Search and Seizure--warrant for premises--search of individual--probable cause
Even though police officers had a warrant to search a mobile home and all outbuildings
at the residence for crack cocaine and other controlled substances, the trial court violated
defendant's Fourth Amendment right to be free from an unreasonable search and seizure by
failing to suppress a rock of crack cocaine and the crack pipes obtained from defendant's jacket
because: (1) probable cause exists from the fact that a search pursuant to the warrant failed to
yield the items sought and that the defendant found on the premises could have concealed those
items on his person; (2) probable cause does not arise from defendant's mere presence on the
premises; and (3) the officers' search in the instant case yielded the exact object of the officers'
investigation, crack cocaine, which meant the officers' statutory authority under N.C.G.S. §
15A-256 to search defendant ceased to exist.
Attorney General Michael F. Easley, by Associate Attorney
General C. Ruffin Poole, for the State.
Allen W. Boyer for the defendant.
EAGLES, Chief Judge.
This case presents the issue of whether under G.S. § 15A-256
(1999) the State may properly search an individual not named in the
search warrant but found on premises named therein that he neither
owns nor controls.
Defendant was convicted for possession of cocaine and drug
paraphernalia. The State's evidence showed that on 11 November 1997
Officer Keith Caviness of the Charlotte-Mecklenburg Police
Department and a paid informant went to 5516 Cross Street to make
a controlled drug buy. Shortly after their arrival, a white malecame out of a mobile home on the premises and immediately walked to
the left toward an old shack adjacent to the mobile home. After a
brief period, the white male approached the vehicle and handed
crack cocaine to the informant. After examining the drugs, the
officer and informant made the purchase.
Officer Caviness left the scene and obtained a search warrant
for the premises from a Mecklenburg County Magistrate. Though the
search warrant is not in the record before us, testimony from
officers established that the search warrant authorized officers to
search the mobile home and all outbuildings at 5516 Cross Street
for crack cocaine and other controlled substances. Additionally,
the warrant explicitly provided the officers with the right to
search the white male who sold crack cocaine to the informant. The
warrant described him as a white male, twenty to twenty-five years
old, six foot one inches tall, weighing approximately one hundred
fifty to one hundred sixty pounds and having dark hair and
mustache. Officer Caviness testified that the defendant was not the
same individual that had earlier sold them the crack cocaine and
that the defendant did not match the description in the search
warrant.
Several hours after the controlled buy, Caviness and other
officers served the search warrant at 5516 Cross Street. Upon
entry, Officer Caviness testified that they found six or seven
people in the mobile home. Caviness found the defendant in the
living room area and immediately “assisted” him to the floor. While
on the floor, Caviness handcuffed the defendant. The defendantremained on the floor while police “secured” the mobile home. The
trial court found that “the defendant was not immediately
searched.” After the police “secured” the mobile home, Officer
Caviness searched the defendant. Caviness found one rock of crack
cocaine and three crack pipes in defendant's right front jacket
pocket. Additionally, police searched the mobile home and the
outside buildings. The police found drug paraphernalia inside the
residence and found crack cocaine in a “shack” adjacent to the
residence.
Prior to trial, defendant moved to suppress the rock of crack
cocaine and the crack pipes the police obtained from his jacket.
After a pretrial hearing, the court denied the motion. The trial
court made findings of fact and concluded that the search of
defendant's person was “without constitutional violation.”
Defendant appeals and claims that the search violated his Fourth
Amendment rights to be free from an unreasonable search and
seizure. We agree.
The Fourth Amendment to the United States Constitution and
Article I of the North Carolina Constitution protect individuals
against unreasonable searches and seizures. U.S. Const. Amend.
IV, N.C. Const. Art. I, § 20. The U.S. Supreme Court in Ybarra v.
Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d 238, 245 (1979) stated that
“a person's mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable
cause to search that person.” In Ybarra, the Court held that a
warrant authorizing officers to search a tavern did not entitle theofficers to search every individual found on the premises. Rather,
the Fourth Amendment requires that officers have probable cause
particularized to an individual prior to searching that individual.
