State v Harris
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-14 NORTH CAROLINA COURT OF APPEALS Filed: 1 November 2011 STATE OF NORTH CAROLINA v. Mecklenburg County No. 09 CRS 209479 DONALD DEMETRIUS HARRIS (AKA HAKUM MUSTA BEY) Appeal by Defendant from judgment entered 17 June 2010 by Judge Jesse B. Caldwell in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 August 2011. Attorney General Roy A. Cooper, by General Marc X. Sneed, for the State. Assistant Attorney Winifred H. Dillon, for Defendant. BEASLEY, Judge. Donald Demetrius Harris (Defendant) appeals from a judgment entered in the Superior Court of Mecklenburg County on 17 June 2010, denying his motion to suppress. We affirm. On 23 June 2009, Officer Richard Canfield of the CharlotteMecklenburg Police Department was dispatched to assist animal control on a dog bite incident. When Officer Canfield arrived, he was informed that a black male with dreadlocks exited 231 Cox -2Avenue, picked up the dog in question, and drove it away from the scene in a gold Ford Fusion. the residence, he saw a gold As Officer Canfield approached Ford Fusion parked out front. Officer Canfield, accompanied by Officer Karen L. Dula, knocked on the door of the residence and Defendant answered. Officer Canfield asked Defendant several questions, including his name, whether he was the owner of the residence, and how many people were in the house with him. Defendant himself or answer any questions. refused to identify Officer Canfield smelled the odor of marijuana on Defendant, as well as coming from inside the residence. While Officers Canfield and Dula stood at the door of the house waiting for other officers, they were able to see into the interior of the house and they observed a woman turning the lights off in the house. In an effort to see the woman s action, both officers shined their flashlights into the interior of the house. When the house was illuminated, both officers believed they saw a rifle in a corner that was within four to five feet of the woman. Officer Canfield then observed the this woman leave the room. At point, Officer Canfield contacted his supervising sergeant and requested permission to secure the house and obtain a search warrant. A search was conducted pursuant to a search warrant and officers seized a .9 millimeter handgun, magazines, and ammunition. -3On 6 July 2009 Defendant was indicted for possession of a firearm by a felon. Defendant filed a motion to suppress the evidence and his statements. 17 June 2010. The hearing on the motion was held The trial court denied Defendant s motion to suppress, and Defendant pled guilty and specifically reserved his right to appeal the denial of his motion to suppress. Defendant s circumstances sole did not argument on exist justify to appeal is the warrantless search of the home by flashlight. that police exigent officers We disagree. Our Court s review of a denial of a motion to suppress is limited to a determination of whether the trial court's findings of fact are supported by the evidence and whether the findings of fact support the conclusions of law." State v. Tadeja, 191 N.C. App. 439, 443, 664 S.E.2d 402, 406-07 (2008) (internal quotation marks omitted). The Fourth Amendment to provides "[t]he right of the persons, houses, papers, and the United people to effects, States be Constitution secure in their against unreasonable searches and seizures, shall not be violated[.] U.S. Const. amend. IV. [A] Fourth Amendment search does not occur -- even when the explicitly protected location of a house is concerned - unless the individual 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. -4United States, 533 U.S. 27, 33, 150 L. Ed. 2d 94, 101 (2001) (internal quotation marks and citations omitted). Court has held Our Supreme that it is well established that protection under the Fourth Amendment only extends to those areas where an individual has a legitimate expectation of privacy, which has two components: expectation of (1) the privacy, person and (2) must the have an person's actual subjective expectation must be one that society deems to be reasonable." State v. McNeil, 165 N.C. App. 777, 783, 600 S.E.2d 31, 35-36 (2004) (internal quotation marks and citations omitted). In this case, the pivotal question is not whether exigent circumstances existed to support the officers use of the flashlights to see inside Defendant s home, but whether the use of the flashlights is considered a search within the purview of the Fourth Amendment. If the use of the flashlights did not constitute a search, then the Fourth Amendment protections are not triggered requirement. and there Conversely, would be if the no use exigent of the circumstances flashlights constitutes a search, then the Fourth Amendment protections are triggered and the analysis would be premised on whether there was legal justification for the warrantless search. In order to determine whether the use of the flashlights constituted a search within the meaning of the Fourth Amendment, -5we must determine whether Defendant had a reasonable expectation of privacy. Defendant decision in relies Kyllo. on the In United Kyllo, States the Supreme Court Court s announced that government intrusion on an individual s reasonable expectation of privacy without a physical intrusion into the residence was unreasonable and violative of the Fourth Amendment where officers used thermal imaging from outside a house to collect information about what was going on inside the house. 