officer felt a lump in the left breast pocket of the defendant’s jacket and immediately believed that it was crack cocaine. The officer then asked the defendant if his coat had an inside pocket. The defendant did not respond verbally but instead opened his jacket so that the inside pocket was visible. The officer saw and removed a small plastic bag that contained crack cocaine.

(1) Distinguishing State v. Fleming, 106 N.C. App. 165 (1992), the court ruled that the officer had authority to stop and frisk the defendant based on the anonymous phone call, the flight of the defendant and others when the police car pulled into the parking lot, and the officer’s experience that weapons were frequently involved in drug transactions. (2) Distinguishing Minnesota v. Dickerson, 508 U.S. 366 (1993), the court noted that the officer in this case—unlike the officer in Dickerson—did not need to manipulate the item in the defendant’s pocket to determine that it was cocaine; he immediately believed it was crack cocaine. The court ruled that the requirement in Dickerson that it must be “immediately apparent” to the officer that the item is illegal means that the officer must have probable cause to believe that the item is illegal. The court also ruled that the officer’s tactile senses, based on his experience and the facts in this case, gave him probable cause to believe that the item was crack cocaine. Thus, the officer did not exceed the scope of a frisk under the Dickerson ruling.

State v. Beveridge, 112 N.C. App. 688 (1993), aff’d, 336 N.C. 601 (1994). While Officer Johnson was arresting a driver for impaired driving, Officer Gregory secured the car and asked the defendant, a passenger, to get out. Officer Gregory noticed a strong odor of alcohol about the defendant, who also was acting “giddy.” The officer believed, based on the facts in this case, that the defendant was under the influence of alcohol and a controlled substance. He told the defendant that he was going to pat him down for weapons. During the pat-down, the officer noticed that there was a cylindrical-shaped, rolled-up plastic bag in the defendant’s front pocket. The officer asked him what it was, and the defendant started laughing and pulled out some money. However, the officer could still see the long cylindrical bulge in the defendant’s pocket. He again asked the defendant what it was. The defendant then stuck his hand in his pocket and tried to palm what he had. The officer asked him what he was trying to hide, and the defendant rolled open his hand and showed the officer a white plastic bag with a white powdery substance in it. The officer believed that the substance was cocaine and arrested the defendant for possession of cocaine.

The court ruled that Officer Gregory was justified in conducting a limited pat-down of the defendant to determine whether the defendant was armed, but once he concluded that there was no weapon, he could not continue to search “or question” the defendant to determine whether the bag contained illegal drugs. [Author’s note: The part of the court’s ruling in quotation marks in the preceding sentence does not appear consistent with prevailing federal constitutional law because a person is ordinarily not in “custody” under Miranda when seized during an investigative stop. See, e.g., State v. Benjamin, 124 N.C. App. 734 (1996).] The court ruled that the search exceeded the scope of the frisk under Minnesota v. Dickerson, 508 U.S. 366 (1993), because it was not immediately apparent that the item in the defendant’s pocket was an illegal substance.

State v. Whitted, 112 N.C. App. 640 (1993). A car parked in front of a residence fled at high speed after the driver saw a marked patrol car. The area from which the car fled was known for frequent drug sales, especially crack cocaine. People commonly pulled over to the curbside after being flagged down and purchased drugs. This area had been under surveillance for thirty days, and several arrests had been made based on drug sales at the residence from which the car had fled. After officers stopped the car, they went on each side of the car to investigate. The defendant was sitting in the front passenger seat, and an officer saw that the defendant kept his hand by his front pants pocket and “kept pushing something down.” The defendant did not move his hand when the officer asked him to do so, and the officer then frisked the defendant for weapons. During the frisk, the officer felt a “pebble” (that is, a hard substance) in the defendant’s pocket that he believed, based on his experience and knowledge of the circumstances, to be crack cocaine. He removed the object and discovered that it was crack cocaine.

The court ruled, based on all the circumstances in this case, including the defendant’s suspicious behavior and his high-speed flight from the officers, that the officer had probable cause to search the defendant after the officer felt the object in the defendant’s pocket. [Author’s note: Although the court did not discuss Minnesota v. Dickerson, 508 U.S. 366 (1993), its ruling is consistent with that case.]

State v. Sanders, 112 N.C. App. 477 (1993). Two State Highway Patrol officers set up a driver’s license check at a ramp off a highway. They did not post signs warning the public that a license check was being conducted. The officers checked every car that approached the checkpoint unless they were busy writing citations. The defendant entered the ramp, and as he approached the checkpoint, he stopped his car 150 feet from one of the troopers. The defendant then drove up to the checkpoint, stopped his car, and rolled down his window. In response to the trooper’s request for his driver’s license and registration, the defendant said that he did not have the registration or any identification and that he was not the owner of the car. The passenger in the car also failed to produce any identification. The trooper asked the defendant to get out of the car. As he stepped out of the car, the trooper saw a bulge about the size of two fists in the right pocket of the defendant’s jacket. The trooper then told the defendant to face the car and place his hands on it so that he could pat him down for weapons. As the defendant was following the trooper’s instructions, the trooper saw plastic protruding from his right pocket. While frisking the defendant, the trooper touched the bulge and noted that it felt like “hard flour dough.” The trooper removed the plastic bag from the defendant’s pocket. It contained three smaller bags with cocaine inside.

