State v. Grice

                                  No. 501PA12

STATE OF NORTH CAROLINA

            v.

JERRY WADE GRICE, JR.

                             Filed 23 January 2015



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous

decision of the Court of Appeals, ___ N.C. App. ___, 

 (2012), vacating

a judgment entered on 14 December 2011 by Judge James G. Bell in Superior

Court, Johnston County, and remanding for a new trial. Heard in the Supreme

Court on 19 November 2013.

      Roy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney
      General, for the State-appellant.

      Staples S. Hughes, Appellate Defender, and Jon H. Hunt and Benjamin
      Dowling-Sendor, Assistant Appellate Defenders, for defendant-appellee.


      MARTIN, Chief Justice.



      Defendant grew marijuana in view of his driveway, leaving three potted

plants exposed to any visitor who might approach his residence. Two detectives did

just that, and when they saw the plants, they seized them before returning the

following day with a warrant to search defendant’s home. At trial, the court denied

defendant’s motion to suppress the evidence of the seized plants. On appeal, the
                                  STATE V. GRICE

                                 Opinion of the Court



Court of Appeals reversed the trial court. We now reverse the decision of the Court

of Appeals.

      On 5 May 2011, the Johnston County Sheriff’s Office received an anonymous

tip that Jerry Grice, Jr. was growing marijuana at a particular residence on Old

School Road. In response, the Sheriff’s Office dispatched two detectives, Guseman

and Allen, to conduct a knock and talk investigation at the address. Both detectives

had extensive training in narcotic investigations, including training in identifying

marijuana. The property was located in a rural area, and the house was situated

along with several outbuildings approximately one-tenth of a mile down a dirt path.

After driving up the driveway, the detectives parked behind a white vehicle on the

right side of the house.

      The front door of the house was inaccessible, covered with plastic, and

obscured by furniture. However, the officers noticed that the driveway led to a side

door, which appeared to be used as the main entrance. Once the detectives had

parked, two dogs ran up to their car and started barking. Detective Allen remained

in the driveway to calm the dogs while Detective Guseman knocked on the side

door. No one answered his knocks. From the driveway, Detective Allen noticed

several buckets at a distance of approximately fifteen yards. Due to his training,

Detective Allen recognized the plants growing in three of the buckets as marijuana.

Detective Allen called Detective Guseman over to the driveway to observe the




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plants.   Also based on his training, Detective Guseman identified the plants as

marijuana without approaching the buckets.

      After identifying the plants from the driveway, the officers walked to the

plants and telephoned Captain Fish to determine how best to proceed. The Captain

instructed Detectives Guseman and Allen to seize the plants and return to the

Sheriff’s Office to obtain a search warrant. A search warrant for the residence was

executed the next morning. Detectives from the Sheriff’s Office returned to the

residence and arrested defendant, who admitted that the plants seized the previous

day were his.

      Defendant was subsequently indicted for manufacturing a controlled

substance. A second charge was brought but later dropped by the State and is not

relevant to our discussion here. Defendant filed a motion to suppress evidence of

the seized marijuana plants, claiming discovery of the plants was the product of an

illegal search and seizure. The motion was denied. At trial, defendant failed to

object to the introduction of the plants on this constitutional basis.    The jury

unanimously found defendant guilty, and the court sentenced him to a suspended

term of six to eight months with supervised probation. Defendant appealed.

      The Court of Appeals reversed, holding that “the trial court erred in its

conclusion that no Fourth Amendment violation resulted from the seizure [of the

plants].” State v. Grice, ___ N.C. App. ___, ___, 

 (2012). The

court reasoned that admitting the State’s evidence in this case would make it


                                         -3-
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“difficult to articulate a limiting principle such that ‘knock and talk’ investigations

would not become a pretense to seize any property within the home’s curtilage.” 

at ___, 

. The court further reasoned that “the trial court’s finding

‘[t]hat this seizure was to prevent [the plants’] destruction’ is not supported by

competent evidence in the record.” 

 at ___, 

. The court thus

held that “ ‘exigent circumstances’ cannot be a justification for this warrantless

seizure.” 

 at ___, 

. The court concluded its opinion by reasoning

that if the evidence of the plants had properly been suppressed, “the jury probably

would have reached a different result” and thus, plain error occurred. 

 at ___,

. We reverse.

