Heard in the Supreme Court November 19, 2013
Roy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney General, for the State-appellant.
Staples S. Hughes, Appellate Defender, and Jon H. Hunt and Benjamin Dowling-Sendor, Assistant Appellate Defenders, for defendant-appellee.
MARTIN, Chief Justice. Justice BEASLEY joins in this dissenting opinion.
[367 N.C. 754] On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, __ N.C.App. __, 735 S.E.2d 354 (2012), vacating a judgment entered on 14 December 2011 by Judge James G. Bell in Superior Court, Johnston County, and remanding for a new trial. Heard in the Supreme Court on 19 November 2013.
MARTIN, Chief Justice.
Defendant grew marijuana in view of his driveway, leaving three potted plants exposed to any visitor who might approach his residence. Two detectives did just that, and when they saw the plants, they seized them before returning the following day with a warrant to search defendant's home. At trial, the court denied defendant's motion to suppress the evidence of the seized plants. On appeal, the Court of Appeals reversed the trial court. We now reverse the decision of the Court of Appeals.
On 5 May 2011, the Johnston County Sheriff's Office received an anonymous tip that Jerry Grice, Jr. was growing marijuana at a particular residence on Old School Road. In response, the Sheriff's Office dispatched two detectives, Guseman and Allen, to conduct a knock and talk investigation at the address. Both detectives had extensive training in narcotic investigations, including training in identifying marijuana. The property was located in a rural area, and the house was situated along with several outbuildings approximately one-tenth of a mile down a dirt path. After driving up the driveway, the detectives parked behind a white vehicle on the right side of the house.
The front door of the house was inaccessible, covered with plastic, and obscured by furniture. However, the officers noticed that the driveway led to a side door, which appeared to be used as the main entrance. Once the detectives had parked, two dogs ran
up to their car and started barking. Detective Allen remained in the driveway to [367 N.C. 755] calm the dogs while Detective Guseman knocked on the side door. No one answered his knocks. From the driveway, Detective Allen noticed several buckets at a distance of approximately fifteen yards. Due to his training, Detective Allen recognized the plants growing in three of the buckets as marijuana. Detective Allen called Detective Guseman over to the driveway to observe the plants. Also based on his training, Detective Guseman identified the plants as marijuana without approaching the buckets.
After identifying the plants from the driveway, the officers walked to the plants and telephoned Captain Fish to determine how best to proceed. The Captain instructed Detectives Guseman and Allen to seize the plants and return to the Sheriff's Office to obtain a search warrant. A search warrant for the residence was executed the next morning. Detectives from the Sheriff's Office returned to the residence and arrested defendant, who admitted that the plants seized the previous day were his.
Defendant was subsequently indicted for manufacturing a controlled substance. A second charge was brought but later dropped by the State and is not relevant to our discussion here. Defendant filed a motion to suppress evidence of the seized marijuana plants, claiming discovery of the plants was the product of an illegal search and seizure. The motion was denied. At trial, defendant failed to object to the introduction of the plants on this constitutional basis. The jury unanimously found defendant guilty, and the court sentenced him to a suspended term of six to eight months with supervised probation. Defendant appealed.
The Court of Appeals reversed, holding that " the trial court erred in its conclusion that no Fourth Amendment violation resulted from the seizure [of the plants]." State v. Grice, __ N.C.App. __, __, 735 S.E.2d 354, 358 (2012). The court reasoned that admitting the State's evidence in this case would make it " difficult to articulate a limiting principle such that 'knock and talk' investigations would not become a pretense to seize any property within the home's curtilage." Id. at __, 735 S.E.2d at 358. The court further reasoned that " the trial court's finding '[t]hat this seizure was to prevent [the plants'] destruction' is not supported by competent evidence in the record." Id. at __, 735 S.E.2d at 359. The court thus held that " 'exigent circumstances' cannot be a justification for this warrantless seizure." Id. at __, 735 S.E.2d at 359. The court concluded its opinion by reasoning that if the evidence of the plants had properly been suppressed, [367 N.C. 756] " the jury probably would have reached a different result" and thus, plain error occurred. Id. at __, 735 S.E.2d at 359. We reverse.
The Fourth Amendment protects " [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. " The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991) (citation omitted). The protections against unreasonable searches and unreasonable seizures are distinct from one another--" [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 S.Ct. 2301, 2306, 110 L.Ed.2d 112 (1990) (citation omitted).
When considering whether a warrantless search was unreasonable, the inquiry focuses on whether an individual has " 'manifested a subjective expectation of privacy in the object of the challenged search,' and 'society [is] willing to recognize that expectation as reasonable.'" Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 2042-43, 150 L.Ed.2d 94 (2001) (alteration in original) (quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986)). Privacy expectations are highest in one's home. See Florida v. Jardines, __ U.S. __, __, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013).
When law enforcement observes contraband in plain view, no reasonable expectation of privacy exists, and thus, the Fourth Amendment's prohibition against unreasonable
warrantless searches is not violated. Ciraolo, 476 U.S. at 213-15, 106 S.Ct. at 1812-14. Instead, the Fourth Amendment analysis must consider whether a subsequent warrantless seizure of the items left in plain view was reasonable. That is the case with which we are presented. Here, defendant had no privacy interest in the marijuana plants left in plain view of his driveway, where any member of the public coming to his door might have seen them. When there is no privacy interest, there can be no search under the Fourth Amendment. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993).
We are left then to examine whether the seizure of the plants violated defendant's possessory interest in them, thereby running afoul of the Fourth Amendment. While the general rule is that warrantless seizures are unconstitutional, a warrantless seizure of an item may be justified as reasonable under the plain view doctrine, so long as three elements are met: First, " that the officer did not violate the Fourth Amendment [367 N.C. 757] in arriving at the place from which the evidence could be plainly viewed" ; second, that the evidence's " incriminating character . . . [was] 'immediately apparent'" ; and third, that the officer had " a lawful right of access to the object itself." Horton, 496 U.S. at 136-37, 110 S.Ct. at 2308 (internal citations omitted); accord State v. Virgil, 276 N.C. 217, 227, 172 S.E.2d 28, 34 (1970). The North Carolina General Assembly has additionally required that the discovery of evidence in plain view be inadvertent. State v. Mickey, 347 N.C. 508, 516, 495 S.E.2d 669, 674 (citing N.C.G.S. § 15A-253 (1988)), cert. denied, 525 U.S. 853, 119 S.Ct. 131, 142 L.Ed.2d 106 (1998). The plain view doctrine represents the principle that " [t]he warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment ." Dickerson, 508 U.S. at 375, 113 S.Ct. at 2137 (citations omitted); see also Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 1541, 75 L.Ed.2d 502 (1983) (plurality) (" [R]equiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a needless inconvenience." ) (citation and internal quotation marks omitted).
Regarding the first element, the officers in this case were present in defendant's driveway to perform a knock and talk investigation. This matters because " [i]t is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." Horton, 496 U.S. at 136, 110 S.Ct. at 2308. Notably, defendant does not contest that this procedure was lawful, for there is an " implicit license [that] typically permits the visitor to approach the home by the front path." Jardines, U.S. at __, 133 S.Ct. at 1415. Secondly, testimony from both officers establishes that, based on their training and experience, they instantly recognized the plants as marijuana. Defendant does not ...