(1) Distinguishing Delaware v. Prouse, 440 U.S. 648 (1979), the court ruled that the stop at the license checkpoint was constitutional. The court noted that the troopers followed their agency’s guidelines in selecting the location and time for the license check and detained every car that passed through, except for those that came through while they were issuing citations. (2) Following State v. Peck, 305 N.C. 734 (1982), the court ruled that the trooper—based on the facts described above, his testimony that people driving stolen cars often provide officers with false names and insist they have no identification, and the bulge in the defendant’s pocket—had reason to believe that the defendant was armed and dangerous and therefore could lawfully frisk him. (3) The court also ruled, based on Minnesota v. Dickerson, 508 U.S. 366 (1993), that the trooper acted properly in conducting the frisk by feeling the packet in the bulge in the jacket to determine if it was a weapon. (4) The court remanded the case to the trial court to determine, in light of Dickerson (decided after this case was heard in the trial court), whether it was immediately apparent to the trooper that what he felt was illegal drugs.

Inventory

(This topic is discussed in the chapter text under “Impoundment and Inventory of Vehicles.”)

Vehicles

UNITED STATES SUPREME COURT

Florida v. Wells, 495 U.S. 1 (1990). A Florida Highway Patrol officer arrested the defendant for impaired driving, impounded his car, and conducted an inventory search—which included prying open a locked suitcase in the trunk. The Court affirmed the judgment of the Florida Supreme Court, which ruled that the inventory search was unconstitutional because the Florida Highway Patrol did not have a policy that authorized the opening of closed containers found during inventory searches. In dicta, the Court clarified Colorado v. Bertine, 479 U.S. 367 (1987), discussed immediately below, by stating that a constitutionally valid inventory policy need not require the opening of all containers found during an inventory. For example, a policy could allow officers some discretion in opening containers, such as authorizing officers to open a closed container when they are unable to determine its contents by examining its exterior.

Colorado v. Bertine, 479 U.S. 367 (1987). After an officer arrested the defendant for impaired driving, he conducted an inventory of the defendant’s van before it was towed to the police impoundment lot. The department’s standardized inventory procedure required an officer to open containers found within a vehicle and to list their contents. The officer opened a backpack located in the defendant’s van, saw a nylon bag containing metal canisters, opened the canisters, and found drugs inside. The Court upheld the inventory search because the officer followed the department’s standardized procedure and did not act in bad faith or for an investigative purpose.

South Dakota v. Opperman, 428 U.S. 364 (1976). Police lawfully impounded a car for violating a municipal parking ordinance. Using a standard inventory form and following standard police procedures, an officer inventoried the car’s contents, including the unlocked glove compartment, in which he found marijuana. The Court ruled that the inventory procedure and the scope of the inventory were reasonable under the Fourth Amendment and noted that there was no evidence that the inventory was a pretext concealing an investigatory police motive. The Court stated that an inventory procedure serves three purposes: (1) to protect officers and the public from dangerous weapons and the like, (2) to protect officers against claims or disputes over lost or stolen property, and (3) to protect the owner’s property while it remains in a law enforcement agency’s custody.

Harris v. United States, 390 U.S. 234 (1968). The defendant’s car had been seen leaving the scene of an armed robbery. The defendant was arrested as he was entering his car near his home. An officer took him to the police station and had the car towed to a police impoundment lot as evidence. Pursuant to department regulations, the officer went to the lot to search the car, placed a property tag on it, rolled up the windows, and locked the doors. While doing this, he seized evidence that he saw in plain view. The Court upheld the seizure because the Fourth Amendment allows an officer to take measures to protect a car while it is in police custody.

NORTH CAROLINA SUPREME COURT

State v. Phifer, 297 N.C. 216 (1979). A search of an arrestee’s car based on the inventory-search justification was invalid because (1) the officers had no authority under the department’s standard procedures to impound, tow, or inventory the car and (2) the officers had conducted the inventory as a pretext when the defendant was known as a drug dealer and the officers conducted the inventory search to look for contraband. See also United States v. Ibarra, 955 F.2d 1405 (10th Cir. 1992).

NORTH CAROLINA COURT OF APPEALS

State v. Peaten, 110 N.C. App. 749 (1993). Officers executed a search warrant to search a nightclub to determine if tax-paid alcoholic beverages were being illegally sold there. An executing officer decided to impound and to conduct an inventory of a BMW parked in the club’s parking lot because he believed it would have been vandalized if left there. The court ruled, relying on State v. Phifer, 297 N.C. 216 (1979), that the impoundment and inventory search were unlawful because the stated reason for the impoundment and inventory—the vehicle would be vandalized—was not a ground authorized by departmental policy. The court noted that the defendant was not present to make a disposition about the car, the car was not a hazard to traffic because it was parked in the club parking lot, and towing the car was not necessary concerning any arrest.

State v. Hall, 52 N.C. App. 492 (1981). Officers lawfully seized the defendant’s car subject to forfeiture under G.S. 90-112. A later inventory search of the car was ruled unconstitutional because the inventory procedure was a pretext: evidence showed that the officers were investigating drugs and did not appear to be conducting the inventory for the legitimate purpose of safeguarding the defendant’s property. For example, they opened a brown opaque bottle to examine the pills inside. The court’s ruling was supportable, but its alternative ruling that opening the bottle exceeded the permissible scope of the inventory search and its dicta that questioned an officer’s right to open any closed container during an inventory search must be reconsidered in light of Colorado v. Bertine, 479 U.S. 367 (1987), discussed above, and Florida v. Wells, 435 U.S.1 (1990), also discussed above.

