in the Court of Appeals 19 April 2018.
by defendant from judgment entered 13 February 2017 by Judge
Beecher R. Gray in Durham County No. 16 CRS 51870 Superior
Attorney General Joshua H. Stein, by Assistant Attorney
General Martin T. McCracken, for the State.
Patterson Harkavy LLP, by Paul E. Smith, for
case presents the question of whether the Fourth Amendment
permits law enforcement officers to conduct a knock and talk
at the back door of a residence rather than at the clearly
visible and unobstructed front door. Kareem Stanley
("Defendant") appeals from his convictions for
trafficking in heroin by transportation; trafficking in
heroin by possession; possession with intent to manufacture,
sell, or deliver a Schedule I controlled substance;
possession with intent to sell or deliver a Schedule II
controlled substance; and possession of drug paraphernalia.
On appeal, he argues that the trial court erred by denying
his motion to suppress evidence of the drugs seized from his
person as a result of an illegal knock and talk. Because we
conclude that (1) the knock and talk was unconstitutional;
and (2) the evidence obtained by the officers would not have
been discovered but for the knock and talk, we reverse the
trial court's denial of his motion to suppress.
and Procedural Background
2015, Investigator Joseph Honeycutt was working for the
Special Operations Division of the Durham Police Department.
In December 2015, a confidential informant contacted the
police department stating that he had purchased heroin from a
person at Apartment A at 1013 Simmons Street ("Apartment
A") in Durham. The informant identified James Meager as
the person from whom he had bought heroin at Apartment A.
Honeycutt subsequently became aware that Apartment A belonged
to an individual named James Hazelton. Investigator Honeycutt
also learned that Meager did not actually live at the
Investigator Honeycutt used the informant to conduct
controlled drug sales involving Meager at Apartment A on
three separate occasions. On 8 December 2015, Investigator
Honeycutt observed the informant walk up the driveway to the
back door of the apartment in order to purchase heroin from
Meager. On 16 December 2015, Investigator Honeycutt once
again used the informant to buy heroin from Meager at the
back door of Apartment A. Finally, on a third occasion,
Investigator Honeycutt observed the informant purchase heroin
from the back door of the apartment.
March 2016, Investigator Honeycutt, Investigator Thomas
Thrall, and four to five other members of the Durham Police
Department approached Apartment A in order to locate Meager
and serve him with a warrant for his arrest. They were
dressed in protective vests with the word "Police"
written across their chests. The officers did not possess a
warrant to search the apartment.
the officers' arrival at the apartment, they immediately
walked down the driveway that led to the back of the
apartment, and Investigator Honeycutt knocked on the back
door. In response to an inquiry from a person inside
Apartment A as to who was knocking, Investigator Honeycutt
who had been staying with Hazelton as a houseguest at
Apartment A from January through March of 2016, answered the
door, and Investigator Honeycutt "immediately detected .
. . the odor of marijuana." He stepped into the
apartment and began conducting a protective sweep of the
premises. One or two other officers also entered Apartment A
to assist him. During the protective sweep, the officers
located Hazelton and handcuffed him. A "crack pipe"
was discovered on the nightstand in one of the bedrooms of
the residence. Investigator Honeycutt also observed a handgun
laying on a couch in the living room.
meantime, Investigator Thrall waited with several other
officers outside the back door. At some point, he directed
Defendant to accompany him outside. After Defendant complied
with his request, Investigator Thrall told him to take his
hands out of his pockets and asked if he was carrying any
weapons. Defendant denied possessing any weapons but kept his
hands in his pockets. Investigator Thrall asked Defendant a
second time to remove his hands from his pockets, and
Defendant once again failed to do so.
point, Investigator Thrall pulled Defendant's hands out
of his pockets, placed them on his head, and informed
Defendant that he was going to search him for safety reasons.
He then proceeded to conduct a pat-down of Defendant's
person. While patting down Defendant's right pants
pocket, he felt a bulge. He asked Defendant what was in the
pocket, and Defendant responded that it was "some
Vaseline." Investigator Thrall then patted down
Defendant's left pants pocket and felt a larger bulge. He
asked Defendant what was in that pocket, and Defendant
replied that it was cocaine.
point, Investigator Thrall handcuffed Defendant and reached
into Defendant's pockets to retrieve the items contained
therein. Inside Defendant's left pants pocket,
Investigator Thrall discovered a "plastic baggy that
contained some small yellow baggies with a white substance
that [he] believed . . . to be cocaine." He also found
three smaller tan baggies that appeared to contain heroin.
Investigator Thrall retrieved a small bag of marijuana from
Defendant's right pants pocket.
Defendant had been searched, Investigator Honeycutt returned
to the back door with Hazelton in handcuffs. He informed
Investigator Thrall that he was going to obtain a search
warrant for the apartment. Investigator Thrall and the other
officers then waited outside Apartment A with Hazelton and
Defendant, both of whom remained handcuffed. Once a search
warrant was obtained, the officers searched the apartment and
found a digital scale near the crack pipe on the nightstand.
was arrested and charged with trafficking in heroin by
transportation; trafficking in heroin by possession;
possession with intent to manufacture, sell, or deliver a
Schedule I controlled substance; possession with intent to
sell or deliver a Schedule II controlled substance; and
possession of drug paraphernalia. On 10 February 2017,
Defendant filed a motion to suppress all of the evidence that
had been seized from his pockets on the ground that the
seizure violated his rights under the Fourth Amendment. A
hearing was held before the Honorable Beecher R. Gray in
Durham County Superior Court on 13 February 2017, and the
trial court denied Defendant's motion.
same day, Defendant pled guilty to all of the charged
offenses but expressly reserved his right to appeal the
denial of his motion to suppress. The trial court
consolidated all five offenses and ...