533 U.S. at 29-30, 150 L. Ed. 2d at 99-100. Kyllo, Defendant asks this Court to extend the reasoning of Kyllo to this case. Kyllo s rationale is confronted public. inapplicable with where flashlights the which Defendant are used sub by judice the is general See id. at 34, 150 L. Ed. 2d at 101 ( We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without constitutionally protected least here) where general (as public use. the physical area, constitutes technology (internal intrusion in quotation a search question marks into and is a -- at not in citations omitted)). Further, Defendant argues that our Supreme Court s decision in State v. Tarantino, 322 N.C. 386, 368 S.E.2d 588 (1988), is dispositive of the issue. We disagree. In Tarantino, a -6detective was given information by an unreliable informant about marijuana growing on the second floor of a building. 387, 368 S.E.2d at 589. Id. at The informant also told the detective that he could see the marijuana by looking through the cracks in the building. building to Id. Based on the tip, the detective went to the investigate. He found the padlocked and the windows boarded up. door to the building The officer reached the rear of the building, climbed to the second floor porch, entered the open porch, found cracks in the wall that he illuminated with his flashlight, and observed marijuana through the cracks in the wall. Id. at 387-388, 368 S.E.2d at 590. Our Supreme Court held that the defendant had a reasonable expectation of privacy in the building because [t]he building's padlocked front door, nailed back doors, and boarded windows indicate that defendant had a subjective expectation of privacy in his building's interior. This expectation was not unreasonable even though there were small cracks between the boards in the building's back wall. The presence of tiny cracks near the floor on the interior wall of a second-floor porch is not the kind of exposure which serves to eliminate a reasonable expectation of privacy. To hold otherwise would result in an unfairly exacting standard. It would require owners of non-residential buildings who want to enjoy their Fourth Amendment rights to maintain their structures almost as airtight containers. The Supreme Court has never imposed such a standard, and we decline to do so in this case. Id. at 390-91, 368 S.E.2d at 591. -7Here, engaged in shined the standing Defendant a opened discussion flashlights outside the the with door to police officers. through house. the Also, open Officers used their flashlights turned off the lights. for the front were safety and officers door lawfully residence investigating the dog biting incident. officers officers while at the Moreover, the when the woman Therefore, Tarantino is not controlling. In order to determine whether the use of the flashlight was a search within the meaning of the Fourth Amendment, we must first consider whether Defendant had a subjective expectation of privacy and if so, whether that expectation was reasonable. is well established that individuals expectation of privacy in their homes. have a It reasonable See Kyllo, 533 U.S. at 31, 150 L. Ed. 2d at 101 ( At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home answered is no. reasonable (internal and hence quotation constitutional marks omitted)). must But be this expectation is diminished when the door to the home is opened by the defendant. We find the rationale of United States v. Dunn, 480 U.S. 294, 94 L. Ed. 2d 326 (1987) applicable to this case. In Dunn, the Court held "the officers' use of the beam of a flashlight, -8directed through the essentially open front of [the defendant's] barn, did not transform their observations into an unreasonable search within the meaning of the Fourth Amendment." 94 L. Ed. 2d at 337. Our Id. at 305, Supreme Court, in reading Dunn, explained that [b]ecause the barn's interior was exposed to the public from an unprotected vantage point, the Court held that the officers' inspection was not a Fourth Amendment violation. Tarantino, 322 N.C. at 390, 368 S.E.2d at 591. Under these circumstances require the Court declared it would not the officers to shield their eyes from that which was exposed to public view. Id. at 391, 368 S.E.2d at 592 (internal quotation marks and citations omitted). Defendant s argument is overruled. Affirmed. Judges BRYANT and GEER concur. Report per Rule 30(e).
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