v
.
CAROLYN NANCE
Attorney General Roy Cooper, by Assistant Attorney General
Joan M. Cunningham, for the State.
Noell P. Tin for defendant appellant.
TIMMONS-GOODSON, Judge.
On 20 September 2000, a jury found Carolyn Nance ("defendant")
guilty of six counts of misdemeanor cruelty to an animal. Before
trial, defendant made a motion to suppress evidence seized by
animal control officers without a warrant. Specifically, defendant
objected to the officers' seizure of six horses owned by defendant.
Defendant's motion to suppress came before the trial court on 18
September 2000, at which time the trial court made the following
pertinent findings of fact:
5. On December 18, 1998, Animal Control
Officers received a telephone call . . .
concerning the welfare of a herd of horses
located off Old Mocksville Road in Rowan
County.
6. Rowan County Animal Control Officers
Frances Pepper and Animal Control Field
Supervisor Robin Cook went to the Ridenhour
farm located on Old Mocksville Road in Rowan
County where they were met by the owner of thefarm, John Ridenhour. Through investigation
they learned that the horses were owned by the
Defendant and that she leased barns and
paddocks from Mr. Ridenhour. The Officers
initially viewed the horses from the road
beside the pasture. They saw horses that were
extremely thin, had their bones showing, were
in an emaciated condition, and appeared to be
starving. They were standing in water and mud
without any visible food. Some of the horses
were visible from the common driveway shared
by the Kirkpatrick septic business, the
Ridenhour home and the Defendant Nance's
leased property. None of the horses were in
closed structures, barns, behind closed doors
or otherwise out of sight. The horses were
located in open, accessible areas on the
Defendant's leased property. The horses, and
their condition were readily visible to the
officers from the roadway that ran back to the
septic tank business. The officers saw around
18 horses on the property that night.
7. Officers were unable to seize the horses
on December 18, 1998, due to having no
transportation for the horses and having no
facilities for their care.
8. Animal Control Supervisor Clai Martin was
advised of the situation by Officer Cook and
went to the Ridenhour farm on Saturday
morning, December 19, 1998. He spent only 5
minutes but in that time he saw that the
horses he was able to see from the roadway
that ran back to the septic tank business were
in extremely poor condition, they were very
thin and appeared to be starving. He . . .
did not see any food for these horses.
9. Officers Martin and Cook began making
arrangements for seizing some of these horses.
The arrangements included getting an agreement
from Rowan County and the Jaycees to allow the
seized horses to be kept at the Rowan County
Fairgrounds, which had inside accommodations
for horses, getting transportation in the form
of stock trailers for the horses and getting
people who were familiar with horses to assist
in the loading and unloading of the horses.
The plan was to meet at the Ridenhour farm at
8:30am on Monday December 21, 1998, and to
remove 9 of the horses in the worst condition,if the condition of the horses and the
property was the same as seen by Officers on
December 18 and 19, 1998.
10. On December 21, 1998, Animal Control
Officers for Rowan County including Field
Supervisor Cook and Officer Frances Pepper,
Salisbury Animal Control Officer Ann Frye,
Animal Control employee Kim Moore and other
volunteers went to the Ridenhour farm. The
horses were still located in open accessible
areas on the Defendant Nance's leased
property. None of the horses were located in
any enclosed structure. The horses were
emaciated and appeared to be starving . . . .
The Animal Control Officers concluded, based
upon their training and experience that the
horses were starving and in need of immediate
veterinary treatment. There was no available
food for these horses and Supervisor Martin
was called and made the final decision to
seize the horses.
. . . .
12. The Defendant came to the Ridenhour farm
on December 21, 1998, and ordered Officers and
others off her leased property and ordered the
officers to unload her horses. The Defendant
did not consent to the officers' presence or
the taking of the horses.
13. The 6 horses that are involved in these
cases were seized that day. The horses were
in plain view and were evidence that they had
been cruelly treated under G.S. 14-360.
Exigent circumstance[s] existed in that if the
horses were not fed and did not receive
immediate veterinary treatment they might
further deteriorate or even die.
14. There was no search warrant or other
process obtained by the officers before their
seizure of the horses on December 21, 1998.
The officers did not obtain an Order under
G.S. 19A-46.
. . . .
16. The Fourth Amendment protects people in
their homes and the curtilage of their homes,
but not within open areas outside of thecurtilage of their homes. The defendant
admitted living at least 1 mile from the
Ridenhour farm and that there were at least 2
landowners between her personal residence and
her leased property at the Ridenhour farm.
