Heard September 8, 2014
Counsel Amended January 7, 2015.
N.C. Court of Appeals. No. 13-81. Robert C. Hunter, Judge.
Martin T. McCrackenMr., Primary Attorney, Attorney at Law and Ms. Teresa M. Postell, Assistant Attorney General, N.C. DEPARTMENT OF JUSTICE, Raleigh, NC, for the Plaintiff-Appellant - State of North Carolina.
Staples S. HughesMr., Primary Attorney, Appellate Defender, Ms. Kathleen M. Joyce, Primary Attorney, Assistant Appellate Defender, N.C. APPELLATE DEFENDERS OFFICE, Durham, NC; and Mr. William Trippe McKenny, Primary Attorney, Attorney at Law, Salisbury, NC, for Defendant-Appellee - Miller, Michael Paul.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 746 S.E.2d 421 (2013), reversing judgments entered on 23 May 2011 by Judge Joseph N. Crosswhite in Superior Court, Rowan County, and remanding the case to the trial court to resolve a conflict in the evidence relating to defendant's motion to suppress and for additional proceedings. Heard in the Supreme Court on 8 September 2014.
[367 N.C. 703] HUNTER, Justice.
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 to the United States Constitution or Article I, Section 20 of the North Carolina Constitution.
In May 2009, the Spencer Police Department received a burglar alarm report indicating a possible break-in at defendant Michael Paul Miller's residence. Officer Brian Hill was the first officer to arrive at the scene. Officer Hill surveyed the exterior of the home and noticed a broken window on the back side of the house having an opening large enough for a person to gain entry into the residence. The doors of the residence were locked. Concerned that an intruder was in the house, Officer Hill called for backup and the assistance of a canine officer to perform a protective sweep.
Shortly thereafter, additional backup arrived, including Officer Jason Fox and his police dog, " Jack." Officer Hill explained the situation to Officer Fox and the two began discussing how to proceed next. As the officers were preparing to search the home, defendant's mother, Ms. Gwen Weant, arrived at the scene with a key to the house. She gave Officer Hill and Officer Fox the key, as well as permission to search the premises for intruders.
Officer Fox began the search by deploying Jack inside the house. At Officer Fox's command, Jack began methodically working his way through the house searching for intruders. Jack went from room to room until he reached a side bedroom, where he remained. Officer Fox, fearing for Jack's safety, entered the house and went to the bedroom to investigate. Jack was sitting on the bedroom floor staring at a dresser drawer, thereby alerting Officer Fox to the presence of narcotics. Officer Fox opened the drawer and discovered a brick of marijuana. He then called for Officer Hill, who also observed the drugs. Leaving the brick of marijuana undisturbed, Officer Fox, Officer Hill, and Jack continued their protective sweep of the house. As Jack [367 N.C. 704] neared the back of the house, he stopped in front of a closet at the end of the main hallway and began barking at the closet door, this time alerting Officer Fox to the presence of a human suspect behind the closet door. 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. Officer Fox and Officer Hill drew their firearms and opened the closet door, revealing two large black trash bags on the closet floor. No intruder was found in the closet.
Each officer characterized the ensuing events somewhat differently at a later hearing held on defendant's motion to suppress. Officer Hill testified that as soon as they opened the closet door, he could see marijuana in the opening of the trash bags and that the marijuana was plainly visible. Officer Fox initially testified that he could see what appeared to be marijuana inside a partially opened bag and that he did not manipulate the bag in any way at that time. But later, on cross-examination he testified that as soon as they opened the closet door, Jack " immediately" stuck his nose inside one of the trash bags and nuzzled the bag open; Officer Fox then indicated that the marijuana was visible to him only after Jack nuzzled the bag open.
The officers did not immediately seize the marijuana. Instead, they finished their protective sweep of the house, still finding no intruders, and locked and secured the residence. Defendant arrived at the scene shortly thereafter, and, after questioning from Officer Hill, disclosed that a gun was in his vehicle. The handgun was immediately seized. Based on the information gathered by Officers Hill and Fox during their initial sweep, Sergeant Eric Ennis, an investigator for the Spencer Police Department, applied for a search warrant to recover the drugs observed in defendant's residence. When the search warrant arrived, the officers reentered defendant's home and seized the drugs.
Defendant was subsequently indicted on charges of possession with the intent to sell or deliver marijuana, maintaining a dwelling house for keeping, storing, using or selling marijuana, and carrying a handgun concealed in his vehicle. At a preliminary hearing, defendant moved to suppress all evidence seized during the search of his house, arguing that the search and seizure violated his rights under the Fourth Amendment to the United States Constitution and Article I, Section 20 of the North Carolina Constitution.
After considering the testimonies of Officer Hill, Officer Fox, and Sergeant Ennis, as well as other documentary exhibits offered into evidence, the trial court entered an order granting defendant's motion [367 N.C. 705] in part and denying the motion in part. With respect to the brick of marijuana seized from defendant's dresser drawer, the trial court found that " the officers deviated from the . . . search [for intruders] when they opened" the drawer. Consequently, the trial court found that defendant's constitutional rights were violated by that action and ordered that this evidence be suppressed; however, with respect to the marijuana seized from the trash bags in the hall closet, the trial court denied defendant's motion. The trial court recognized the conflict between the testimonies of Officers Hill and Fox regarding whether the marijuana was in plain view before Jack nuzzled into the trash bag, but, rather than resolving the conflict, summarily found that the discovery of the marijuana in the closet did not violate defendant's constitutional rights. Defendant entered an Alford plea of guilty to all charges while reserving the right to appeal the trial court's decision allowing the marijuana seized from the closet into evidence. Defendant then appealed the order and subsequent judgments to the Court of Appeals.
The Court of Appeals reversed the judgments and remanded the case to the trial court for further proceedings. State v. Miller, __ N.C.App. __, 746 S.E.2d 421 (2013). Citing Arizona v. Hicks, 480 U.S. 321, 324-25, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), the Court of Appeals concluded that " Jack was an instrumentality of the police, and his actions, regardless of whether they are instinctive or not, are no different than those undertaken by an officer. If he opened the bags and exposed the otherwise hidden marijuana, it would not be admissible under the plain view doctrine." Miller, N.C.App. at, 746 S.E.2d at 427. In reaching its holding, the Court of Appeals rejected persuasive precedent from two federal circuit courts of appeal that had rejected Fourth Amendment challenges by defendants under analogous factual circumstances. Id. at __, 746 S.E.2d at 426; see United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998); United States v. Lyons, 957 F.2d 615, 617 (8th Cir. 1992). But, because the trial court failed to resolve in its order whether the marijuana was in ...