State v. Vernon, 45 N.C. App. 486 (1980). After the defendant was arrested for a drug transaction at a motel, an officer impounded his car because he did not want to be responsible for any damage to it if it was left in a motel parking lot. The officer admitted that the impoundment was contrary to his police department’s written policy because (1) the defendant was capable of deciding what to do about his car, (2) the car did not pre­sent a traffic hazard, and (3) the car was not being seized for evidence or for any other reason relating to the drug charge. Thus, the inventory search was improper.

State v. Spruill, 33 N.C. App. 731 (1977). An officer seized a car without a warrant as evidence of a crime because the rims and tires on the car were stolen. An inventory search of the contents of the car was found to have been properly conducted pursuant to department procedure.

FEDERAL APPELLATE COURTS

United States v. Duguay, 93 F.3d 346 (7th Cir. 1996). Although a written impoundment is not required under the Fourth Amendment, the court ruled that the facts in this case showed that the law enforcement agency for which the impounding officers worked did not have a standardized impoundment procedure to guide officers as to when they could impound a vehicle. In addition, the officers failed to articulate a legitimate rationale for (1) impounding the defendant’s vehicle and (2) impounding it without regard to whether the defendant could have provided for its removal. The court ruled that this was unreasonable under the Fourth Amendment.

United States v. Hahn, 922 F.2d 243 (5th Cir. 1991). IRS agents searched an unlocked briefcase found in a vehicle without standardized inventory procedures regulating the opening of closed containers. The court ruled that the inventory search was unreasonable based on Florida v. Wells, 495 U.S. 1 (1990). See also United States v. Salmon, 944 F.2d 1106 (3d Cir. 1991) (similar ruling); United States v. Lugo, 978 F.2d 631 (10th Cir. 1992).

United States v. Mancera-Londono, 912 F.2d 373 (9th Cir. 1990). Standardized inventory procedures need not be written. See also United States v. Kordosky, 921 F.2d 722 (7th Cir. 1991) (because unwritten policy required opening containers found in vehicle, opening paper bag in trunk was proper); United States v. Walker, 931 F.2d 1066 (5th Cir. 1991).

United States v. Welling, 758 F.2d 318 (8th Cir. 1985). An inventory of a car’s trunk under standard department procedure was constitutional. See also United States v. Wilson, 758 F.2d 304 (8th Cir. 1985); United States v. Duncan, 763 F.2d 220 (6th. Cir. 1984); United States v. Penn, 233 F.3d 1111 (9th Cir. 2000).

United States v. Griffin, 729 F.2d 475 (7th Cir. 1984). An inventory of a car conducted under standard department policy properly included looking in an unlocked storage compartment within the car’s passenger area, opening a brown paper bag inside the compartment, and—when an unusual odor emanated from the bag—removing the unsecured end of a tape-wrapped package that was in the bag in order to see what was inside.

Personal Effects

UNITED STATES SUPREME COURT

Florida v. Wells, 495 U.S. 1 (1990). A Florida Highway Patrol officer arrested the defendant for impaired driving, impounded his car, and conducted an inventory search—which included prying open a locked suitcase in the trunk. The Court affirmed the judgment of the Florida Supreme Court, which ruled that the inventory search was unconstitutional because the Florida Highway Patrol did not have a policy that authorized the opening of closed containers found during inventory searches. In dicta, the Court clarified Colorado v. Bertine, 479 U.S. 367 (1987), discussed immediately below, by stating that a constitutionally valid inventory policy need not require the opening of all containers found during an inventory. For example, a policy could allow officers some discretion in opening containers, such as authorizing officers to open a closed container when they are unable to determine its contents by examining its exterior.

Colorado v. Bertine, 479 U.S. 367 (1987). After an officer arrested the defendant for impaired driving, he conducted an inventory of the defendant’s van before it was towed to the police impoundment lot. The department’s standardized inventory procedure required an officer to open containers found within a vehicle and to list their contents. The officer opened a backpack located in the defendant’s van, saw a nylon bag containing metal canisters, opened the canisters, and found drugs inside. The Court upheld the inventory search because the officer followed the department’s standardized procedure and did not act in bad faith or for an investigative purpose.

Illinois v. Lafayette, 462 U.S. 640 (1983). The defendant was arrested and taken to the police station. While he was being booked and jailed, his shoulder bag was searched, and drugs were found inside a cigarette package in the bag. The Court ruled that the routine inventory search was reasonable under the Fourth Amendment. The Court noted that an inventory deters false claims of theft, inhibits theft or careless handling of articles taken from the arrestee, and protects against dangerous instrumentalities, and thus examining all items in an arrestee’s possession is a reasonable administrative procedure. The Court rejected the argument that officers could have used a less-intrusive means of safeguarding the bag’s contents by simply locking it up in a safe place, ruling that the fact that less-intrusive means may be available does not necessarily make a full inventory unreasonable under the Fourth Amendment.

NORTH CAROLINA COURT OF APPEALS

State v. Jones, 63 N.C. App. 411 (1983). An officer was investigating an accident involving a bus and a car. He entered the bus after the bus company told him that he should not allow anyone to remove baggage without proper identification. The officer opened an untagged and unmarked briefcase lying beside the bus driver’s seat. The court ruled that the officer properly searched the briefcase to determine its owner so that he could safeguard its contents.

State v. Nesmith, 40 N.C. App. 748 (1979). A search and inspection of the contents of an arrestee’s wallet was a valid inventory search of personal possessions before the arrestee was placed in jail.

