State v. Johnson , 64 N.C. App. 256 ( 1983 )

307 S.E.2d 188 (1983)

STATE of North Carolina
v.
Youles JOHNSON, Jr.

No. 8212SC828.

Court of Appeals of North Carolina.

October 4, 1983.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Henry T. Rosser, Raleigh, for the State.

Brown, Fox & Deaver by Bobby G. Deaver, Fayetteville, for defendant-appellant.

JOHNSON, Judge.

The facts in this case, recited in the above-quoted order, are not in dispute. While defendant excepted to several rulings by the trial court, the only assignment of error advanced by defendant on appeal concerns the denial of his pre-trial motion to suppress evidence. Defendant's exception was only an exception to the entry of the order. Therefore, the assignment of error, the exception on which it is based and the appeal itself present for our consideration the question of whether the facts found by the court support the conclusions of law drawn therefrom and the ruling denying defendant's motion. Hinson v. Jefferson, 287 N.C. 422, 215 S.E.2d 102 (1975); State v. Mallory, 266 N.C. 31, 145 S.E.2d 335 (1965), cert. denied sub nom. Mallory v. North Carolina, 384 U.S. 928, 86 S. Ct. 1443, 16 L. Ed. 2d 531 (1966); 1 Strong's N.C. Index 3d Appeal & Error, § 28.

Defendant argues that the evidence he seeks to suppress was discovered in a search that violated his rights under the Fourth Amendment and that the trial court should therefore have allowed his motion to suppress the evidence at trial. We agree.

With regard to the first conclusion of law in the Order, we may assume without deciding, since there was no exception to the findings of fact, that there was probable cause to believe that Williams and Wortham were located at defendant's residence. It was the trial court's second conclusion of law that was determinative of its ruling on the motion and it is our disagreement with that conclusion that is determinative of this appeal.

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, ... against unreasonable searches and seizures." U.S. Const. amend. IV. To protect this right, the U.S. Supreme Court has consistently held that the entry by law enforcement officers into a house to conduct a search is unreasonable under the Fourth Amendment unless done pursuant to a warrant. See Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960). The constitutional requirement of a warrant is subject to certain exceptions, recognized by the Supreme Court and the courts of this state, which preclude its per se application. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Allison, 298 N.C. 135, 257 S.E.2d 417 (1979); State v. Mackins, 47 N.C. App. 168, 266 S.E.2d 694, cert. denied, 301 N.C. 102 (1980). One of the exceptions, the one on which the State relies, is where exigent circumstances exist. State v. Allison, supra.

In the case before us, law enforcement officer had warrants for the arrest of Edith Mae Williams and John Wortham. The officers did not have a warrant for the arrest of Youles Johnson, defendant, or for the search of his house. The Fourth Amendment challenge to the search in question is raised by a person, not named in any warrant, who was indicted and convicted on the basis of evidence discovered by police officers who, without consent, entered his home in the course of executing arrest warrants for persons who did not live there.

Thus, the issue to be resolved is whether, on the facts of this case, the arrest warrants for Williams and Wortham adequately protected the right of the defendant to be free from an unreasonable search of his home and seizure of evidence therefrom. Phrased differently, the issue is whether the trial court properly concluded that the circumstances surrounding the execution of the arrest warrants were of such compelling exigency as to justify a warrantless search of defendant's home.

The United States Supreme Court recently considered this question on facts only slightly different from those of this case in Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). In Steagald, the Supreme Court pointed out that Fourth Amendment rights are personal in nature. Therefore, the Court said, a warrant for the arrest of one person does not provide adequate protection of a third party's right to be free from unreasonable searches, even when it is necessary that the arrest warrant be executed in the house of the third party. The Court said that a search warrant would generally be required to enter the house of a third party in such a situation. However, the Court recognized exigent circumstances as one exception to this requirement and cited "hot pursuit" of a fugitive as an example of such circumstances.

On the facts of Steagald, the Supreme Court held that the search in question violated the defendant's Fourth Amendment rights and that the evidence seized as a result of the search could not be used against him at trial. The same legal principles relied on by the Court in Steagald apply to the case before us. The reasonableness of a search, and the existence of exigent circumstances are factual determinations that must be made on a case by case basis. See State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied sub nom. Reams v. North Carolina, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971). The cases cited by both the State and defendant in their respective briefs can only be considered as illustrations of the application of the legal principles involved but not as controlling the result here.

In its argument, the State relies on the "hot pursuit" by Officer Bowser of a person he suspected to be the subject of one of the arrest warrants to justify his intrusion into defendant's house and the seizure of the evidence sought to be suppressed. In so doing, the State seeks to focus our attention on events that occurred after the point in time when a judgment as to whether a search warrant was required should already have been made. It is not apparent from the record that such a judgment was ever made. Whether the failure to procure a search warrant for defendant's house was the result of a conscious judgment of the police or whether it was due to a failure to recognize the necessity for such a judgment, it was an error that had occurred before Officer Bowser began his "hot pursuit."