      The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. “The touchstone of the Fourth Amendment is

reasonableness.” Florida v. Jimeno, 

, 

 (1991)

(citation   omitted).    The      protections      against   unreasonable   searches   and

unreasonable seizures are distinct from one another—“[a] search compromises the

individual interest in privacy; a seizure deprives the individual of dominion over his

or her person or property.” Horton v. California, 

, 

 (1990) (citation omitted).

      When considering whether a warrantless search was unreasonable, the

inquiry focuses on whether an individual has “ ‘manifested a subjective expectation


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of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize

that expectation as reasonable.’ ” Kyllo v. United States, 

, 

 (2001) (alteration in original) (quoting California v. Ciraolo, 

, 

 (1986)). Privacy expectations are highest in one’s

home. See Florida v. Jardines, ___ U.S. ___, ___, 

 (2013).

      When law enforcement observes contraband in plain view, no reasonable

expectation of privacy exists, and thus, the Fourth Amendment’s prohibition

against unreasonable warrantless searches is not violated. Ciraolo, 

, 

.      Instead, the Fourth Amendment analysis must

consider whether a subsequent warrantless seizure of the items left in plain view

was reasonable. That is the case with which we are presented. Here, 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. When

there is no privacy interest, there can be no search under the Fourth Amendment.

Minnesota v. Dickerson, 

, 

 (1993).

      We are left then to examine whether the seizure of the plants violated

defendant’s possessory interest in them, thereby running afoul of the Fourth

Amendment.        While the general rule is that warrantless seizures are

unconstitutional, a warrantless seizure of an item may be justified as reasonable

under the plain view doctrine, so long as three elements are met: First, “that the

officer did not violate the Fourth Amendment in arriving at the place from which


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the evidence could be plainly viewed”; second, that the evidence’s “incriminating

character . . . [was] ‘immediately apparent’ ”; and third, that the officer had “a

lawful right of access to the object itself.” Horton, 

, 

 (internal citations omitted); accord State v. Virgil, 

, 

 (1970).    The North Carolina General Assembly has additionally

required that the discovery of evidence in plain view be inadvertent.         State v.

Mickey, 

, 

 (citing N.C.G.S. § 15A-253 (1988)),

cert. denied, 

, 

 (1998). The plain view doctrine represents

the principle that “[t]he warrantless seizure of contraband that presents itself in

this manner is deemed justified by the realization that resort to a neutral

magistrate under such circumstances would often be impracticable and would do

little to promote the objectives of the Fourth Amendment.” Dickerson, 

, 

 (citations omitted); see also Texas v. Brown, 

, 

 (1983) (plurality) (“[R]equiring police to obtain a warrant

once they have obtained a first-hand perception of contraband, stolen property, or

incriminating evidence generally would be a needless inconvenience.”) (citation and

internal quotation marks omitted).

      Regarding the first element, the officers in this case were present in

defendant’s driveway to perform a knock and talk investigation.          This matters

because “[i]t is, of course, an essential predicate to any valid warrantless seizure of

incriminating evidence that the officer did not violate the Fourth Amendment in


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arriving at the place from which the evidence could be plainly viewed.” Horton, 

, 

.     Notably, defendant does not contest that this

procedure was lawful, for there is an “implicit license [that] typically permits the

visitor to approach the home by the front path.” Jardines, ___ U.S. at ___, 

. Secondly, testimony from both officers establishes that, based on their

training and experience, they instantly recognized the plants as marijuana.

Defendant does not contest the validity of that testimony. Thirdly, discovery of the

marijuana was inadvertent—defendant does not allege the officers wandered the

property looking for the marijuana before seeing it.

      The sole point of contention is whether the officers had a lawful right of

access from the driveway fifteen yards across defendant’s property to the plants’

location. Defendant claims that, while the officers had a lawful right to be present

at the door of defendant’s home, they did not have a lawful right to enter the

curtilage fifteen yards away.    When describing this element, the United States

Supreme Court says that the plain view doctrine “ ‘serves to supplement the prior

justification—whether it be a warrant for another object, hot pursuit, search

incident to lawful arrest, or some other legitimate reason for being present

unconnected with a search directed against the accused—and permits the

warrantless seizure.’ ”   Horton, 

, 

 (citation

omitted); see Illinois v. Andreas, 

, 

 (1983)

(“The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to


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a police officer whose access to the object has some prior Fourth Amendment

justification and who has probable cause to suspect that the item is connected with

criminal activity.”).   Similarly, the Court in Horton observed that “[w]here the

initial intrusion that brings the police within plain view of such an article is

supported, not by a warrant, but by one of the recognized exceptions to the warrant

requirement, the seizure is also legitimate.” 