State v. Francum, 39 N.C. App. 429 (1979). An officer arrived at an accident scene as the defendant was being taken to the hospital in an ambulance. He noticed a brown paper bag lying near the defendant’s damaged car and looked inside. The search was found to be reasonable because the officer needed to secure any personal effects in the car before it was towed. The court’s statement that if the officer had found a briefcase or suitcase, he could not have examined it, is not consistent with (1) the rationale of later inventory cases, such as Illinois v. Lafayette, 462 U.S. 640 (1983), discussed above, and (2) the rejection of a worthy/unworthy-container distinction set out in United States v. Ross, 456 U.S. 798 (1982).

State v. Brandon, 18 N.C. App. 483 (1973). A defendant in the county jail asked the jailer to bring his coat from his car. The jailer unlocked the car and got the coat, searched it, and found drugs. This search was reasonable under the Fourth Amendment.

FEDERAL APPELLATE COURTS

United States v. Sumlin, 909 F.2d 1218 (8th Cir. 1990). An officer recovered the robbery victim’s purse. He opened a leather cigarette case in the purse because he believed it likely would contain a driver’s license or credit cards. The court ruled that the officer’s actions were reasonable under the circumstances because the officer was seeking identification and recovering stolen property.

United States v. Khoury, 901 F.2d 948 (11th Cir. 1990). During an inventory search of the contents of a briefcase found in a car’s trunk, an officer properly flipped through a notebook to determine if it contained items of value; the officer determined that it did not. However, the officer exceeded the scope of an inventory when he then inspected the notebook further.

United States v. Trullo, 790 F.2d 205 (1st Cir. 1986). The defendant was arrested, and during an inventory search of the defendant’s car at the station house, an officer picked up an oil can that, by its light weight, indicated to him that it did not contain oil. On discovering that the top pulled out, the officer removed the top and found cocaine. The court noted that an easily opened can could have contained paper currency and ruled that if a container may be searched for an inventory purpose, a court should not inquire about an officer’s subjective thoughts (that is, the officer’s expecting to find drugs).

Entering Premises for Public-Safety Reasons

(This topic is discussed in the chapter text under “Entry or Search of a Home to Render Emergency Assistance or for Self-Protection.”)

UNITED STATES SUPREME COURT

Ryburn v. Huff, 565 U.S. 469 (2012). The United States Supreme Court reversed a federal appellate court ruling that officers were not entitled to qualified immunity in a Section 1983 federal civil rights action that arose after the officers entered a home without a warrant. When officers responded to a call from a high school, the principal informed them that a student, Vincent Huff, was rumored to have written a letter threatening to “shoot up” the school. The officers learned that Vincent had been absent two days, that he was a victim of bullying, and that a classmate believed him to be capable of carrying out the alleged threat. Officers found these facts troubling in light of training suggesting that these characteristics are common among perpetrators of school shootings. When the officers went to Vincent’s home and knocked at the door, no one answered. They then called the home phone, and again no one answered. When they called Vincent’s mother’s cell phone, she reported that she and Vincent were inside. Vincent and Mrs. Huff then came outside to talk with the officers. Mrs. Huff declined an officer’s request to continue the discussion inside. When an officer asked Mrs. Huff if there were any guns in the house, she immediately turned around and ran inside. The officers followed and eventually determined the threat to be unfounded. The Huffs filed a Section 1983 action against the officers for violating their Fourth Amendment rights by entering their home without a search warrant. The federal district court ruled for the officers, concluding that they were entitled to qualified immunity because Mrs. Huff’s odd behavior, combined with the information that the officers gathered at the school, could have led reasonable officers to believe that there could be weapons inside the house and that family members or the officers themselves were in danger. A divided panel of a federal appellate court disagreed with the conclusion that the officers were entitled to qualified immunity. The United States Supreme Court reversed, determining that reasonable officers could have come to the conclusion that the Fourth Amendment permitted them to enter the residence if there was an objectively reasonable basis to fear that violence was imminent. It further determined that a reasonable officer could have come to such a conclusion based on the facts as found by the trial court.

Michigan v. Fisher, 558 U.S. 45 (2009). Officers responded to a disturbance call. A couple directed them to a house where a man was “going crazy.” Officers saw a pickup truck in the driveway with its front smashed; damaged fence posts along the side of the property; and three broken windows, the glass still on the ground outside. The officers also saw blood on the pickup’s hood and on clothes inside the pickup, as well as on one of the doors to the house. Through a window to the house, they could see the defendant screaming and throwing things. The back door was locked, and a couch had been placed to block the front door. The officers knocked, but the defendant refused to answer. They saw that he had a cut on his hand, and they asked him whether he needed medical attention. The defendant ignored these questions and demanded, with accompanying profanity, that the officers get a search warrant. One of the officers pushed the front door and entered the house. The Court ruled that a straightforward application of the emergency-aid exception, as in Brigham City v. Stuart, 547 U.S. 398 (2006) (law enforcement officers may enter a home without a search warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury), dictated that the officer’s entry into the house was reasonable under the Fourth Amendment. The Court stated that the state appellate court in this case had erred in replacing Brigham City’s objective inquiry into what the situation appeared like to the officers with its hindsight determination that there was in fact no emergency:

“It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. . . . It sufficed to invoke the emergency aid exception that it was reasonable to believe that [the defendant] had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that [the defendant] was about to hurt, or had already hurt, someone else.” Fisher, 558 U.S. at 49.