Id. Since the officers in Ybarra did not have probable cause
particularized to the defendant, the Court held that the search
violated the Fourth Amendment. Id. at 96, 62 L. Ed. 2d at 248.
Here, State argues that notwithstanding Ybarra, G.S. 15A-256
justifies Officer Caviness' search of defendant's person. This
Court has stated that a search conducted pursuant to G.S. § 15A-256
complies with the requirements of probable cause and does not
conflict with the U.S. Supreme Court's ruling in Ybarra. State v.
Brooks, 51 N.C. App. 90, 96, 275 S.E.2d 202, 206 (1981). G.S.
15A-256 states:
An officer executing a warrant directing a
search of premises not generally open to the
public or of a vehicle other than a common
carrier may detain any person present for such
time as is reasonably necessary to execute the
warrant. If the search of such premises or
vehicle and of any persons designated as
objects of the search in the warrant fails to
produce the items named in the warrant, the
officer may then search any person present at
the time of the officer's entry to the extent
reasonably necessary to find property
particularly described in the warrant which
may be concealed upon the person, but no
property of a different type from that
particularly described in the warrant may be
seized or may be the basis for prosecution of
any person so searched. For the purpose of
this section all controlled substances are the
same type of property. (Emphasis added).
The State contends that we should consider the “shack” and
mobile home as separate units under G.S. § 15A-256. According to
the State, the warrant focused on the mobile home and not theoutbuildings. Therefore, it contends that the only relevant area
for purposes of G.S. § 15A-256 was the mobile home. The State
asserts that the officers' discovery of crack cocaine in the
outbuilding is of no consequence although the warrant specifically
allowed the police to search those structures. Since police failed
to find crack cocaine in the mobile home, the State claims that
G.S. § 15A-256 authorized the officers to search the defendant.
In enacting G.S. § 15A-256, the General Assembly intended to
authorize the search of an individual who is not in control of the
designated premises but is found there when a search warrant is
executed, only after a search of the premises did not reveal the
items sought in the search warrant. The State's argument here would
allow officers to search the adjacent outbuildings pursuant to the
search warrant but not consider evidence found in those buildings
in order to justify the search of an unnamed individual under G.S.
§ 15A-256. We find the State's argument unpersuasive.
G.S. § 15A-256 does not distinguish between different units on
premises. Indeed, our cases have uniformly allowed searches of
outbuildings within the curtilage under authority of a search
warrant for the premises address. State v. Travatello, 24 N.C. App.
511, 211 S.E.2d 467 (1975) (tool shed); State v. Trapper, 48 N.C.
App. 481, 269 S.E.2d 680 (1980) (shed); State v. Courtright, 60
N.C. App. 247, 298 S.E.2d 740, disc. review denied, 308 N.C. 192,
302 S.E.2d 245 (1983)(parked car within curtilage). This Court has
stated that “ the premises of a dwelling house include, for search
and seizure purposes, the area within the curtilage and a searchpursuant to a warrant describing a dwelling does not exceed its
lawful scope when outbuildings or vehicles located within the
curtilage are also searched.” Courtright, 60 N.C. App. at 249, 298
S.E.2d at 742 (citations omitted). To follow the State's argument
here would require us to overrule those cases authorizing search of
buildings within the curtilage. So long as probable cause exists to
search the buildings within the curtilage, then those buildings
must be included within the term “premises” under G.S. § 15A-256.
This is especially true here where the warrant explicitly
authorized the search of the outbuildings. Accordingly, we now hold
that the outbuildings were included within the premises authorized
to be searched pursuant to the search warrant.