, 

(emphasis added).

      Here, the knock and talk investigation constituted the initial entry onto

defendant’s property which brought the officers within plain view of the marijuana

plants. The presence of the clearly identifiable contraband justified walking further

into the curtilage. This understanding of the “lawful right of access” element is

consistent with the background precedent that informed the Court’s introduction of

this language in Horton. 

 & n.7, 

 & n.7 (citing

Chapman v. United States, 

, 

 (1961) (holding that officers

who had climbed through a window of a home to perform a warrantless search

violated the Fourth Amendment, and the subsequent seizure of distilling materials

from inside the home was unconstitutional); Jones v. United States, 

,

 (1958) (holding that the nighttime seizure of distilling materials from

a home was unconstitutional because law enforcement did not have a search

warrant justifying entry into the home); McDonald v. United States, 

,

 (1948) (holding that officers who had been watching the defendant for


                                          -8-
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                                   Opinion of the Court



two months committed an unconstitutional search when they climbed through a

window and peered through a transom to see if he was running an illegal gambling

operation); Trupiano v. United States, 

, 

 (1948) (holding

that a warrantless planned raid on a distillery was unconstitutional), overruled in

part by United States v. Rabinowitz, 

, 

 (1950);

Johnson v. United States, 

, 

 (1948) (holding that officers

who entered a hotel room without a search warrant based on the perceived smell of

opium could not justify the arrest of the occupant); Taylor v. United States, 

, 

 (1932) (holding that law enforcement officers who used a flashlight

to peer into a garage, then broke into the garage to open cardboard boxes suspected

of containing whisky, effectuated an unconstitutional search, and the subsequent

seizure was also unconstitutional)).     Our precedent similarly takes this point of

view. State v. Bone, 

, 

 (2001) (“In North Carolina, a

seizure is lawful under [the plain view] doctrine when the officer was in a place he

or she had a right to be at the time the evidence was discovered, it is immediately

obvious that the items observed are evidence of a crime, and the discovery is

inadvertent.”), cert. denied, 

, 

 (2002); State v. Hoffman,

, 

 (1972) (“Being lawfully in defendant’s

residence, the officers could examine and, without a warrant, seize ‘suspicious

objects in plain sight’ . . . . If the officers’ presence was lawful, the observation and




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seizure of what was then and there apparent could not in itself be unlawful.”)

(alteration in original) (citations and internal quotation marks omitted).

      Defendant places special emphasis on the fact that the plants were on the

“curtilage” of the property. The curtilage is the area “ ‘immediately surrounding

and associated with the home.’ ”      Jardines, ___ U.S. at ___, 

(quoting Oliver v. United States, 

, 

 (1984)). In

a non-Fourth Amendment case, we have said “the curtilage of the home will

ordinarily be construed to include at least the yard around the dwelling house as

well as the area occupied by barns, cribs, and other outbuildings.” State v. Frizzelle,

, 

 (1955) (citations omitted). The curtilage does

enjoy some measure of Fourth Amendment protection, Jardines, ___ U.S. at ___,

, because it is “intimately linked to the home, both physically and

psychologically,” Ciraolo, 

, 

. As such, it serves as

the buffer between the intimate activities of the home and the prying eyes of the

outside world.    But, law enforcement is not required to turn a blind eye to

contraband or otherwise incriminating materials left out in the open on the

curtilage. Ciraolo, 

, 

. Neither is law enforcement

absolutely prohibited from crossing the curtilage and approaching the home, based

on our society’s recognition that “the knocker on the front door is treated as an

invitation or license to attempt an entry, justifying ingress to the home by solicitors,




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hawkers and peddlers . . . .” Jardines, ___ U.S. at ___, 

 (citation

and internal quotation marks omitted).

      As a buffer, the curtilage protects privacy interests and prevents

unreasonable searches on the curtilage. See generally Jardines, ___ U.S. ___, 

; United States v. Dunn, 

, 

 (1987). Whether the

curtilage enjoys coextensive protection against unreasonable seizures is less clear.

