The United States Supreme Court has stated that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” and that “searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. United States, 445 U.S. 573, 585-86 (1980). So in an ordinary case officers will need an arrest warrant to enter a person’s house to make an arrest of the resident or a search warrant to search for and seize property there. There are a few exceptions to the warrant requirement: (1) obtaining consent to enter from an appropriate person, (2) probable cause and exigent circumstances, (3) making a protective sweep of a home for dangerous people when an officer is there to make an arrest, (4) entering a home to seize weapons for self-protection, and (5) entering a home to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. See generally Arrest, Search, and Investigation in North Carolina (4th ed. 2011) at pages 66-73 (entering premises to arrest), 217-18 (probable cause and exigent circumstances), 232-33 (entry or search of home to render emergency assistance or for self-protection). A new edition of this book will be available this coming winter, possibly as soon as December 2016.
The recent North Carolina Court of Appeals ruling in State v. Marrero (August 2, 2016) dealt with the authority to enter a home with exigent circumstances to conduct a protective sweep for officer safety and to prevent the destruction of evidence, and it is the subject of this post.
Facts. An officer had reliable information from an informant and confirmed by the officer that a home invasion robbery would take place that night at a certain residence by two suspects who had attempted to obtain an AK-47 assault rifle and would be in a small red Hyundai vehicle. Monitoring officers saw such a vehicle drive past the house twice. Meanwhile, two officers went to the home to conduct a knock and talk for drug activity. After knocking and announcing loudly the name of their agency, there was no response. After knocking once more, the defendant opened the door. Only two or three minutes elapsed from the initial knock to the door’s opening.
When the door opened, an officer immediately smelled unburned marijuana from inside the home. The officer attempted to explain that the officers were there to investigate potential drug activity and protect against a home invasion. Based on the marijuana odor, the officer decided to detain the defendant, perform a protective weep of the home, and apply for a search warrant. A search with a warrant discovered 149 living marijuana plants and 20 pounds of vacuum-sealed marijuana.
The trial court denied the defendant’s motion to suppress the evidence seized in his home. It concluded that the defendant was not illegally seized during the knock and talk, and exigent circumstances justified the officers’ warrantless entry into the defendant’s home. The defendant was convicted of several drug offenses and appealed
Rulings. The North Carolina Court of Appeals first considered and then rejected the defendant’s contention that he was illegally seized by being coerced into opening the front door during the knock and talk. The court reviewed the facts and noted that the officers did not attempt to open the front door themselves or demand that the door be opened in an effort to engage the defendant. Instead, they knocked twice and the defendant eventually opened the door himself. Similar to the ruling in State v. Isenhour, 194 N.C. App. 539 (2008), the officers did not make a show of authority or engage in intrusive conduct that constituted a seizure of the defendant.
After rejecting the defendant’s argument that he was seized by the knock and talk, the court considered and also rejected the defendant’s argument that the warrantless entry of his home was not supported by exigent circumstances (the defendant did not challenge the existence of probable cause to enter).
The defendant argued that one officer’s paperwork showed that he had answered “no” to a question whether the search was based on exigent circumstances. The court noted that a witness’s statement about a question of law is not binding on a court.
The court stated that the officers were unaware when they arrived at the residence whether the home invasion robbery had occurred, was in progress, or was imminent. Thus, an officer could have reasonably believed that there was an undiscovered dangerous person in the defendant’s home with an AK-47. The officers’ need to ensure that no one remained in the residence with that weapon constituted an exigent circumstance. Thus, a protective sweep for office safety was reasonable.
The ready destructibility of contraband (in this case, marijuana) and the belief that it might be destroyed may under certain circumstances permit a warrantless entry. In this case, the trial court had found that the officers had been advised that the defendant’s residence contained “a marijuana plantation” with “at least 30 pounds of marijuana inside.” With this fact and the strong marijuana odor when the defendant opened the door, it was objectively reasonable to conclude that the defendant would have destroyed evidence if the officers left the scene to obtain a search warrant. Thus, the court of appeals ruled that the trial court did not err in concluding that exigent circumstances warranted a protective sweep for officer safety and to ensure that the defendant and others would not destroy evidence.
