Defendant argues on appeal that the trial court erred by
denying his motion to suppress the cocaine and money seized from
him when the law enforcement officers followed him inside the
house. We conclude that the trial court's order was based upon
errors of law, and must be reversed.
In its ruling on defendant's suppression motion, the trial
court stated, in pertinent part, the following:
Unless search exists from the mere fact of the
officers entering the home, that does not
concern me, and the issue of search as such in
the home is a matter that this defendant,
nothing else appearing, has the right or the
standing to raise.
I do not think that there was a search as of
such involving the defendant because, . . .
the drugs appeared on the table as having
fallen from his pocket. I think it's a better
practice to be used under the totality of the
situation that these officers -- better police
practice would have been to -- to obtain a
warrant. The [confidential informant's]
information per two weeks, nothing else
appearing, would probably be stale.
(emphasis added). Thus, in its ruling on defendant's suppression
motion, the trial court apparently (1) held that the mere entry
into the house by law enforcement officers did not constitute a
search; (2) assumed that, nothing else appearing the defendant
had standing to contest the search of the house; and (3) concluded
that the cocaine was not seized pursuant to a search of defendant,because it was in plain view of the officer. In these assumptions
and conclusions, the trial court erred.
The Fourth Amendment to the U.S. Constitution provides 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.
The Fourth Amendment is applicable to the
states through the Due Process Clause of the
Fourteenth Amendment. Similarly, the
Constitution of the State of North Carolina
provides that 'general warrants, whereby any
officer or other person may be commanded to
search suspected places without evidence of
the act committed, or to seize any person or
persons not named, whose offense is not
particularly described and supported by
evidence, are dangerous to liberty and shall
not be granted.'
State v. Grooms
, 353 N.C. 50, 73, 540 S.E.2d 713, 728 (2000)
(quoting N.C. Const. art. I, § 20) (citing State v. Watkins
N.C. 437, 441, 446 S.E.2d 67, 69 (1994)), cert. denied
, 534 U.S.
838, 151 L. Ed. 2d 54 (2001).
In the instant case, the trial court held that the mere
entry into the house by law enforcement officers was not a search
within the meaning of the Fourth Amendment. However, generally
speaking, an intrusion into a residence is
a search within the
meaning of the Fourth Amendment, for physical entry of the home is
the chief evil against which the wording of the Fourth Amendment is
directed. United States v. United States District Court
, 407 U.S.
297, 313, 32 L. Ed. 2d 752, 764 (1972). Indeed, exclusion of thegovernment from one's dwelling lies at the heart of the Fourth
A man's home is his castle. The storm and wind
may enter, but the King cannot enter, and all
the forces of the Crown cannot cross the
threshold of his ruined tenement. These words
by Lord Eldon served as the basis for that
portion of the Fourth Amendment in the Bill of
Rights declaring that the people shall be
secure in their houses against unreasonable
searches and seizures.
Pledger v. State
, 257 Ga. App. 794, 797, 572 S.E.2d 348, 351
The United States Supreme Court recently held:
'At the very core' of the Fourth Amendment
'stands the right of a man to retreat into his
own home and there be free from unreasonable
governmental intrusion.' With few exceptions,
the question whether a warrantless search of a
home is reasonable and hence constitutional
must be answered no
. . . in the case of the
search of a home's interior . . . there is a
ready criterion, with roots deep in the common
law, of the minimal expectation of privacy
that exists, and that is acknowledged to be
Kyllo v. United States
, 533 U.S. 27, 31, 34, 150 L. Ed. 2d 94, 100
(2001) (police use of thermal imager to obtain information about
inside of house constituted a search for 4th
(quoting Silverman v. United States
, 365 U.S. 505, 511, 5 L. Ed. 2d
734, 739 (1961)); see also State v. Tarantino
, 322 N.C. 386, 368
S.E.2d 588 (1988) (officer's use of flashlight to peer between
cracks of boarded up outbuilding is a search within the meaning of
the Fourth Amendment), cert. denied,
489 U.S. 1010, 103 L. Ed. 2d
180 (1989); State v. Wooding
, 117 N.C. App. 109, 449 S.E.2d 760
(1994) (finding unlawful search of apartment where officer looked
in through small gap in curtains). We conclude that the lawenforcement officers' entry into the house constituted a search
for purposes of the Fourth Amendment. Moreover, '[i]t is a basic
principle of Fourth Amendment law' that searches and seizures
inside a home without a warrant are presumptively unreasonable.'