We do know, however, that constitutionally protected property interests exist on a

spectrum. On one end of the spectrum, we have the home, which is protected by the

highest constitutional threshold and thus may only be breached in specific, narrow

circumstances. On the other end, we have open fields, which even though they may

be private property may be reasonably traversed by law enforcement under the

Fourth Amendment. Oliver, 

, 

. Curtilage falls

somewhere in between. The protection afforded the curtilage, at least in the context

of violations of privacy, is determined by looking at several factors: “the proximity of

the area claimed to be curtilage to the home, whether the area is included within an

enclosure surrounding the home, the nature of the uses to which the area is put,

and the steps taken by the resident to protect the area from observation by people

passing by.” Dunn, 

, 

 (citations omitted). These

considerations are important not because they will “yield[ ] a ‘correct’ answer to all

extent-of-curtilage questions. . . . [but because] they bear upon the centrally

relevant consideration—whether the area in question is so intimately tied to the


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                                   Opinion of the Court



home itself that it should be placed under the home’s ‘umbrella’ of Fourth

Amendment protection.” 

, 

.

      Borrowing these considerations for our analysis today, we conclude that the

unfenced portion of the property fifteen yards from the home and bordering a wood

line is closer in kind to an open field than it is to the paradigmatic curtilage which

protects “the privacies of life” inside the home. Oliver, 

, 

 (citation and internal quotation marks omitted).           However, even if the

property at issue can be considered the curtilage of the home for Fourth

Amendment purposes, we disagree with defendant’s claim that a justified presence

in one portion of the curtilage (the driveway and front porch) does not extend to

justify recovery of contraband in plain view located in another portion of the

curtilage (the side yard). By analogy, it is difficult to imagine what formulation of

the Fourth Amendment would prohibit the officers from seizing the contraband if

the plants had been growing on the porch—the paradigmatic curtilage—rather than

at a distance, particularly when the officers’ initial presence on the curtilage was

justified. The plants in question were situated on the periphery of the curtilage,

and the protections cannot be greater than if the plants were growing on the porch

itself. The officers in this case were, by the custom and tradition of our society,

implicitly invited into the curtilage to approach the home. Traveling within the




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                                      Opinion of the Court



curtilage to seize contraband in plain view within the curtilage did not violate the

Fourth Amendment.1

       Our decision in State v. Harvey, 

, 

 (1972), is

illustrative of this principle. In that case, a deputy arrived at the defendant’s home

to arrest the defendant. The officer saw the defendant standing in the doorway of

the utility room, so the officer approached that doorway. From the doorway, the

officer saw marijuana seeds on the top of a deep freezer inside the room.                  The

defendant met the officer at the doorway and was arrested. The officer proceeded to

enter the room and seize the marijuana seeds. This Court held the officer “was

legally on the premises, and no search was required to discover the contraband

material.” 

, 

. We allowed the plain view observance of

contraband from the doorway of a home to justify entry into the home.                      The

intrusion in this case is far less invasive than entry into the home.

       Whatever special protection the curtilage enjoys against warrantless

seizures, that protection does not support the creation of a rule that law

enforcement is automatically prohibited from crossing from one lawfully arrived at

       1We decline the dissent’s invitation to adopt the “pre-intrusion” framework invoked
by the Florida Supreme Court over thirty years ago. See post at 3 (citing Ensor v. State,

 (Fla. 1981), superseded on other grounds by statute, 

(5)
(Supp. 1982)). To the extent the dissent finds that case persuasive, we think these facts are
the quintessential example of a “ ‘prior valid intrusion,’ ” when “an officer is legally inside,
by warrant or warrant exception, a constitutionally protected area and inadvertently
observes contraband also in the protected area.” Ensor, 

. Here, the
detectives were legally inside the curtilage, a constitutionally protected area, performing a
knock and talk investigation when they inadvertently observed contraband also in the
protected area.

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                                   Opinion of the Court



portion of the curtilage to another portion of the curtilage to retrieve inadvertently

discovered contraband in plain view. This is particularly true when, as here, the

contraband nature of the seized items was immediately apparent, because “any

interest in possessing contraband cannot be deemed legitimate.”              Illinois v.

Caballes, 

, 

 (2005) (citation and internal

quotation marks omitted).

      Because the fact that the plants were on the curtilage alone is insufficient to

hold that the officers violated the Fourth Amendment in seizing the plants, we

perform the Fourth Amendment’s reasonableness inquiry to conclude our

evaluation of the constitutionality of the officers’ actions in this case. United States

v. Jacobsen, 

, 

 (1984). In this inquiry, “ ‘[w]e

must balance the nature and quality of the intrusion on the individual's Fourth

Amendment interests against the importance of the governmental interests alleged

to justify the intrusion.’ ” 

, 104 S. Ct. at 1662 (alteration in original)

(citation omitted).    “This rule merely reflects an application of the Fourth

Amendment’s central requirement of reasonableness to the law governing seizures

of property.” Brown, 

, 

 (emphasis added). The

State has a legitimate interest in seizing contraband, and the nature of the

intrusion in this case was minimal. The officers were at the home in daylight; the

contraband nature of the plants was readily apparent; the officers took only the

plants, leaving behind the buckets and caretaking implements surrounding them;


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                                   Opinion of the Court



and the officers left immediately after seizing the plants. 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. In other words, they did not

travel outside the category of property covered by the initial invitation to enter the

curtilage. Under these circumstances, the warrantless seizure of clearly identifiable

contraband left in plain view of defendant’s driveway was not unreasonable and the

motion to suppress was properly denied.