Brigham City v. Stuart, 547 U.S. 398 (2006). At about 3:00 a.m., four law enforcement officers responded to a call concerning a loud party at a residence. They heard shouting from inside and entered the driveway to investigate. They saw two juveniles drinking beer in the backyard. The officers entered the backyard and saw—through a screen door and windows—four adults attempting with some difficulty to restrain a juvenile. The juvenile eventually broke free, swung a fist, and struck one of the adults in the face. One of the officers saw the victim of the blow spitting blood into a nearby sink. The other adults continued to attempt to restrain the juvenile, pressing him against a refrigerator with such force that the refrigerator began moving across the floor. An officer opened the screen door and announced the officers’ presence. Amid the tumult, nobody noticed the officer. The officer entered the kitchen and again spoke, and as the occupants slowly became aware that the officers were there, the altercation stopped.

The Court ruled that law enforcement officers may enter a home without a search warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. The Court found that the officers’ entry in this case was reasonable under the Fourth Amendment. The officers had an objectively reasonable basis for believing that the injured adult might need help and that the violence in the kitchen was just beginning. Also, the manner of the officers’ entry was reasonable. Once they made an announcement, they were free to enter. They were not required to await a response while those within fought, oblivious to their presence. The Court, relying on its prior Fourth Amendment cases, rejected an inquiry into the officers’ subjective motivation in entering the residence. An action is reasonable under the Fourth Amendment, regardless of an officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. It did not matter whether the officers entered the kitchen to make an arrest and gather evidence against those inside or to assist injured persons and prevent further violence. The circumstances, viewed objectively, supported the entry based on a belief that an occupant was seriously injured or imminently threatened with such injury.

NORTH CAROLINA SUPREME COURT

State v. McKinney, 361 N.C. 53 (2006). The defendant was convicted of first-degree murder. Amy advised law enforcement that her roommate, Aja, had told her that Aja’s friend, the defendant, had killed his roommate. The address of the residence where the defendant and victim apparently lived was supplied to law enforcement. Officers arrived at the residence and were advised that the defendant was reportedly driving the victim’s vehicle, which was not in the driveway. The victim’s sister arrived and informed officers that the victim lived there. The victim’s brother arrived shortly thereafter. Officers learned that neither the brother nor the sister had had any contact with the victim in several days and that the victim had not reported for work the prior day, which was very unusual. The officers also learned that the defendant had told Aja that the victim had pulled a knife on the defendant and that the victim “wouldn’t be coming back.” The victim’s brother then entered the house through a window and officers followed him. The officers saw what appeared to be blood spatter in the front bedroom and other indications of blood elsewhere in the house; they secured the house, obtained a search warrant, and thereafter discovered the victim’s body in a large garbage can in the house.

(1) The court ruled that the officers did not have exigent circumstances to enter the house without a search warrant to look for the possible missing victim. (2) The court remanded to the trial court for a determination of whether the defendant had a reasonable expectation of privacy in the house to contest the officers’ entry into the house (had the defendant permanently abandoned the house?). (3) The court remanded to the trial court for a determination of whether the independent-source exception to the Fourth Amendment’s exclusionary rule (Murray v. United States, 487 U.S. 533 (1988)) would support finding probable cause for the search warrant if illegally obtained information (the apparent blood spatter and other indications of blood in the house) that had been included in search warrant’s affidavit were to have been excluded from it.

NORTH CAROLINA COURT OF APPEALS

State v. Huddy, 253 N.C. App. 148 (2017). The court ruled that an officer violated the defendant’s Fourth Amendment rights by searching the curtilage of the defendant’s home without a warrant. The officer saw a vehicle with its doors open at the back of a 150-yard driveway leading to the defendant’s home. Concerned that the vehicle might be part of a break-in or home invasion, the officer drove down the driveway, ran the vehicle’s tags, checked the windows and doors of the home for signs of forced entry, “cleared” the sides of the house, and then went through a closed gate in a chain-link fence enclosing the home’s backyard and approached the storm door at the back of the house. As the officer approached the door, which was not visible from the street, he smelled marijuana, which led to the defendant’s arrest for drug charges. The court determined that this was not a knock and talk because the officer went to a rear door not visible from the street and located behind a closed gate. Likewise, the community-caretaking doctrine (which permits law enforcement to take action in certain situations to protect the public even when they lack the suspicion required by the constitution to do so) did not support the officer’s actions because a vehicle’s doors may stand ajar for many reasons that are not suspicious. The court pointed out that the presence of a vehicle in a person’s driveway with its doors open was not the type of emergency that justified the community-caretaker exception to the warrant requirement. The court also noted that because the protections granted under the Fourth Amendment are considered to be at their strongest within a person’s home, the public need justifying the community-caretaking exception “must be particularly strong to justify a warrantless search of a home.” Id. at 154.

State v. Cline, 205 N.C. App. 696 (2010). The court ruled that exigent circumstances existed for an officer to make a warrantless entry into the defendant’s home to ascertain whether someone inside was in need of immediate assistance or under threat of serious injury. The officer was summoned after motorists discovered a young, naked, unattended toddler on the side of a major highway. The officer was able to determine with reasonable certainty that the child was the defendant’s son and that the defendant resided at the premises in question. When the officer knocked and banged on the front door of the premises, he received no response. The officer found the back door ajar. The court concluded that an immediate warrantless entry was necessary to ascertain whether someone in the home needed immediate assistance or was under the threat of serious injury. It would have taken the officer approximately two hours to get a search warrant for the premises.

Protection of the Public from Dangerous Weapons: The Community-Caretaking Function

(This topic is discussed in the chapter text under “The Community-Caretaking Function.”)

