North Carolina Supreme Court Upholds Warrantless Seizure of Drugs on a Home’s Curtilage

The Fourth Amendment protects the home as well as its curtilage, which is defined as the area immediately surrounding the home and associated with it. Recently, the North Carolina Supreme Court in State v. Grice, 2015 WL 304075 (Jan. 23, 2015), was confronted with a Fourth Amendment issue involving the curtilage. The court held, reversing the court of appeals, ___ N.C. App. ___, 733 S.E.2d 354 (2012), that officers who were validly on the curtilage of a residence to conduct a knock and talk did not violate the Fourth Amendment when they saw marijuana plants 15 yards away on the curtilage and warrantlessly seized them.

Facts. The Johnston County Sheriff’s Office received an anonymous tip that defendant Grice was growing marijuana at his rural residence. Two detectives with extensive training in narcotics investigations, including identification of marijuana, were dispatched to the residence to conduct a knock and talk. After entering the driveway, the detectives parked behind a white vehicle there. The front door was inaccessible, covered with plastic, and obscured with furniture. They noticed that the driveway led to a side door, which appeared to be used as the main entrance. When they parked their vehicle, two dogs ran to their car and started barking. Detective Allen remained in the driveway to calm the dogs while Detective Gussman knocked on the side door, but no one answered. From the driveway, Allen noticed several buckets at a distance of about 15 yards and recognized marijuana plants growing in three of them. Allen called Gussman over to the driveway to see the plants, and Gussman agreed that they were marijuana. After calling a supervisor for advice, they walked over to the plants, seized them, and returned to the sheriff’s office to obtain a search warrant for the residence, which was executed the next day.

Court’s analysis of plain view doctrine; alternative rulings. The court’s analysis went as follows. The 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. Thus, the view of the plants was not a search under the Fourth Amendment. However, because the defendant had a Fourth Amendment possessory interest in the plants, did the plain view doctrine authorize their warrantless seizure?

The Fourth Amendment’s plain view doctrine is composed of three elements. First, were the officers lawfully in a position to make a plain view observation? The court noted that the officers were lawfully in the defendant’s driveway to conduct a knock and talk, a lawful procedure for which there is an implicit license for a visitor to approach the entrance of a home. Florida v. Jardines, 133 S. Ct. 1409 (2013); Kentucky v. King, 131 S. Ct. 1849 (2011); State v. Smith, 346 N.C. 794 (1997).

Second, was the incriminating character of the plants immediately apparent—that is, was there probable cause to believe the plants were marijuana? The defendant did not contest the validity of the officers’ testimony that they instantly recognized the plants as marijuana.

The court noted a statutory restriction (G.S. 15A-253), not imposed by the Fourth Amendment (Horton v. California, 496 U.S. 128 (1990)), that the discovery of evidence in plain view must be inadvertent. The court stated that the discovery was inadvertent in this case because the defendant did not allege the officers wandered the property looking for the marijuana before seeing it. [For a criticism of the application in appellate cases of this statute to a non-search warrant context, see Arrest, Search, and Investigation in North Carolina, 180 n. 45 (4th ed. 2011).]

Third, did the officers have a lawful right of access to the object to seize it? The court held that they did, based on two independent grounds. Under the first ground, the court ruled that the knock and talk constituted the initial “lawful right of access” (citing Horton) and the “presence of the clearly identifiable contraband justified walking further into the curtilage.” The court rejected the defendant’s argument that a justified presence in one part of the curtilage (the driveway and side door) did not allow the seizure of contraband in plain view located in another portion of the curtilage (the side yard; the court assumed for deciding this issue that the plants were in the curtilage). The court noted that the officers did not cross or open any fence or barrier, nor did they use the sighting of the plants as an excuse to conduct a general search of the rest of the property. Although the court’s ruling is supportable, consider the ruling in Florida v. Jardines, 133 S. Ct. 1409 (2013), based on the newly-revitalized physical intrusion theory of the Fourth Amendment (see also the GPS case, United States v. Jones, 132 S. Ct. 945 (2012)), that the use of a drug sniffing dog on the porch of a house during a knock and talk violated the Fourth Amendment because the officers and the dog physically entered and occupied the area to engage in conduct (the dog’s detection of odors from the residence) not explicitly or implicitly permitted by the homeowner. A possible extension of the Jardines ruling is while defendant Grice explicitly or implicitly permitted the officers to enter his driveway and walk to his residence entrance as any private visitor may do, he did not grant permission for an area 15 yards away on his curtilage—and therefore the officers’ extension of their presence on the curtilage was a warrantless physical intrusion constituting an unreasonable search.

The Grice court’s alternative Fourth Amendment ground to uphold the officers’ warrantless 15-yard walk to the marijuana plants and seizure of the plants was a traditional one—exigent circumstances. The court noted that the plants were small and easily transportable. There was a passenger vehicle in the driveway. The fact that no one came to the door did not establish that no none was at home, but simply that no one was willing to answer the door. A reasonable officer might believe that the presence of the vehicle and the two dogs roaming the unfenced yard indicated that someone was at home and simply remaining inside. The court rejected defendant’s suggestion that one officer could have remained to secure the yard while the other officer left to obtain a search warrant, because this plan could have exposed the remaining officer to unknown danger.

Officers who are unsure of their authority to enter and seize property on the curtilage should consider consulting a supervisor or a legal advisor. The issues are often complex, and good advice may prevent the commission of a Fourth Amendment violation.

Other blog posts about curtilage. Jeff Welty discussed multi-unit dwellings and curtilage here and here, going to the back door here, video surveillance cameras here, and Florida v. Jardines here. Shea Denning discussed an appellate case about a parking lot and curtilage here.