      Moreover, contrary to the concern raised by the Court of Appeals, this

holding does not mean that knock and talk investigations may be used as a pretense

to seize contraband in a home’s curtilage. The limiting principle is what it has

always been: law enforcement must have “ ‘some other legitimate reason for being

present unconnected with a search directed against the accused.’ ” Horton, 

, 

 (citation omitted). The implicit license enjoyed by law

enforcement and citizens alike to approach the front doors of homes may be limited

or rescinded by clear demonstrations by the homeowners and is already limited by

our social customs. See Jardines, ___ U.S. at ___, 

. If law

enforcement officers attempt to use an unreasonable warrantless search to justify a

subsequent seizure, their argument will fail. Horton, 

, 

. But as the officers here did not perform an unconstitutional search and

had a legitimate reason to be in the driveway, from which they saw the marijuana

plants left in plain view, they lawfully seized those plants.


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                                   Opinion of the Court



      Furthermore, the seizure was also justified by exigent circumstances.

Defendant points to the fact that the officers’ testimony at trial did not cite any

exigencies that steered their decision to seize the marijuana before obtaining a

warrant.      They seized the plants because their captain told them to.         But the

Supreme Court “has long taken the view that ‘evenhanded law enforcement is best

achieved by the application of objective standards of conduct, rather than standards

that depend upon the subjective state of mind of the officer.’ ” Kentucky v. King, ___

U.S. ___, ___, 

 (2011) (citation omitted); accord State v.

Barnard, 

, 

 (Constitutionality “depends on

the objective facts, not the officer’s subjective motivation.”) (citations omitted), cert.

denied, 

, 

 (2008). Accordingly, we look at the whole record

to determine if there were factors reasonably supporting the immediate seizure of

the plants.

      Factors long used to justify warrantless seizures have included the belief that

contraband will be removed or destroyed, the possible danger to police guarding the

site, and the ready destructibility of the contraband. United States v. Turner, 

 (4th Cir. 1981) (citing United States v. Rubin, 

(3d Cir.) (cataloguing various exigent circumstances recognized by other circuit

courts), cert. denied, 

, 

 (1973)); see generally Coolidge v.

New Hampshire, 

, 

 (1971), abrogated in part by Horton,

, 

. The Supreme Court has stressed the importance of

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“balanc[ing] the privacy-related and law enforcement-related concerns to determine

if the intrusion was reasonable.” Illinois v. McArthur, 

, 

 (2001) (citations omitted). This analysis led the Supreme Court to approve

a warrantless seizure that was tailored to the immediate governmental need

because the search was “limited in time and scope and avoid[ed] significant

intrusion into the home itself.” 

 (citations omitted). Similarly, there was no

physical intrusion into the home in this case. The officers removed the three plants

and the three plants alone, leaving behind the buckets in which they had been

planted and the various caretaking implements surrounding them. The plants were

small and easily transportable, and there was a passenger vehicle in the driveway.

The fact that no one came to the door does not establish that no one 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.          Leaving an

officer behind to secure the yard while the other officer went to get a warrant, as

suggested by defendant, could have exposed that remaining officer to unknown

danger. Moreover, “[f]aulting the police for failing to apply for a search warrant at

the earliest possible time after obtaining probable cause imposes a duty that is

nowhere to be found in the Constitution.” King, ___ U.S. at ___, 

.

Reviewing the record, it is objectively reasonable to conclude that someone may

have been home, that the individual would have been aware of the officers’


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presence, and that the individual could easily have moved or destroyed the plants if

they were left on the property. Under these facts, we find no reason to disturb the

trial court’s finding that “this seizure was to prevent [the plants’] destruction,” and

conclude that exigent circumstances justified the seizure.