The State's argument, followed to its logical conclusion,
would arguably render G.S. § 15A-256 unconstitutional. In Brooks,
51 N.C. App. at 96, 275 S.E.2d at 206, this Court stated:
Probable cause “particularized” to those
present on the premises being searched can be
clearly inferred from the circumstances under
which the limited search pursuant to G.S. §
15A-256 is authorized: Police officers have
reason to believe that criminal activity has
been or is occurring on the premises, the
search pursuant to the warrant fails to
uncover any evidence of such activity and such
evidence of the criminal activity could be
concealed upon the person of those present at
the time of the officer's entry.
Therefore, probable cause exists from the fact that a search
pursuant to a search warrant failed to yield the items sought and
that the defendant found on the premises could have concealed those
items on his person. Probable cause does not arise from defendant's
mere presence on the premises. The State's reading of the statutewould eliminate the requirement that “the search pursuant to the
warrant fails to uncover evidence of such activity.” Id. Without
this statutory requirement, G.S. § 15A-256 would entitle officers
to search individuals merely because they were found on the
premises. The U.S. Supreme Court has already held that proposition
unconstitutional. See Ybarra, 444 U.S. at 91, 62 L.Ed.2d at 245.
Officer Caviness testified that the warrant named crack
cocaine as the object of the search. Additionally, the search
warrant allowed officers to search the adjacent “shack” as well as
the mobile home described. Upon searching the shack, officers
discovered crack cocaine. G.S. § 15A-256 justifies the search of an
individual found on the premises only when a search pursuant to a
search warrant does not produce the items described in the warrant.
Here, the officers' search yielded the exact object of the
officers' investigation, crack cocaine. After the officers
discovered cocaine in the “shack,” their statutory authority to
search the defendant ceased to exist. Accordingly, we hold that
G.S. § 15A-256 is inapplicable and does not justify the officers'
search of the defendant.
In its order, the trial court concluded as a matter of law
1. That the Police Officers entered the
residence located at 6516 Cross Street
pursuant to a lawful Search Warrant and the
entry into the premises was lawful and based
on the common law as outlined in the case of
[State v. Brooks 51 N.C.App. 90] search of a
person found in or upon the premises pursuant
to the execution of a valid search warrant is
proper.
Brooks is distinguishable. In Brooks, the warrant gave the officers
the right to search the premises for “ready to sell” hashish.
Brooks, 51 N.C.App. at 92, 275 S.E.2d at 203. Upon conducting the
search, the officers found no hashish that was ready for immediate
sale, though they found hashish not yet ready to sell. Id. The
officers then searched the defendant and found an envelope of
hashish. Id. The Brooks Court sustained the search based on G.S. §
15A-256, reasoning that the officers' search of the premises did
not disclose the intended items, namely “ready to sell” hashish.
Id. at 94, 275 S.E.2d at 204. Unlike Brooks, here the officers in
searching the adjacent “shack” did locate crack cocaine, the exact
item that the warrant sought. Accordingly, we hold that the trial
court's reliance on Brooks was error.
The State also relies on State v. Watlington, 30 N.C. App.
101, 226 S.E.2d 186, disc. review denied, 290 N.C. 666, 228 S.E.2d
457 (1976). In Watlington, the police obtained a warrant
authorizing them to search the vehicle of a third party. Id. The
defendant was a passenger in the vehicle. Id. After the search of
the automobile proved fruitless, the police searched the
defendant's person and found four packets of heroin in her jacket.
Id. at 102, 226 S.E.2d at 187. This Court upheld the search based
on G.S. § 15A-256. Id. In Watlington, like Brooks, the police
failed to locate the object of their search by searching the
vehicle. In the instant case, the police did locate the exact item
specified in the warrant. Therefore, Watlington is distinguishable
and does not bind us here. The State has failed to show that the officers' search
complies with the requirements of G.S. § 15A-256. Additionally, the
record does not indicate any evidence of probable cause
particularized to this defendant. Therefore, the trial court's
conclusion that the officers' search was “without constitutional
violation” was error. In the absence of probable cause or another
warrant exception, the trial court should have suppressed the
evidence the officers seized during the search of the defendant's
person.
Reversed and remanded.
Judges WALKER and WYNN concur.
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