UNITED STATES SUPREME COURT

Caniglia v. North Strom, 593 U.S. 194 (2021). During an argument with his wife in the home they shared, the defendant placed a handgun on the dining room table and asked his wife to shoot him and “get it over with.” His wife instead left the home and spent the night at a hotel. The next morning, she was unable to contact her husband by phone, so she called law enforcement to request a welfare check. Officers accompanied her to the home, where they encountered the defendant on the porch. The officers called an ambulance in the belief that the defendant posed a risk to himself or others. The defendant agreed to go to the hospital for a psychiatric evaluation on the condition that the officers would not confiscate his firearms. But once the defendant left, the officers entered his home and seized the firearms without a warrant.

The Court noted that Cady v. Dombrowski, 413 U.S. 433 (1973), summarized immediately below, had made an “unmistakable distinction between vehicles and homes” and that the Court had repeatedly refused to expand the scope of exceptions to the warrant requirement involving searches and seizures in homes. Id. at 199. Finding that a lower federal court’s ruling upholding the officer’s actions under Cady’s community-caretaking exception to the warrant requirement went beyond anything the Court had recognized, the Court unanimously reversed the ruling and remanded the case for further proceedings. Four Justices in various concurring opinions (1) noted that the Court’s opinion was not contrary to the exigent-circumstances doctrine (Chief Justice Roberts and Justice Breyer), (2) noted that the Court had not settled difficult questions about the parameters of all searches and seizures conducted for non-law-enforcement purposes (Justice Alito), and (3) elaborated on the applicability of the exigent-circumstances doctrine when officers enter homes without warrants to assist people in need of aid (Justice Kavanaugh).

Cady v. Dombrowski, 413 U.S. 433 (1973). The defendant, a Chicago police officer, was involved in a one-car accident in another state while off duty. His car was disabled, and it was towed and stored at a private lot. While the defendant was hospitalized and formally arrested for drunken driving, an officer searched the car for the defendant’s weapon, believing that Chicago police officers were required to carry a weapon at all times. The officer’s effort to find the revolver was standard department procedure to protect the public from the possibility that an unauthorized person might remove the weapon. The Court ruled that the officer’s warrantless search throughout the car’s interior and locked trunk to find the weapon was reasonable under the Fourth Amendment to protect the public safety because the officer was properly performing a community-caretaking function. See also United States v. Lugo, 978 F.2d 631 (10th Cir. 1992) (search in interior of door panel exceeded community-caretaking justification).

FEDERAL APPELLATE COURTS

United States v. York, 895 F.2d 1026 (5th Cir. 1990). An officer’s entry into the defendant’s home to enable live-in guests to remove themselves and their possessions, after the defendant had become intoxicated and threatened them was a proper community-caretaking function. (Although the court ruled that no search occurred, the more appropriate analysis is that the officer’s action was a reasonable search under the Fourth Amendment.)

Wilkinson v. Forst, 832 F.2d 1330 (2d Cir. 1987). The court ruled that, based on prior experiences of officers finding weapons at Ku Klux Klan rallies in Connecticut, general magnetometer screening could be conducted at future Ku Klux Klan rallies to screen people or packages without reasonable suspicion or probable cause that weapons may be found. The court also ruled that a frisk could be conducted when the magnetometer indicated the presence of metal and the situation could not be resolved by using only the magnetometer. However, the court ruled that mass pat-down searches that had been conducted at prior Ku Klux Klan rallies without reasonable suspicion or probable cause had violated the Fourth Amendment. The court noted that more-intrusive measures than magnetometer screening might be justified by future events. For a later ruling in this case, see Wilkinson v. Forst, 717 F. Supp. 49 (D. Conn. 1989).

Search of a Crime Scene

(This topic is discussed in the chapter text under “Search of a Crime Scene.”)

UNITED STATES SUPREME COURT

Flippo v. West Virginia, 528 U.S. 11 (1999). The defendant was tried and convicted of the murder of his wife. The defendant and his wife were vacationing at a cabin in a state park. The defendant called 911 to report that he and his wife had been attacked. Officers arrived and found the defendant, who had bodily injuries, outside the cabin. After questioning the defendant, the officers entered the cabin and found his wife with fatal head wounds. They closed off the area, took the defendant to the hospital, and searched the exterior and environs of the cabin for footprints or signs of forced entry. When a police photo­grapher later arrived, the officers reentered the cabin without a search warrant and processed the crime scene for more than sixteen hours. During this prolonged search, the officers found photographs in a briefcase in the cabin that were introduced into evidence against the defendant. The trial judge upheld the warrantless search because it was a “homicide crime scene.” The Court ruled that the trial judge’s ruling was inconsistent with Mincey v. Arizona, 437 U.S. 385 (1978), which rejected a “homicide scene exception” to the Warrant Clause of the Fourth Amendment. The Court specifically did not decide other possible Fourth Amendment justifications, such as a consent search.

Thompson v. Louisiana, 469 U.S. 17 (1984). A warrantless search of a homicide defendant’s home thirty-five minutes after she was taken from her home and transported to the hospital was ruled unconstitutional. Investigating officers who initially arrived at the homicide scene already had searched the home for other victims and suspects. The later warrantless search was simply an exploratory search for evidence and was not justified by exigent circumstances.

Mincey v. Arizona, 437 U.S. 385 (1978). The Court rejected a “murder scene exception” to the Fourth Amendment’s requirement that a search warrant is generally necessary to search a house. It ruled that a four-day warrantless search of an apartment where a homicide took place was unconstitutional when there were no exigent circumstances. The Court recognized an officer’s authority to (1) enter and search without a warrant when the officer reasonably believes that a person within a home needs immediate aid and (2) make a prompt warrantless search of a house to determine whether there are other victims or suspects on the premises.