      Finally, as acknowledged in his brief, defendant failed to object to the

introduction of the challenged evidence at trial.         Therefore, we review the trial

court’s evidentiary determination for plain error. See N.C. R. App. P. 10(a)(4); see

also State v. Lawrence, 

, 

 (2012). Under the plain error

standard, defendant cannot show that admission of the challenged evidence

amounted to plain error.

      Plain error requires that “a defendant must demonstrate that a fundamental

error occurred at trial. To show that an error was fundamental, a defendant must

establish prejudice—that, after examination of the entire record, the error ‘had a

probable impact on the jury’s finding that the defendant was guilty.’ ” Lawrence,

, 

 (internal citations omitted). We also stated,

“plain error is to be ‘applied cautiously and only in the exceptional case.’ ” 

, 

 (quoting State v. Odom, 

, 

 (1983)). In order to ensure plain error is reserved for the exceptional case, we

stressed that plain error requires a defendant to show that the prejudicial error was

one that “seriously affect[ed] the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 519, 

. When plain error analysis fails to

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adequately account for this element, plain error may become indistinguishable from

the less stringent harmless error standard.

        Even if it was error to deny the motion to suppress, it was not an error that

seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Here, the trial court allowed evidence that defendant left three marijuana plants

outside in his yard for any member of the public to see. Defendant acknowledges

that the plants were his. The inclusion of this evidence is not the “exceptional case”

that justifies finding plain error. 

, 

. Accordingly, we

reverse the decision of the Court of Appeals.

        Defendant chose to grow marijuana in his yard, plainly visible to any visitors

to his home. The law enforcement officers who visited defendant’s home carefully

limited the scope of their intrusion and their seizure was justified under the plain

view doctrine and supported by exigent circumstances. Because defendant failed to

specifically object at trial to the introduction of the plants, the plain error doctrine

provides yet another reason for our decision. Therefore, we reverse the decision of

the Court of Appeals.



        REVERSED.



        Justice ERVIN did not participate in the consideration or decision of this

case.


                                          -19-
      Justice HUDSON dissenting.

      The State argues, and the majority agrees, that because the marijuana plants

in defendant’s backyard were in “plain view,” their seizure was justified under the

“plain view” doctrine. Because I conclude that this determination is based upon a

mistaken assumption about how the doctrine applies when the view and seizure

occur from outside a constitutionally protected area, a “pre-intrusion” scenario, I

respectfully dissent.

      As the Maryland intermediate appellate court has observed, “[n]eedless

confusion” has arisen out of the failure by courts to distinguish “visually similar but

legally distinct situations” involving the observation of contraband:

             The “plain view doctrine,” as described in Coolidge v. New
             Hampshire, 

, 

, 

             [(1971)], refers exclusively to the legal justification—the
             reasonableness—for the seizure of evidence which has not
             been particularly described in a warrant and which is
             inadvertently spotted in the course of a constitutional
             search already in progress or in the course of an otherwise
             justifiable intrusion into a constitutionally protected area.
             It has no applicability when the vantage point from which
             the “plain view” is made is not within a constitutionally
             protected area.

Scales v. State, 

, 478 n.1, 

, 47 n.1 (Md. Ct. Spec. App.

1971). After Coolidge it was not entirely clear whether the discovery of contraband

had to be “inadvertent” to justify its warrantless seizure under the “plain view”

doctrine. In Horton v. California, 

, 

 (1990),

the Supreme Court of the United States clarified that “even though inadvertence is
                                    STATE V. GRICE

                                HUDSON, J., dissenting



a characteristic of most legitimate ‘plain-view’ seizures, it is not a necessary

condition.” However, as noted by the majority, our State statutes require that the

discovery be inadvertent. N.C.G.S. § 15A-253 (2013) (stating that when a search is

conducted via a warrant, an officer may also take possession of contraband that is

“inadvertently discovered” although not specified in the warrant).

      In 1971 the Supreme Court further explained the contours of what has come

to be known as the “plain view” doctrine:

             [P]lain view alone is never enough to justify the
             warrantless seizure of evidence. This is simply a corollary
             of the familiar principle discussed above, that no amount
             of probable cause can justify a warrantless search or
             seizure absent ‘exigent circumstances.’ Incontrovertible
             testimony of the senses that an incriminating object is on
             premises belonging to a criminal suspect may establish the
             fullest possible measure of probable cause. But even where
             the object is contraband, this Court has repeatedly stated
             and enforced the basic rule that the police may not enter
             and make a warrantless seizure.
Coolidge v. New Hampshire, 

, 

 (1971) (second

emphasis added) (citations omitted), abrogated in part by Horton, 

,

. In other words,

             “plain view” provides grounds for seizure of an item when
             an officer’s access to an object has some prior justification
             under the Fourth Amendment. “Plain view” is perhaps
             better understood, therefore, not as an independent
             “exception” to the Warrant Clause, but simply as an
             extension of whatever the prior justification for an
             officer’s “access to an object” may be.