Federal and state courts, when considering situations allegedly involving exigent circumstances, incorporate into their analysis some consideration of whether the police in those fact situations had an opportunity to procure a search warrant. See, e.g., U.S. v. Calhoun, 542 F.2d 1094 (9th Cir.1976) cert. denied sub nom. Stephenson v. United States, 429 U.S. 1064, 97 S. Ct. 792, 50 L. Ed. 2d 781 (1977); U.S. v. Houle, 603 F.2d 1297 (8th Cir.1979) and Steagald v. United States, supra. In reconciling the decisions of the various state and federal courts, LaFave has made the following instructive analysis:

A "planned" arrest is one which is made after a criminal investigation has been fully completed at another location and the police made a deliberate decision to go to a certain place, either the arrestee's home or some other premises where he is believed to be, in order to take him into custody..... Illustrative ... are the facts of the Court's recent decisions on the warrant requirement, PAYTON v. NEW YORK and STEAGALD v. UNITED STATES.... Courts have understandably been reluctant to accept police claims of exigent circumstances in these situations, for it ordinarily appears that whatever exigencies thereafter arose were foreseeable at the time the arrest decision was made, when a warrant could have readily been obtained. In the "planned" arrest situation, then, the only exception to any existing warrant requirement would be the presence of exigent circumstances prior to the time the officers went out into the field for the purpose of making the arrest.

LaFave, Search and Seizure; A Treatise on the Fourth Amendment § 6.1 (Supp.1983) (footnotes omitted).

From the record here, it is apparent that over three and a half hours elapsed between the time that the police were supplied with arrest warrants and the time the arrest was made. Although copies of the warrants are not in the record, it appears that the police were supplied at the same time with the information that the person named in the arrest warrants could be found at defendant's home. Officer Bowser testified that he had received information from the bondsman, Sgt. Baker and several other sources that Williams and Wortham were located at defendant's residence; that he knew defendant and knew his address and that his specific purpose in going to defendant's residence was to arrest Williams and Wortham. From the time the warrants were received until they were executed, no attempt was made to procure a warrant authorizing entry into defendant's house. Thus, it would appear that the arrest raid was in fact a planned raid. There was ample time to secure a search warrant and ample reason to anticipate the need for one. That the subject of the arrest warrants were believed to be a defendant's house is sufficient by itself to put the police on notice that they might need to gain entry to the house in order to effect the arrest. With these facts in mind, we need not consider whether Officer Bowser was in "hot pursuit" and whether that alone was sufficient to justify his entry into defendant's home. The need for a search warrant should have been anticipated in this case.

Because it is necessary that our decision stand on the specific facts contained in the record, we have not emphasized the factual similarity between this case and Steagald. The Court in Steagald, however, did make some general comments that directly support our decision here:

[I]n those situation in which a search warrant is necessary, the inconvenience incurred by the police is simply not that significant. First, if the police know of the location of the felon when they obtain an arrest warrant, the additional burden of obtaining a search warrant is miniscule. The inconvenience of obtaining such a warrant does not increase significantly when an outstanding warrant already exists.... In routine search cases such as this, [where there are no exigent circumstances] the short time required to obtain a search warrant will seldom hinder efforts to apprehend a felon....

Whatever practical problems remain, however, cannot outweigh the constitutional issues at stake. Any warrant requirement impedes to some extent the vigor with which the Government can seek to enforce its laws, yet the Fourth Amendment recognized that this restraint is necessary to protect against unreasonable searches and seizures.

Steagald v. United States, 451 U.S. at 222, 101 S. Ct. 1642, at 1652-53, 68 L. Ed. 2d at 51-52.

On the basis of the facts of this case, we conclude that no exigent circumstances existed that would justify the warrantless entry into defendant's house and the later seizure of the evidence which defendant seeks to suppress. The evidence was seized in a manner that violated defendant's Fourth Amendment rights and the trial court's failure to grant defendant's motion to suppress the evidence was therefore error. The judgment of the trial court is accordingly

Reversed.

Judge BRASWELL concurs.

Judge HEDRICK dissents.

HEDRICK, Judge, dissenting.

I respectfully dissent from the majority decision that no exigent circumstances existed justifying entry into the house owned and occupied by defendant and seizure of the drugs found in plain view. In my opinion, the officer was where he had a right to be and doing what he had a right to do, and Judge Winberry did not err in denying defendant's motion to suppress. The case relied on by the majority, Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981), while similar in many respects to the instant case, is, in my opinion, clearly distinguishable in the very manner Justice Marshall went to great lengths to point out: "We have long recognized that such `hot pursuit' cases fall within the exigent-circumstances exception to the warrant requirement ... and therefore are distinguishable from the routine search situation presented here." Id. at 218, 101 S. Ct. at 1651, 68 L.Ed.2d at 49. The Court went on to say:

We are convinced ... that a search warrant requirement will not significantly impede effective law enforcement efforts.... [The] exigent-circumstances doctrine significantly limits the situations in which a search warrant would be needed. For example, a warrantless entry of a home would be justified if the police were in "hot pursuit" of a fugitive.

Id. at 221, 101 S. Ct. at 1652, 68 L.Ed.2d at 51.

In the present case, the officer had a reasonable description of the person he sought. When he approached the house with an arrest warrant, he saw a person fitting that description break away from her companions and run to the back of the house and through the door. Under these circumstances the officer was not only justified in pursuing the person into the house to make an arrest—he had a positive duty to do so. The fact that the person he pursued was not the one for whom the warrant was issued is of no legal significance under the circumstances here presented. The record discloses the officer had probable cause to believe that the person he pursued was a fleeing felon, and, indeed, the person he sought was within the house. Furthermore, under the exigent circumstances depicted by this record, the officer had a duty to seize the contraband, which was in plain view. I vote to find no error.