NORTH CAROLINA SUPREME COURT

State v. Scott, 343 N.C. 313 (1996). An officer, responding to a report of a missing person, went to the defendant’s home, where the missing person lived. Two vehicles were in the driveway, but no one responded to the officer’s knock on the front door. The officer noticed large green flies flying under the house through an air vent. He had previously seen these kind of flies on dead animals and people. He then went to the rear of the house, where he saw the flies at the access door to the crawl space under the house, smelled the odor of decaying flesh, and saw a green carpet lying against the access door. When he moved the carpet, he saw that the grass under it was green, indicating that it had been placed there recently. He then opened the access door, shined his flashlight in the crawl space, and saw the body of a dead female there. After a warrantless search of the home for other possible victims or suspects, a search warrant was obtained, and a thorough search of the home was made pursuant to the search warrant. The defendant argued that the warrantless search of the crawl space and home was unconstitutional. The court ruled, citing Mincey v. Arizona, 437 U.S. 385 (1978), that the warrantless search of the crawl space and the home was reasonable under the Fourth Amendment.

State v. Jolley, 312 N.C. 296 (1984). In a case decided before Thompson v. Louisiana, 469 U.S. 17 (1984), discussed above, the court ruled that an officer seized a rifle he saw in plain view in a home that he had entered in response to a homicide, even though he did not then physically take possession of the rifle. After removing the emotionally upset defendant and securing the area, the officer and another officer reentered the home about ten minutes later and took possession of the rifle. The court ruled that the warrantless reentry was permissible because the officer had constructively seized the rifle when he secured the crime scene earlier. [Author’s note: It is unclear whether this warrantless reentry and seizure is consistent with Thompson. See also State v. Phillips, 151 N.C. App. 185 (2002) (similar ruling).]

NORTH CAROLINA COURT OF APPEALS

State v. Jordan, 242 N.C. App. 464 (2015). The court ruled that the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of a warrantless search of her residence. According to the court: “The trial court’s findings that the officers observed a broken window, that the front door was unlocked, and that no one responded when the officers knocked on the door are insufficient to show that they had an objectively reasonable belief that a breaking and entering had recently taken place or was still in progress, such that there existed an urgent need to enter the property” or that the search was justified under the exigent circumstances exception to the warrant requirement. Id. at 465. The appellate court continued:

In this case, the only circumstances justifying the officers’ entry into defendant’s residence were a broken window, an unlocked door, and the lack of response to the officers’ knock at the door. We hold that although these findings may be sufficient to give the officers a reasonable belief that an illegal entry had occurred at some point, they are insufficient to give the officers an objectively reasonable belief that a breaking and entering was in progress or had occurred recently. Id. at 473–74.

State v. Woods, 136 N.C. App. 386 (2000). Officers were dispatched to investigate an alarm sounding at the defendant’s residence. After arriving at the residence, an officer heard the alarm and saw that the rear door of the residence was open. After announcing his presence and identity, he heard no response from inside the residence. The officer conducted a cursory search of the residence for potential victims or suspects. He found no one but saw evidence of a break-in. He and other officers reentered the residence to conduct a more-thorough search, looking again for victims and suspects. In the master bedroom, they opened a drawer in a standing chest that was about fifteen to twenty inches deep, twenty-five to thirty inches long, and eighteen inches wide; they discovered a bag of green vegetable material and then radioed drug officers to come to the scene. In the area containing the kitchen and living room, they saw a cabinet that was about thirty-four inches tall and forty-eight inches wide. While attempting to open the doors to the cabinet, an officer moved a chair and heard a noise underneath it. His flashlight revealed a tear on the bottom of the chair and a bag inside that appeared to contain money. He opened the cabinet door but found nothing. Officers later obtained a search warrant and discovered various drugs, money, and drug paraphernalia.

Relying on United States v. Dart, 747 F.2d 263 (4th Cir. 1984), and other cases, the court ruled that the officers’ warrantless entry into the residence to investigate a possible break-in was justified by exigent circumstances and thus was reasonable under the Fourth Amendment. It was clear that a break-in had occurred, and the officers had reason to believe that the intruders or victims could still be in the residence. The court also ruled, relying on Mincey v. Arizona, 437 U.S. 385 (1978), that the officers’ search of the chest of drawers, chair, and cabinet exceeded the scope of the permissible search for suspects and victims. Based on the facts in this case, it was unreasonable to believe that a small child could have been found in the cabinet. Because the fruits of the illegal searches established probable cause for the search warrant, the evidence seized was inadmissible at trial.

State v. Williams, 116 N.C. App. 225 (1994). Officers responded to an emergency call directing them to the defendant’s residence. They found the defendant pacing in the front yard and another male person lying wounded in the doorway of the residence. The defendant told the officers that a man had shot his wife and was fleeing through the woods. The officers radioed for emergency personnel and then entered the residence to check for other victims or suspects. They found the defendant’s wife lying dead on a couch in the den, with a gunshot wound above her left ear. They conducted a sweep of the residence. They found a pistol near the kitchen and ammunition casings and a white, rock-like substance on a stereo in the den. Having conducted this initial thirty-second sweep, the officers then left the house and secured it against intruders. No one was allowed to enter the residence until investigators arrived fifteen minutes after the first officers had arrived. The investigators entered the house without consent or a search warrant and continued to search the premises. Distinguishing Thompson v. Louisiana, 469 U.S. 17 (1984), the court ruled that the search by the investigators was constitutional. Here, the investigators arrived shortly after the initial thirty-second sweep by the first responding officers. Responding to the ongoing emergency, the investigators conducted a more-complete search of the premises that could have revealed additional victims or hiding suspects. In Thompson, the investigators arrived thirty-five minutes after the first officers on the scene had already searched the home, secured the scene, and sent the defendant to the hospital for medical treatment. The court stated that if it ruled that the search in this case was unconstitutional, it would mean that “once any law enforcement officer makes an initial sweep through a home no matter how hurried or brief it may be, no other officers may search the home until a search warrant is obtained. Such a rule ignores the fact that the first responding officers making a quick initial search of a home may overlook a victim or suspect located in less obvious places.” Williams, 116 N.C. App. at 230. [Author’s note: Although the warrantless search by the investigators in this case may have been consistent with the Fourth Amendment, law enforcement officers should consider obtaining a search warrant or consent to search before conducting a similar search.]