                                         -21-
                                  STATE V. GRICE

                                HUDSON, J., dissenting



Texas v. Brown, 

, 

 (1983) (plurality)

(footnote omitted).

      As the Florida Supreme Court explains in Ensor v. State, these visually

similar situations fall into one of three categories for purposes of Fourth

Amendment analysis:

                    The term “plain view” has been misunderstood and
             misapplied because courts have made it applicable to
             three distinct factual situations. This has resulted in
             confusion of the elements of the “plain view doctrine.” To
             eliminate this confusion, we believe it appropriate to
             distinguish the true “plain view doctrine” as established
             in Coolidge v. New Hampshire, 

, 

, 

 (1971), from other situations where
             officers observe contraband.

                    The first factual situation we identify as a “prior
             valid intrusion.” In this situation, an officer is legally
             inside,    by    warrant    or   warrant      exception,  a
             constitutionally protected area and inadvertently
             observes contraband also in the protected area. It is this
             situation for which the United States Supreme Court
             created the “plain view doctrine” in Coolidge and held
             that an officer could constitutionally seize the contraband
             in “plain view” from within this protected area. We
             emphasize that it is critical under this doctrine for the
             officer to be already within the constitutionally protected
             area when he inadvertently discovers the contraband.

                    We identify the second factual situation as a “non-intrusion.” This situation occurs when both the officer
             and the contraband are in a non-constitutionally
             protected area. Because no protected area is involved, the
             resulting seizure has no fourth amendment ramifications,
             and, while the contraband could be defined as in “plain
             view,” it should not be so labeled to prevent any confusion
             with the Coolidge “plain view doctrine.”


                                        -22-
                                    STATE V. GRICE

                                 HUDSON, J., dissenting




                    The third situation concerns a “pre-intrusion.”
             Here, the officer is located outside of a constitutionally
             protected area and is looking inside that area. If the
             officer observes contraband in this situation, it only
             furnishes him probable cause to seize the item. He must
             either obtain a warrant or have some exception to the
             warrant requirement before he may enter the protected
             area and seize the contraband. As with the non-intrusion
             situation, the term “plain view” should not be employed
             here to prevent confusion. For clarity, we label an
             observation in the latter two non-Coolidge situations as a
             legally permissive “open view.”

 (Fla. 1981), superseded on other grounds by statute, 

(5) (Supp. 1982). These distinctions come from the limits to the plain view

doctrine, as explained by the Supreme Court in Texas v. Brown. While the majority

believes that this case falls within the first category of cases described in Ensor, I

believe it falls within the third.       Consequently, the majority analyzes the

constitutionality of the seizure of the contraband in this case under the “plain view”

doctrine, while I analyze it as a “pre-intrusion” case.

      Essentially, I do not agree with the majority that simply because the officers

were lawfully on the front porch, they could move to what the State has identified

as defendant’s “backyard” and “behind the residence.” I do not dispute that the

officers here had every right to be on the front (or, in this case, side) porch to

conduct a “knock and talk” investigation. See State v. Lupek, 

, 

 (2011) (“In North Carolina, however, no search of the

curtilage occurs when an officer is in a place where the public is allowed to be, such


                                          -23-
                                   STATE V. GRICE

                                HUDSON, J., dissenting



as at the front door of a house. It is well established that ‘[e]ntrance [by law

enforcement officers] onto private property for the purpose of a general inquiry or

interview is proper.’ ” (alterations in original) (quoting State v. Prevette, 

, 

 (1979), appeal dismissed and disc. rev.

denied, 

, 

, cert. denied, 

, 

(1980))). The front porch, however, is very different from the backyard and the rest

of the curtilage. The Supreme Court has repeatedly emphasized the high privacy

interest individuals hold in the curtilage. See, e.g., United States v. Dunn, 

, 

 (1987) (recognizing “that the Fourth Amendment

protects the curtilage of a house”); United States v. Martinez–Fuerte, 

, 

 (1976) (noting that the “sanctity of private dwellings” is

“afforded the most stringent Fourth Amendment protection”). Further, as noted by

the majority, this Court has specifically defined the curtilage to include areas

identical to where the contraband was observed in this case: “[T]he curtilage of the

home will ordinarily be construed to include at least the yard around the dwelling

house as well as the area occupied by barns, cribs, and other outbuildings.” State v.

