The question in the title of this post is an oversimplified version of the issue addressed by the court of appeals last week in State v. Bailey, __ N.C. App. __, __ S.E.2d __, 2019 WL 3925864 (Aug. 20, 2019). But it isn’t oversimplified by much, and the appellate division may be inching closer to answering the question in the affirmative. Continue reading
Tag Archives: bailey
When a Person Sells Drugs Away from His or Her Home, Does that Provide Probable Cause to Search the Person’s Home?
This post provides summaries of the opinions of the North Carolina Court of Appeals published on August 20, 2019.
My Girlfriend’s AK-47
The court of appeals just reversed a defendant’s conviction for possession of a firearm by a convicted felon. It’s a case with interesting facts that raises questions about whether the owner or the driver of a vehicle is responsible for its contents.
State v. Bailey began when two Roxboro officers heard several gunshots at an apartment complex. Responding to the scene, one of the officers saw a car leaving the area. The officer stopped the car. The defendant was in the passenger seat, and his girlfriend was driving. The officer asked whether there were any weapons in the car, and the defendant said that there was a gun in the backseat. The gun turned out to be an AK-47 semiautomatic rifle. It was warm, as if it had recently been fired.
Additional relevant facts include the following:
- “[T]he rifle was registered to” the defendant’s girlfriend. As an aside, although this statement may reflect the trial testimony, North Carolina does not have a registry for long guns, so I am not sure exactly what it means.
- The car was titled in the defendant’s name. However, the defendant testified at trial that although he had helped buy the car, his girlfriend used and controlled it.
- A shell casing that was compatible with the rifle was found in the apartment complex.
- The defendant testified, and denied possessing or firing the rifle. He claimed that he and his girlfriend left the complex upon hearing gunshots.
- A gunshot residue test performed on the defendant was inconclusive.
- The defendant’s fingerprints were not found on the rifle.
The defendant was charged with, and convicted of, possession of a firearm by a convicted felon, but the court of appeals ruled that the State’s evidence was insufficient to support the conviction.
It reasoned that the defendant was not in actual possession of the gun, so the State needed to prove constructive possession. Further, because the defendant was not in sole control of the car, the State needed to offer “other incriminating circumstances” beyond the defendant’s presence there. And the court found no such circumstances, noting the lack of physical evidence tying the defendant to the gun and concluding that the defendant’s knowledge of the gun’s presence was not enough to render him in possession of it.
The court’s conclusion is in line with State v. Alston, 131 N.C. App. 514 (1998), a similar case in which officers found a gun in a car with a female driver and a male passenger. The gun in that case was registered to the driver, the car was not registered to either occupant, and the court of appeals found that there was insufficient evidence that the passenger was more than merely present alongside the gun.
On the other hand, recall State v. Mitchell, __ N.C. App. __, 735 S.E.2d 438 (2012), a case I blogged about here. In that case, the court of appeals affirmed a male driver’s conviction for possessing a gun found in the female passenger’s purse inside the glove compartment of the vehicle.
All of these are close cases, and reasonable minds might differ about which set of facts is the strongest for the State. In each case, the court of appeals emphasized that the driver of a vehicle controls the vehicle and is responsible for its contents. In Bailey, though, the registered owner of the vehicle was inside the car, and one could argue that in that setting, ultimate authority rests with the owner. In drug cases, the court has indicated that ownership of a vehicle provides a measure of control. See, e.g., State v. Hudson, 206 N.C. App. 482 (2010) (stating that “[i]n car cases . . . ownership [is] sufficient” to create an inference of constructive possession and observing that “courts in this State have held consistently” that both drivers and owners of vehicles have the power to control the vehicles’ contents). And in the context of standing to object to an allegedly unlawful search of a vehicle, ownership of a vehicle is generally sufficient to confer standing. Cf. Rakas v. Illinois, 439 U.S. 128 (1978) (ruling that defendants lacked standing because they were “passengers occupying a car which they neither owned nor leased”). In fact, ownership may be more significant than who is driving in the Fourth Amendment context. Cf. State v. Hodges, 195 N.C. App. 390 (2009) (holding that the driver of a car lacked standing to object to a search because he “claimed no ownership interest in the vehicle” and deferred to the passenger regarding authority to search the vehicle).