Search of a Fire Scene

(This topic is discussed in the chapter text under “Search of a Fire Scene.”)

UNITED STATES SUPREME COURT

Michigan v. Clifford, 464 U.S. 287 (1984) (Four-Justice opinion announcing the Court’s judgment, but the opinion states current law.) A residential fire occurred at about 5:00 a.m. Fire officers arrived, extinguished the fire, and left the scene at about 7:00 a.m. At 1:30 p.m. that same day, fire officials entered the house without a warrant to investigate the cause of the fire. They found evidence of arson in the basement and then searched the rest of the house, where they found that most valuables apparently had been removed before the fire began. Although the home was uninhabitable after the fire, the Court ruled that because personal belongings remained and the defendant had arranged after the fire to have his house secured, he retained a sufficient Fourth Amendment privacy interest in his home to require that post-fire investigations be conducted with a warrant, absent exigent circumstances. This case differed from Michigan v. Tyler, 436 U.S. 499 (1978), discussed immediately below, because the investigator’s entry at 1:30 p.m. was not a continuation of an earlier entry. An administrative warrant or consent was necessary to reenter the house in this case. (However, five Justices expressed the view that if advance notice to the owner had been given or if a reasonable attempt to do so had been made, the search could have been conducted without a warrant.) Once evidence of arson was found in the basement, a search warrant was required to search the rest of the house. The Court excluded all evidence found during these unconstitutional searches but ruled admissible a fuel can that fire personnel saw in the basement when they were fighting the fire and placed in the driveway of the residence.

Michigan v. Tyler, 436 U.S. 499 (1978). Fire officers properly entered a burning furniture store without a warrant to fight a fire and properly remained there for a reasonable time after the fire was extinguished to investigate its cause, to prevent its recurrence, and to preserve property from intentional or accidental destruction. They left at 4:00 a.m. after the fire had been extinguished. A warrantless reentry at 8:00 a.m. was justified in this case because the investigation of the fire’s cause had been hindered by smoke and darkness, and the reentry was merely a continuation of a legitimate determination of the fire’s cause. However, warrantless reentries at 9 a.m. that same day and weeks later were unconstitutional because there were no longer exigent circumstances that excused obtaining a warrant. These additional entries to investigate the cause of the fire required administrative inspection warrants. If probable cause exists to search for evidence of a crime, such as arson, a search warrant must be obtained. See also United States v. Martin, 781 F.2d 671 (9th Cir. 1985) (second warrantless entry and search was permissible to look for injured persons and source of fire and explosion in an apartment); United States v. Loos, 165 F.3d 504 (7th Cir. 1998) (drug agent’s gathering of evidence from fire caused by illegal methamphetamine lab while firefighters stood by to prevent smoldering ashes from rekindling did not violate ruling in Tyler).

NORTH CAROLINA COURT OF APPEALS

State v. Langley, 64 N.C. App. 674 (1983). The court ruled that a fire marshal who was investigating the cause and origin of a fire properly conducted a warrantless search for accelerants on fire-damaged premises (it is unclear from the opinion when the search was conducted).

FEDERAL APPELLATE COURTS

United States v. Boettger, 71 F.3d 1410 (8th Cir. 1995). An explosion occurred in an apartment. Exigent circumstances existed because of a continuing danger to public safety presented by explosive chemicals and destructive devices found in the defendant’s apartment and thus justified warrantless entries into the apartment over a period of one and one-half days to determine the cause of the explosion and to prevent another explosion.

Collective Knowledge of Officers

(See discussion of this topic in Chapter 2 and summaries of other cases on this topic in the appendix to Chapter 2.)

NORTH CAROLINA COURT OF APPEALS

State v. Bowman, 193 N.C. App. 104 (2008). A team of officers was positioned near a bank where they had probable cause to believe that one person was about to make a drug sale to another person. The seller arrived at the bank in a Pontiac and left the vehicle to make the drug sale. The Pontiac’s driver, the defendant, remained in the vehicle. Deputy Putnam confronted the seller and seized 100 Oxycodone pills. Sheriff Johnson radioed other officers to block the Pontiac from leaving the bank’s parking lot. Officer Williams searched the vehicle even though he was not specifically instructed to do so. Although some of the officers testified at the suppression hearing, the searching officer (Williams) and the officer who had ordered the Pontiac to be blocked (Johnson) did not. The court ruled that the collective knowledge of the officers investigating the drug sale, which had established probable cause to search the vehicle, was imputed to the officer who searched the vehicle. The fact that some officers did not testify at the suppression hearing did not bar application of the collective-knowledge theory.

Motions to Suppress, Suppression Hearings, and Exclusionary Rules

(See Chapter 4 for cases on this topic.)