The horses were not kept within the curtilage
of Defendant's property.
17. The horses that are the subject of these
cases were being kept in open paddocks that
were surrounded by open pipe fencing; the
horses were visible to anyone outside of the
fence. None of the horses was kept in a
closed structure or in an enclosed barn behind
any type of door.
Based on the above-stated facts, the trial court concluded that,
because “[t]he rental property where the horses were located was
not covered by the Fourth Amendment[,]” the warrantless entry onto
defendant's property and seizure of her horses did not violate
defendant's constitutional or statutory rights. The trial court
therefore denied defendant's motion to suppress.
Upon receiving the jury's guilty verdict, the trial court
sentenced defendant to a suspended sentence of forty-five days'
imprisonment and placed defendant on supervised probation for
eighteen months. Defendant also forfeited the six horses to the
Rowan County Animal Control, and the trial court ordered her "not
to own, possess, or care for any animals while on probation." The
trial court further ordered defendant to pay fines, costs and
restitution to Rowan County for the care of the horses. Defendant
appeals from her conviction and resulting sentence.
_______________________________________________________
The issue on appeal is whether the trial court erred in
denying defendant's motion to suppress the evidence seized byanimal control officers without a warrant. For the reasons stated
herein, we reverse the trial court.
The trial court's findings of fact following a suppression
hearing are conclusive and binding on the appellate courts when
supported by competent evidence. See State v. Brooks, 337 N.C.
132, 140-41, 446 S.E.2d 579, 585 (1994). While the trial court's
factual findings are binding if sustained by the evidence, the
court's conclusions based thereon are reviewable de novo on appeal.
See State v. Mahaley, 332 N.C. 583, 592-93, 423 S.E.2d 58, 64
(1992), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 649 (1995).
Defendant argues that the animal control officers had no right
to enter her property and seize her horses without first securing
a warrant. Such seizure, contends defendant, was per se
unreasonable under the Fourth Amendment, and as such, the evidence
obtained by the illegal seizure was inadmissible at trial. The
State argues that, as the horses were located in plain view in an
open field, their seizure did not implicate defendant's Fourth
Amendment rights. Under the facts of the present case, we agree
with defendant that the officers' entry onto her property and
seizure of her horses violated her rights under the Fourth
Amendment, and we therefore reverse the judgment of the trial
court.
The Fourth Amendment provides, in pertinent part, that the
“right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated.” U.S. Const. amend. IV. “A 'seizure' of propertyoccurs when there is some meaningful interference with an
individual's possessory interests in that property.” United States
v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 94 (1984). A
search occurs when there is an infringement upon a person's
expectation of privacy that society recognizes as reasonable. See
id. “The right to security in person and property protected by the
Fourth Amendment may be invaded in quite different ways by searches
and seizures. A search compromises the individual interest in
privacy; a seizure deprives the individual of dominion over his or
her person or property.” Horton v. California, 496 U.S. 128, 133,
110 L. Ed. 2d 112, 120 (1990). Thus, whether an individual's
privacy interest has been compromised is a distinct question
requiring a separate analysis than the issue of whether an
individual has been unreasonably deprived of dominion over his
property. See id.
In the instant case, animal control officers seized horses
that were located on defendant's property in an open field.
Generally, an open field is not an area entitled to Fourth
Amendment privacy protection, because an individual has no
legitimate privacy interest in areas outside the home or its
curtilage. See United States v. Dunn, 480 U.S. 294, 300, 94 L. Ed.
2d 326, 334 (1987); State v. Tarantino, 322 N.C. 386, 390, 368
S.E.2d 588, 591 (1988), cert. denied, 489 U.S. 1010, 103 L. Ed. 2d
180 (1989). “What a person knowingly exposes to the public, even
in his own home or office, is not a subject of Fourth Amendment
protection.” Katz v. United States, 389 U.S. 347, 351, 19 L. Ed.2d 576, 582 (1967). Thus, when officers are in a public place or
some other area, such as an open field, that is not protected by
the Fourth Amendment, knowledge that they gain from their plain-
view observations does not constitute a search under the Fourth
Amendment. See Payton v. New York, 445 U.S. 573, 586-87, 63 L. Ed.
2d 639, 651 (1980). Whether such plain-view observations can
justify a warrantless seizure, however, is a separate question.