General comments. Appellate courts carefully scrutinize the standard of probable cause and exigent circumstances to enter a home without a warrant to prevent the destruction of evidence. To read some of the cases, see pages 309-313 of Arrest, Search, and Investigation in North Carolina (4th ed. 2011).
One should also remember that even if a warrantless entry satisfies the standard, once officers have secured the home, a search warrant normally must be obtained to conduct further searches and seizures of evidence unless consent to search is properly obtained or evidence would be destroyed unless immediate action is taken (for example, seizing drugs from a flushing toilet).
Knock and talk, which was a subsidiary issue in Marrero, generally is a legitimate law enforcement activity. But there are limitations, such as officers taking a drug dog with them when knocking at the residence. See Florida v. Jardines, 133 S. Ct. 1409 (2013) (officers’ use of a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home was a “search” within the meaning of the Fourth Amendment). Or going to the back door to knock. See Jeff Welty, Going to the Back Door (UNC School of Government, Oct. 22, 2012).
While I would agree that drug houses are high-probability targets of home invasion-style robberies, I have additional questions and concerns regarding this opinion.
First, the opinion states that the officer who received the tip was able to “confirm that it was reliable,” but the opinion does not reveal the confirmatory information. What was the confirmatory information? The opinion leaves the reader to speculate as to the nature of the confirmatory information. It needs to be in the opinion if confirmation of the tip is a concern for the Court.
Second, the officers at the location “corroborated” the tip that a red Hyundai would be used by the robbers by watching it pass the target residence twice. Yet the officers chose to target the house and not the red Hyundai?
An armed, home invasion carries with it charges for first degree burglary (if at night), robbery with a dangerous weapon and worse, including kidnapping, felonious assault and murder. Each of those charges alone carry mandatory prison sentences. The opinion reports that eight tactically-armed officers reported to the scene to conduct a knock and talk at the house. The opinion does not explain why some of these same officers were not dispatched to stop a red Hyundai purportedly containing violent criminals and instead were positioned around a house, which turned out to have an in-door farming operation that is legal in several States. In short the opinion does not explain why the police chose to target the farmer over the armed robbers when the particulars of the tip involved the armed robbers.
Speaking of the armed robbers, the opinion does not explain how the officers lost sight of the red Hyundai that passed the target house twice. The trial court apparently accepted as fact the officers’ concern that a robbery may have been in progress at the house, yet there is no explanation as to how they let that happen if they saw the Hyundai pass the house twice.
One could conclude from this opinion that the true target of the police investigation was the house and not the robbers. A grow operation is often not a site used for the street-level sale of marijuana, which makes it difficult to infiltrate with an informant/purchaser. Making the grow house a target for a robbery would give the police the exigent circumstances it needs to enter without consent and without a warrant. It also would explain why the police lost contact with the red Hyundai. The red Hyundai was a red herring.
One could also conclude that the grow house was set up by a rivals, who called in the tip to eliminate competition. The occupants of the red Hyundai could have been unarmed and “lost” if stopped by the police. But since the police did not stop the red Hyundai, one will never know the identity of its occupants, their connection to the people and events in the case and their motives, if any.
Red Hyundai or no red Hyundai, robbery tip or no robbery tip, the officers could have walked up to the house for a knock and talk and as soon as the occupant opened the door and the odor of marijuana was detected, everything that followed was done by the book. There’s no logical reason for a fairly straightforward interaction to be complicated by information about a potential robbery if, in fact, no such threat existed.
The court stated that the officers were unaware when they arrived at the residence whether the home invasion robbery had occurred, was in progress, or was imminent. Thus, an officer could have reasonably believed that there was an undiscovered dangerous person in the defendant’s home with an AK-47. The officers’ need to ensure that no one remained in the residence with that weapon constituted an exigent circumstance. Thus, a protective sweep for office safety was reasonable. The protective sweep was not necessary if in fact they had found out that the red Hyundai was not connected or if they had search the Hyundai and sound the AK47.