Frizzelle, 

, 

 (1955) (citations omitted). Therefore,

although the officers here were lawfully on the porch that served as the main

entrance to the house, they had no right to enter other portions of defendant’s

curtilage. Defendant’s “backyard,” located “behind the residence,” is still “afforded




                                         -24-
                                    STATE V. GRICE

                                 HUDSON, J., dissenting



the most stringent Fourth Amendment protection.” Martinez-Fuerte, 

, 

.

      Because the officers were outside the protected area, I conclude that the

Fourth Amendment requires either (1) a warrant or (2) probable cause and exigent

circumstances to allow the officers to cross into the protected area and seize the

contraband. Here there was no warrant. On the other hand, there was probable

cause given the immediately apparent contraband nature of the plants, so exigent

circumstances, if they existed, could have justified a seizure of the contraband.

However, I do not agree that such circumstances existed. The majority relies on the

following facts to establish exigent circumstances: “[t]he plants were small and

easily transportable, [ ] there was a passenger vehicle in the driveway,” and two

dogs were roaming around the yard. From these facts, the inference is drawn that

someone was at home and could destroy the plants after the officers left the scene.

Even if the officers assumed someone was at the residence, these facts do not create

a typical “exigent circumstances” fact pattern.           Usually, the suspect and the

contraband are in one location, and the officers are in a different location—as in, the

officers are outside the house and the suspect is inside with the contraband,

contemplating potential destruction of it. See, e.g., State v. Rojas, ___ N.C. App. ___,

, 

, at *5 (2013) (unpublished) (explaining that

“marijuana is often times disposed of by flushing it down the toilet or putting it in

the garbage disposal”).     Here, on the other hand, it is the officers and the


                                          -25-
                                      STATE V. GRICE

                                   HUDSON, J., dissenting



contraband that are together, and the suspect is nowhere to be seen.             If these

circumstances support a finding of exigent circumstances, it is difficult to imagine

when a simple sighting of portable contraband would not.                   See State v.

Yananokwiak, 

, 

 (1983) (“The state’s

argument that exigency is shown simply because drugs are easily destroyed would

permit the exigency exception to swallow the entire warrant requirement.”).

Finally, the burden is on the State to prove the exigent circumstances. State v.

Allison, 

, 

 (1979) (citation omitted). Here the

State did not present any evidence to the trial court regarding exigent

circumstances, but argued for it and the trial court found as fact: “That this seizure

was to prevent [what appeared to marijuana plants’] destruction.” The basis for

this finding is not apparent, and the trial court made no conclusions of law on that

issue.     Therefore, exigent circumstances cannot properly justify the officers’

intrusion into defendant’s protected curtilage.

         For these reasons, I conclude that the officers were not justified in seizing the

plants here. In my view, defendant’s Fourth Amendment rights were violated and

the evidence should have been suppressed.

         Having determined that the challenged evidence was obtained in violation of

defendant’s Fourth Amendment rights, and thus should have been suppressed, the

issue to me becomes whether erroneous admission of the evidence constitutes plain




                                            -26-
                                      STATE V. GRICE

                                   HUDSON, J., dissenting



error.    In State v. Lawrence, 

, 

 (2012), we recently

“reaffirm[ed]” the principles forming “the plain error standard of review” on appeal:

               For error to constitute plain error, a defendant must
               demonstrate that a fundamental error occurred at trial.
               To show that an error was fundamental, a defendant
               must establish prejudice—that, after examination of the
               entire record, the error had a probable impact on the
               jury’s finding that the defendant was guilty. Moreover,
               because plain error is to be applied cautiously and only in
               the exceptional case, the error will often be one that
               seriously affects the fairness, integrity or public
               reputation of judicial proceedings.

, 

 (brackets, citations, and internal quotation marks

omitted).     I disagree with the assertion that the consideration of inadmissible

evidence does not affect the “fairness, integrity, or public reputation of judicial

proceedings.” 

 In my view, it does exactly that. The majority appears to suggest

that because defendant actually possessed the contraband, his conviction does not

offend our justice system.       I cannot agree with that premise.     In my view, a

conviction obtained with evidence which should not have been admitted is as

offensive to our justice system as a wrongful conviction.

         For the above reasons, I respectfully dissent.

         Justice BEASLEY joins in this dissenting opinion.




                                           -27-