See Soldal v. Cook County, 506 U.S. 56, 65-66, 121 L. Ed. 2d 450,
461-62 (1992). “If the boundaries of the Fourth Amendment were
defined exclusively by rights of privacy, 'plain view' seizures
would not implicate that constitutional provision at all. Yet, far
from being automatically upheld, 'plain view' seizures have been
scrupulously subjected to Fourth Amendment inquiry.” Id. at 66,
121 L. Ed. 2d at 461. “That is because, the absence of a privacy
interest notwithstanding, '[a] seizure . . . obviously invade[s]
the owner's possessory interest.'” Id. (quoting Horton, 496 U.S.
at 134, 110 L. Ed. 2d at 121)(alteration in original). Thus, in
the case at bar, although the observation by animal control
officers of the horses located on defendant's property in an open
field was not a search entailing defendant's privacy interests,
there is no question that the officers deprived defendant of her
possessory interest in her horses when they removed the horses from
her property. Such deprivation clearly constituted a seizure and
therefore implicated Fourth Amendment protections. As defendant's
Fourth Amendment rights were implicated by the seizure, the issuebecomes whether or not such seizure was reasonable under the Fourth
Amendment.
Whether or not the warrantless seizure of items in plain view
is reasonable under the Fourth Amendment depends on several
factors. First, officers must not violate the Fourth Amendment in
arriving at the place from which the evidence could be plainly
viewed. See Horton, 496 U.S. at 136, 110 L. Ed. 2d at 123.
Second, the incriminating character of the item in plain view must
be “immediately apparent.” Coolidge v. New Hampshire, 403 U.S.
443, 466, 29 L. Ed. 2d 564, 583 (1971). Third, “not only must the
officer be lawfully located in a place from which the object can be
plainly seen, but he or she must also have a lawful right of access
to the object itself.” Horton, 496 U.S. at 137, 110 L. Ed. 2d at
123; see also Soldal, 506 U.S. at 66, 121 L. Ed. 2d at 461 (noting
that, in the absence of consent, warrantless seizures “can be
justified only if they meet the probable-cause standard . . . and
if they are unaccompanied by unlawful trespass”)(citation and
footnote omitted); State v. Worsley, 336 N.C. 268, 282, 443 S.E.2d
68, 75 (1994) (affirming that seizure of suspicious items in plain
view inside a dwelling is lawful only if the officer possesses the
legal authority to be on the premises).
Applying the above-stated factors to the officers' actions in
the instant case, we first conclude that the officers did not
violate the Fourth Amendment when they initially viewed the horses.
The trial court's findings reveal that the officers could clearly
and plainly view the horses from the officers' vantage point fromthe adjacent Ridenhour property and the common roadway beside
defendant's property. The horses were not within any type of
enclosed structure and were surrounded only by open pipe and
electrical fencing that was not designed to shield the animals from
view. See Dunn, 480 U.S. at 303, 94 L. Ed. 2d at 336 (stating that
fences intended to corral livestock are not designed to prevent
people from observing what lies within the enclosed area).
Second, the incriminating character of the evidence seized in
the instant case was immediately apparent to the animal control
officers. North Carolina General Statutes section 14-360, entitled
Cruelty to Animals, provides that:
(a) If any person shall intentionally
overdrive, overload, wound, injure, torment,
kill, or deprive of necessary sustenance, or
cause or procure to be overdriven, overloaded,
wounded, injured, tormented, killed, or
deprived of necessary sustenance, any animal,
every such offender shall for every such
offense be guilty of a Class 1 misdemeanor.
N.C. Gen. Stat. § 14-360(a) (1999). The trial court found, and the
record shows, that the horses were extremely thin and in an
emaciated condition when the officers observed them. The horses'
bones were showing, and they appeared to be starving. Further, the
animals were standing in water and mud without any visible food.
These findings by the trial court, as well as photographs of the
animals included in the record, indicate that the condition of the
horses was piteous to a degree open and obvious to anyone viewing
them, such that the officers could reasonably conclude that section
14-360 had been violated. The incriminating character of the
evidence seized was therefore immediately apparent. In the third and final prong of the test for determining
whether the warrantless seizure was reasonable, we must examine
whether the officers had lawful access to the horses when they
seized the animals. The United States Supreme Court has explained
that the requirement of lawful access to the object seized
is simply a corollary of the familiar
principle . . . that no amount of probable
cause can justify a warrantless search or
seizure absent “exigent circumstances.”
Incontrovertible testimony of the senses that
an incriminating object is on premises
belonging to a criminal suspect may establish
the fullest possible measure of probable
cause. But even where the object is
contraband, this Court has repeatedly stated
and enforced the basic rule that the police
may not enter and make a warrantless seizure.