The court’s opinion in Bailey was unanimous, so we’ll have to wait and see whether the State chooses to seek further review, and if so, whether the supreme court is interested in the issue.
U.S Supreme Court Declines to Extend Officer’s Detention Authority Incident to Execution of Search Warrant Beyond Immediate Vicinity of Premises
In Michigan v. Summers, 452 U.S. 692 (1981), the U.S. Supreme Court upheld an officer’s authority under the Fourth Amendment to detain—without reasonable suspicion or probable cause—people at a residence where a search warrant is being executed. The defendant in Summers was detained on a walkway leading down from the front steps of a house that was to be searched for drugs pursuant to a search warrant. The Court recognized three important interests, considered together, that justified the detention: (1) officer safety; (2) facilitating the completion of the search by preventing those inside from interfering with the officers; and (3) preventing flight if incriminating evidence was found.
Last week, the U.S. Supreme Court ruled in Bailey v. United States that Summers did not authorize officers, who saw defendant Bailey leaving in a vehicle from the premises where a search warrant was about to be executed for a gun involved in a drug purchase, to delay making a detention until he was about a mile away. The Court stated that the Summers ruling and its reasoning was limited to people in the immediate vicinity of the premises to be searched, which clearly did not include where Bailey was stopped. The Court reasoned that officer safety did not support the automatic detention of a person who was not in the immediate vicinity: officers have the authority to post officers near the premises to bar or detain anyone attempting to enter. If officers find that it would be dangerous to detain a departing person in front of the premises (possibly alerting anyone inside), they are not required to stop that person. Concerning facilitating the completion of the search, Bailey’ presence a mile away was not a threat. If he had returned, officers could clearly detain him. The need to prevent flight if incriminating evidence was found simply did not apply to Bailey, who was some distance from the premises. The Court concluded that Bailey’s detention under the Summers ruling was not reasonable under the Fourth Amendment.
The Court left for future cases the meaning of “immediate vicinity.” It stated that courts can consider a number of relevant factors and specifically listed: (1) the lawful limits of the premises (presumably this means the actual property lines); (2) whether the person was within the line of sight of his or her dwelling; and (3) the ease of reentry from the occupant’s location.
The Court noted that if officers elect to defer a detention until a suspect or departing occupant of the premises leaves the immediate vicinity, the legality of a detention under the Fourth Amendment will be governed by other standards, such an investigative stop based on reasonable suspicion or an arrest supported by probable cause. Factors to consider are: (1) information already in the officers’ possession before the search warrant was obtained; (2) any incriminating acts by the person leaving the premises such as appearing to be armed or possessing the evidence being sought; and (3) any information communicated to the detaining officers from those conducting the search of the premises. The Court mentioned that searching officers in Bailey had radioed the detaining officers of their discovery of guns and drugs in the premises, and this information may have provided probable cause to arrest.
The federal district court in Bailey had ruled that the detention was valid under Summers, but if it was not valid, the detention was supported by reasonable suspicion. The federal court of appeals decided that the detention was valid under Summers without considering the alternate reasonable suspicion ground. Now that the Supreme Court has reversed on the Summers ground (it did not consider the reasonable suspicion issue), the court of appeals must decide the reasonable suspicion ground. So whether Bailey will ultimately win a reversal of his conviction remains to be seen.
As a result of Bailey, officers planning to execute a search warrant need to consider how to respond if they interact with people who are not within the immediate vicinity of the premises. If they detain or arrest someone there, they must remember that reasonable suspicion or probable cause will be required.