State v. Smith
, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997)
(quoting Payton v. New York
, 445 U.S. 573, 586, 63 L. Ed. 2d 639,
651 (1980)). In Payton
, the United States Supreme Court stated:
In terms that apply equally to seizures of
property and to seizures of persons, the
Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent
circumstances, that threshold may not
reasonably be crossed without a warrant.
at 590, 63 L. Ed. 2d at 653. In the present
appeal, the State does not argue that exigent circumstances were
present. We conclude that the officers' entry into the house was
a warrantless, nonconsensual search, and as such was presumptively
in violation of the Fourth Amendment to the U.S. Constitution.
Accordingly, the trial court erred by assuming otherwise.
The trial court also concluded that there was no search of the
defendant because the defendant went into his pocket and the drugs
appeared on the table as having fallen from his pocket. In
essence, the trial court ruled that the cocaine was in plain view
of Boykin after he entered the house. It is true that under
certain circumstances the police may seize evidence in plain view
without a warrant. Coolidge v. New Hampshire
, 403 U.S. 443, 465,
29 L. Ed. 2d 564, 582 (1971). However, the initial intrusion
which brings the evidence into plain view must be lawful for the
plain view exception to apply. State v. Williams
, 315 N.C. 310,317, 338 S.E.2d 75, 80 (1986)
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. State v. Nance
, 149 N.C.
App. 734, 740, 562 S.E.2d 557, 561 (2002) (plain view exception to
warrant requirement of Fourth Amendment not applicable where
officers' entry onto property was unlawful and was not justified by
exigent circumstances). Thus, the trial court erred by considering
the fact that the cocaine was in plain view without first
determining whether the officers had a lawful right to be present
in the house. Similarly, the State argues on appeal that the
defendant forfeited his privacy interest in the cocaine when he
dropped it on the table. Again, this begs the question of whether
law enforcement officers were rightfully present in the home.
We next consider the trial court's determination that this
defendant was entitled to challenge the search of the house. A
defendant's rights against unreasonable searches and seizures
under the Fourth Amendment are personal and, unlike some
constitutional rights, may not be asserted by another. State v.
, 291 N.C. 37, 50, 229 S.E.2d 163, 172 (1976) (citing Brown v.
, 411 U.S. 223, 36 L. Ed. 2d 208 (1973)).
Before defendant can assert the protection
afforded by the Fourth Amendment, however, he
must demonstrate that any rights alleged to
have been violated were his rights, not
someone else's. A person's right to be free
from unreasonable searches and seizures is a
personal right, and only those persons whoserights have been infringed may assert the
protection of the Fourth Amendment.
State v. Ysut Mlo
, 335 N.C. 353, 377, 440 S.E.2d 98, 110, cert.
, 512 U.S. 1224, 129 L. Ed. 2d 841 (1994). Additionally,
under N.C.G.S. § 15A-972 (2001), only a defendant who is aggrieved
may move to suppress evidence[.] The North Carolina Supreme Court
interprets G.S. § 15A-972 as follows:
[W]e hold that a defendant is aggrieved and
may move to suppress evidence under G.S.
15A-972 only when it appears that his personal
rights, not those of some third party, may
have been violated, and such defendant has the
burden of establishing that he is an aggrieved
party before his motion to suppress will be
State v. Taylor
, 298 N.C. 405, 415-416, 259 S.E.2d 502, 508 (1979)
As a general rule, in a suppression hearing, the State has
the burden to demonstrate the admissibility of the challenged
evidence. State v. Tarlton
, 146 N.C. App. 417, 420, 553 S.E.2d
50, 53 (2001) (citing State v. Harvey
, 78 N.C. App. 235, 237, 336
S.E.2d 857, 859 (1985)). However, the defendant has the burden to
establish his right to contest a challenged search. Ysut Mlo
N.C. at 378, 440 S.E.2d at 110-111; State v. Greenwood
, 301 N.C.
705, 708, 273 S.E.2d 438, 441 (1981) (defendant [has] the burden
of demonstrating an infringement of his personal rights by a
Although a defendant's entitlement to Fourth Amendment
protections is frequently referred to as his standing to object
to a search, the United States Supreme Court explained in Minnesotav. Carter
, 525 U.S. 83, 84, 142 L. Ed. 2d 373, 376 (1998), that
the rubric of standing doctrine [has been] expressly rejected . .
. to claim Fourth Amendment protection, a defendant must
demonstrate that he personally has an expectation of privacy in the
place searched, and that his expectation is reasonable. Under
some circumstances a defendant who is not the legal owner or lessee
of a house may nonetheless have a reasonable expectation of privacy
while on the premises. For example, in Minnesota v. Olson
U.S. 91, 96-97, 109 L. Ed. 2d 85, 93 (1990), the United States
Supreme Court held that [defendant's] status as an overnight guest
is alone enough to show that he had an expectation of privacy in
the home that society is prepared to recognize as reasonable. The
Court explained that its holding merely recognizes the everyday
expectations of privacy that we all share. Id.
at 98, 109 L. Ed.