Coolidge, 403 U.S. at 468, 29 L. Ed. 2d at 584; see Horton, 496
U.S. at 137 n.6b, 110 L. Ed. 2d at 123 n.7. The officers in the
instant case had neither consent nor a warrant authorizing their
entry onto defendant's property. The State argues that the
officers' access to the animals was lawful on several grounds.
First, the State argues that the horses were located in a public
place. Second, the State asserts that “officers who are conducting
a legitimate law enforcement function on property are not violating
North Carolina's criminal trespass laws” and that therefore, the
access was lawful. Finally, the State contends that exigent
circumstances existed such that the officers were not required to
obtain a warrant. We disagree on all points.
First, although it is true that “objects such as weapons or
contraband found in a public place may be seized by the policewithout a warrant[,]” there is no evidence whatsoever that
defendant's leased property was “a public place.” Payton, 445 U.S.
at 587, 63 L. Ed. 2d at 651. The fact that defendant's property
included open fields does not transform private property into
public land. We therefore reject this basis as a justification
for the officers' actions.
We further disagree with the State's assertion that law
enforcement officers may enter private property whenever they are
conducting “legitimate law enforcement functions.” The State
relies on two cases for its assertion, namely State v. Tripp, 52
N.C. App. 244, 278 S.E.2d 592 (1981), and State v. Prevette, 43
N.C. App. 450, 259 S.E.2d 595 (1979), appeal dismissed and disc.
review denied, 299 N.C. 124, 261 S.E.2d 925, cert. denied, 447 U.S.
906, 64 L. Ed. 2d 855 (1980). Neither case stands for the
proposition that law enforcement officers may enter private
property without a warrant and seize evidence of a crime. Rather,
both cases affirm that “[l]aw enforcement officers have the right
to approach a person's residence to inquire as to whether the
person is willing to answer questions[,]” Tripp, 52 N.C. App. at
249, 278 S.E.2d at 596, and do not trespass when they enter an
individual's property “for the purpose of a general inquiry or
interview.” Prevette, 43 N.C. App. at 455, 259 S.E.2d at 599-600.
Thus, officers standing on the porch of the defendant's residence
in Prevette were lawfully on the premises when they observed in
plain view marijuana inside the defendant's home. The Prevette
Court warned, however, that “plain view of objects inside a housewill furnish probable cause but will not, without exigent
circumstances, authorize entry to seize without a warrant.” Id. at
456, 259 S.E.2d at 600.
The officers in the instant case did not enter defendant's
property in order to conduct a “general inquiry or interview;”
rather, they entered defendant's property for the express purpose
of seizing evidence of a crime. Although the trial court found
that the horses were located in “accessible” areas, the evidence
does not support this finding. The transcript reveals that the
animal control officers were forced to remove the electrical
fencing surrounding the horses in order to gain access to the
animals. If the position advanced by the State were correct, law
enforcement officers could enter onto private property and seize
evidence of criminal activity without a warrant whenever they had
probable cause to suspect that such activity was taking place.
Such a position directly contradicts repeated admonitions by the
United States Supreme Court that although
“[t]he seizure of property in plain view
involves no invasion of privacy and is
presumptively reasonable, assuming that there
is probable cause to associate the property
with criminal activity[,]” [a] different
situation is presented . . . when the property
in open view is “situated on private premises
to which access is not otherwise available for
the seizing officer.”
Texas v. Brown, 460 U.S. 730, 738, 75 L. Ed. 2d 502, 511 (1983)
(quoting Payton, 445 U.S. at 587, 63 L. Ed. 2d at 651). As this
Court has observed, “[t]he implication that police officers have
the right to seize any item which comes into their plain view at aplace they have a right to be is fraught with danger and would
sanction the very intrusions into the lives of private citizens
against which the Fourth Amendment was intended to protect.” State
v. Bembery, 33 N.C. App. 31, 33, 234 S.E.2d 33, 35, disc. review
denied, 293 N.C. 160, 286 S.E.2d 704 (1977).
The State further argues that the officers' access to the
horses was lawful because exigent circumstances existed to justify
the warrantless seizure. Exigent circumstances exist when there is
“[a] situation that demands unusual or immediate action and that
may allow people to circumvent usual procedures[.]” Black's Law
Dictionary 236 (7th ed. 1999); see also Robert L. Farb, Arrest,
Search, and Investigation in North Carolina 49 (2d ed. 1992)
(stating that exigent circumstances exist when immediate action is
necessary). “If the circumstances of a particular case render
impracticable a delay to obtain a warrant, a warrantless search on
probable cause is permissible . . . .” State v. Allison, 298 N.C.
135, 141, 257 S.E.2d 417, 421 (1979). The United States Supreme
Court has approved the following exigent circumstances justifying
warrantless searches and seizures: (1) where law enforcement
officers are in “hot pursuit” of a suspect, see, e.g., State v.
Santana, 427 U.S. 38, 42-43, 49 L. Ed. 2d 300, 305 (1976); (2)
where there is immediate and present danger to the public or to law
enforcement officers, see, e.g., Warden v. Hayden, 387 U.S. 294,
298-99, 18 L. Ed. 2d 782, 787 (1967); (3) where destruction of
evidence is imminent, see, e.g., Santana, 427 U.S. at 43, 49 L. Ed.
2d at 305; and (4) where the gravity of the offense for which thesuspect is arrested is high, see, e.g., Welsh v. Wisconsin, 466
U.S. 740, 753, 80 L. Ed. 2d 732, 745 (1984). These cases suggest
that exigent circumstances exist where the need for immediate
action is so great as to outweigh the potential infringement of a
defendant's rights under the Fourth Amendment, thereby justifying
the officers' failure to obtain a warrant.
In the present case, the trial court stated that “[e]xigent
circumstance[s] existed in that if the horses were not fed and did
not receive immediate veterinary treatment they might further
deteriorate or even die.” The trial court's findings of fact,
however, do not support its conclusion that exigent circumstances
existed. The evidence and the trial court's own findings reveal
that the animal control officers first viewed the horses and their
condition on 18 December 1998, but “were unable to seize the horses
[at that time] due to having no transportation for the horses and
having no facilities for their care.” During the next two days,
the officers “began making arrangements for seizing some of these
horses.” Such arrangements included “getting an agreement from
Rowan County and the Jaycees to allow the seized horses to be kept
at the Rowan County Fairgrounds,” obtaining “transportation in the
form of stock trailers[,]” and finding “people who were familiar
with horses to assist in the loading and unloading of the horses.”
During all of this time, however, no one secured a warrant
authorizing entry onto defendant's property and seizure of the
horses. The officers did not actually seize the horses until 21
December 1998, three days after initially viewing their condition. We conclude that exigent circumstances did not exist in the
instant case. Clearly, obtaining a warrant would not have
presented an impracticable delay under the circumstances. Although
the trial court found that the horses might further deteriorate or
even die if they did not receive immediate treatment, we note that
the horses did not actually receive such treatment until 21
December 1998, when they were seized. The record shows that animal
control officers had ample time during the three days after viewing
the horses in which to secure a warrant, but neglected to do so
because they mistakenly believed it to be unnecessary. As Animal
Control Department Supervisor Clai Martin explained, “it was an
open field, and we went by the open field and that field was away
from the curtilage of the property, and, of course, in that
situation no warrant is required.” Because exigent circumstances
did not exist, the animal control officers did not have lawful
access to the horses. The officers' entry onto defendant's
property and the seizure of her horses was therefore an
unreasonable seizure under the Fourth Amendment.
As the seizure of the horses violated defendant's Fourth
Amendment rights, the trial court erred in denying defendant's
motion to suppress evidence obtained pursuant to the illegal
seizure. See N.C. Gen. Stat. § 15A-974 (1999) (requiring exclusion
of unlawfully obtained evidence). We emphasize, however, that the
animal control officers did not conduct an illegal search when they
viewed the animals while standing on the adjacent property and
roadway. Thus, any evidence gathered by the officers before theyunlawfully entered defendant's property, including photographs of
the horses, is not subject to defendant's motion to suppress.
This Court is sympathetic to the laudable efforts of animal
control officers in North Carolina in preventing cruelty to
animals, and in caring for and rehabilitating animals who have been
neglected and abused. We are moreover mindful of the time,
resource, and personnel constraints faced by such officers. “We
believe, however, that the interests of all can be accommodated .
. . while still respecting the integrity of the [F]ourth
[A]mendment.” State v. Schwegler, 170 Wis. 2d 487, 501, 490 N.W.2d
292, 297 (1992). In conclusion, we hold that the trial court erred
in denying defendant's motion to suppress evidence admitted at
trial as a result of a warrantless seizure. We therefore reverse
the judgment of the trial court and remand for a new trial.
Reversed and remanded.
Judges BRYANT and SMITH concur.
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