2d at 94. The values underlying Olson
have also been recognized in
situations other than those involving overnight houseguests:
[Plaintiff] was not an overnight guest.
Nevertheless, the principles that guided Olson
are applicable to her. [She] was a frequent
visitor at the Mealey residence. . . . She
often ran errands for Ms. Mealey, whom
everyone called 'Grandma'. . . . We believe
that [her] activities -- visiting a neighbor
and assisting the elderly -- establish an
expectation of privacy that is 'recognized and
permitted by society.'
Bonner v. Anderson
, 81 F.3d 472, 475 (4th Cir. 1996). In Minnesota
, 525 U.S. 83, 142 L. Ed. 2d 373, the Court refined its
holding in Olson
, drawing a distinction between social visitors and
those present only for a business transaction: Respondents
here were obviously not overnight
guests, but were essentially present for a
and were only in the home
a matter of hours. There is no suggestion
that they had a previous relationship
[tenant of apartment], or that there was any
other purpose to their visit. Nor was there
anything similar to the overnight guest
relationship in Olson
to suggest a degree of
acceptance into the household.
at 90, 142 L. Ed. 2d at 473 (emphasis added). In a Georgia
the defendant, who was on the porch of his girlfriend's
sister's apartment, ran inside when the police approached the area.
The Georgia Court of Appeals held:
As no criminal activity was observed by
police, the mere fact that . . . appellee
'ran' inside the apartment when the police
drove up did not provide probable cause and/or
exigent circumstances authorizing the police
to enter Jennifer Tabb's home to arrest
appellee without a warrant. . . .
[A]ppellee had a legitimate expectation of
privacy in the apartment of Jennifer Tabb. He
was a frequent welcome social visitor, he left
possessions there, and he had spent the night
as a social guest. That he may not have been
spending the night on this occasion does not
alter his status as Tabb's social guest. He
had been allowed previously to 'seek shelter'
by entering her house on a recurring basis,
and that is what he did on this occasion -- he
entered her house. As the evidence viewed to
support the trial court's ruling shows, he was
not a stranger standing on the street; he was
not seen doing anything illegal.
State v. Brown
, 212 Ga. App. 800, 801-803, 442 S.E.2d 818, 819-821
In sum, a defendant challenging a Fourth Amendment violation
occurring in the home of another must demonstrate a legitimate
expectation of privacy, which has two components: (1) the personmust have an actual expectation of privacy, and (2) the person's
subjective expectation must be one that society deems to be
reasonable. State v. Wiley
, 355 N.C. 592, 602, 565 S.E.2d 22, 32
(2002), cert. denied
, __ U.S. __, 154 L. Ed. 2d 795 (2003).
In the instant case we conclude that the trial court may have
applied an erroneous legal standard to the issue of whether
defendant could properly challenge the search of the house. In its
ruling, the court stated that the issue of search as such in the
home is a matter that this defendant, nothing else appearing
the right or the standing to raise. We interpret the phrase
nothing else appearing to be a shorthand expression for nothing
else appearing to the contrary. Thus, the trial court appears to
assume that, in the absence of evidence requiring a contrary
ruling, the default setting would be that the defendant had
standing to contest the search. As discussed above, the law
requires defendant to show that he had an actual and reasonable
expectation of privacy in the house.
Moreover, we conclude that we cannot determine from the
evidence presented on voir dire
whether the trial court correctly
ruled that the defendant was entitled to challenge the search of
the house. The applicable standard in reviewing a trial court's
determination on a motion to suppress is that the trial court's
findings of fact 'are conclusive on appeal if supported by
competent evidence, even if the evidence is conflicting.' State
, 356 N.C. 316, 332, 572 S.E.2d 108, 120-121 (2002)
(quoting State v. Eason
, 336 N.C. 730, 745, 445 S.E.2d 917, 926(1994), cert. denied
, 513 U.S. 1096, 130 L. Ed. 2d 661 (1995)),
, __ U.S. __, 155 L. Ed. 2d 1074 (2003). Therefore, we
would ordinarily examine the record to determine whether the trial
court's conclusion that the defendant had standing to challenge
the search of the house was supported by competent evidence.
However, our review of the transcript indicates that there was
insufficient evidence presented on this issue to enable us to reach
a determination, and suggests the trial court may have
inadvertently discouraged counsel for the State and the defendant
from presenting all their evidence relevant to this issue.
The trial court was an active participant in conducting the
. Initially the prosecutor questioned Boykin about the
sequence of events surrounding defendant's arrest, which occupies
about five pages of transcript testimony. At the end of the voir
, defendant cross-examined Boykin, which also occupies about
five pages of transcript. But, sandwiched between the examinations
conducted by the State and defendant are at least twelve pages of
testimony and discussion directed or conducted by the trial court.
The trial court focused primarily on the lack of a search warrant,
and questioned Boykin extensively about his failure to obtain a
search warrant prior to approaching the house. This was certainly
a valid concern for the court to address. However, in the course
of the voir dire
, the trial court indicated several times that it
was disinclined to hear evidence on the issue of standing. In the
course of its soliloquy, the trial court stated, in pertinent part:
THE COURT: I want to know _ if I see an
officer and I turn and go the other way, bywhat right does that officer come in hot
pursuit of me? And certainly when I go into a
residence _ here's an officer who . . . has
sent a confidential and reliable informant who
brings him back information that confirms what
Now, our Constitution says that at that
point in time you want to go in there, go get
you a piece of paper. . . . Why these
officers didn't go get a . . . search warrant,
rather than . . . go[ing] into what is the
most precious thing that we have in a free
society, and that is our castle.
Now, whatever the relationship was between
[defendant] and [Simms] I'm truly not
But to go into someone's
residence because they get up and leave at
that time. . . .
(emphasis added). After some discussion regarding whether the law
enforcement officers could justify their warrantless entry into the
house on the basis of reasonable suspicion, the prosecutor shifted
gears, and attempted to raise the question of defendant's
entitlement to claim Fourth Amendment protection:
PROSECUTOR: Okay. Well, that brings me to my
next issue, which is it's not the defendant's
house. . . .
THE COURT: Who says it's not the defendant's
(emphasis added). After this remark by the trial court, no further
evidence was adduced on defendant's standing to challenge the
search, although the prosecutor and defense each presented brief
arguments on the issue. The trial court then directed the voir
dire back to the issue of the officer's conduct:
THE COURT: I am aware of the standing issue. .
. . The defendant has standing to move to
suppress evidence only when it appears that
the defendant's personal rights, not those ofa third party, have been threatened. And at
this point in time I don't know what the
defendant's rights were as it pertains to that
The thing that made my hair stand up is
Officer Boykin's own words,
If they ran, I
was going to follow; if not, I was going to
talk to them. So there's a mind-set already
made up that regardless of what occurred, I
was going into that home.
(emphasis added). Following the trial court's lead, the prosecutor
engaged in a brief debate with the court regarding the officer's
behavior. Then, although defense counsel had not yet had any
opportunity to cross-examine the officer, the trial court asked:
THE COURT: Are you through [defense
[DEFENSE COUNSEL]: Through with the argument
on that point, Your Honor.
THE COURT: Do you wish to [cross-examine] the
[DEFENSE COUNSEL]: Yes, Your Honor. Just a
couple of questions, please. I think most of
it has been covered.
We conclude that the trial court misapplied the law in regards to
whether the law enforcement officers' entry into the house was a
search, and on whether the concept of plain view was
appropriately considered in this factual setting. We further
conclude that the court may have been operating under a
misapprehension about the defendant's standing to contest the
officer's entry into the house. The trial court also may have
prevented a full airing of all relevant evidence on the issue, thus
preventing this Court from conducting our own review. We hold,
therefore, that the trial court erred in its ruling on defendant's
suppression motion. We also conclude that the trial court's error was not harmless
in light of the facts of this case. N.C.G.S. § 15A-1443 (2001)
provides in part:
A defendant is prejudiced by errors . . . when
there is a reasonable possibility that, had
the error in question not been committed, a
different result would have been reached at
the trial out of which the appeal arises. The
burden of showing such prejudice under this
subsection is upon the defendant.
In the present case, defendant was charged and convicted of
possession of cocaine. Clearly, if the cocaine were suppressed,
there is a reasonable possibility that a different result would
have been reached. Therefore, we conclude the trial court's
failure to properly determine whether defendant had standing to
challenge on Fourth Amendment grounds the law enforcement officers'
entry into the residence constituted reversible error which denied
the defendant a fair trial conducted in accordance with law.
N.C.G.S. § 15A-1447(a) (2001). Accordingly, defendant is entitled
to a new trial at which the admissibility of the evidence seized
from defendant will be determined in accordance with the law as
[F]aced with the appraisal that the case had
been tried in the main upon an unsound
principle of law, we remanded it for another
hearing or a new trial, as is the rule in this
jurisdiction. Where a case is tried under a
misapprehension of the law, the practice is to
remand it for another hearing.
State v. Williams
, 224 N.C. 183, 189, 29 S.E.2d 744, 748 (1944)
For the reasons discussed above, the defendant's conviction is Reversed and the case Remanded for a New Trial.
Judges MARTIN and TYSON concur.
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