Petition — Prevette v. North Carolina

Gupreme Court, U,

FILED

SUPREME COURT OF THE UNITED STATES

MICHA EL a :

October Term, 1980 ROUSK, JR., CLERR

€9-1622

GAITHER DEAN PREVETTE, ET. AL..,

Petitioners,

-VS-

STATE OF NORTH CAROLINA

Respondent.

Petition for a Writ of Certiorari

to the

North Carolina Court of Appeals

Roger W. Smith Thomas J. White

300 Branch Bank Building Post Office Drawer 3169

Raleigh, North Carolina 27602 Kinston, North Carolina 28501

Telephone: (919) 821-4711 Telephone: (919) 527-8131

Counsel for Petitioners Counsel for Petitioners

Sutton and Wood

C. E. Gerrans

Post Office Box 3405

Kinston, North Carolina 28501

Telephone: (919) 527-6252

Counsel for Petitioners Prevette,

Stafford, St. John and Grimes

INDEX

CHRIS TUE aia ins cc caR Ree eA Ces uin Secidbuaceb es 4)

SUITE: 5. 2a a eR ha Sa cas PEL ANR TRS NORE H)

ND Fa ig ee cue Coens 5

Constitutional Provisions Involved................... 6

See, ES oh dk ona ce dG i cewiccacin se 6

Nature and Course of the Proceedings ........... 6

PMR GE TID PO. oo sisv nc cca cacscncccccceces 7

Reasons for Granting the Writ..................008: 10

A. Bases of Decision Below .................005: 10

B. Appropriateness of Review .................. 11

C. Tampere GE WAN ok cassis cade cease 16

Com bc case cebicebcis ced brid iee ck ctovouds. 17

Appendix I: Excerpts from Record ................. 18

Appendix II: Opinion Below .................ee0e- 21

CITATIONS

Agnello v. United States, 269 U.S. 20 (1925) ......... 12

Arkansas v. Sanders, 442 U.S. 753 (1979) ............ 15

Chapman v. United States, 365 U.S. 610 (1961) ...... 12

Chimel v. California, 395 U.S. 752 (1968) ............ 12

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ..... 12

Dunaway v. New York, 442 U.S. 200 (1979) .......... 17

Harris v. United States, 390 U.S. 234 (1968) .......... 13

Hester v. United States, 265 U.S. 57 (1924) .......... 16

Johnson v. United States, 333 U.S. 10 (1947) “F....... 12

Jones v. United States, 357 U.S. 493 (1958) .......... 12

Katz v. United States, 389 U.S. 347 (1967) ........... 16

Lo-Ji Sales v. New York, 442 U.S. 319 (1979) ........ 17

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) ....... 17

McDonald v. United States, 335 U.S. 451 (1948) ...... 12

Olmstead v. United States, 277 U.S. 438 (1928) ....... 16

Roaden v. Kentucky, 413 U.S. 496 (1973) ............ 15

Silverthorne Lumber Co. v. United States,

ee es Eee a oe aaa Rac bnasnwa ce 16

Stanford v. Texas, 379 U.S. 476 (1965) ............... 17

State v. Frizelle, 243 N.C. 40 (1955) ......cccccccccces 16

State v. Harrison, 239 N.C. 659 (1954) ............... 16

State wo. Twitty, 2 FOAL. TORE) asics ve cdccccsavacas 16

Taylor v. United States, 286 U.S. 1(1931) ........... 12

United States v. Jeffers, 342 U.S. 48 (1951) .......... 15

Vale v. Louisiana, 399 U.S. 30 (1970) ................ 12

Wong Sun v. United States, 371 U.S. 491 (1963) ...... 16

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

GAITHER DEAN PREVETTE, ET. AL..

Petitioners,

-VS-

STATE OF NORTH CAROLINA

Respondent.

Petition for a Writ of Certiorari

to the

North Carolina Court of Appeals

The Petitioners, Gaither Dean Prevette, William Norman

Stafford, Walter Lee St. John, Randy Marylon Grimes, Phillip

Mark Sutton, and Francis Earl Wood, respectfully pray that a

Writ of Certiorari issue to review the judgment and opinion of

the North Carolina Court of Appeals in this proceeding on

November 6, 1979.

OPINION BELOW

The opinion of the North Carolina Court of Appeals is

reported in 43 N.C. App. 450, 259 S.E. 2d 595. The Judgment of

the Supreme Court of North Carolina, dismissing Petitioners’

Appeal and denying their Petition for Discretionary Review,

is reported in 299 N.C. 124, 262 S.E. 2d 8 (1980).

JURISDICTION

The judgment of the North Carolina Court of Appeals was

entered on November 6, 1979. Petitioners’ Appeal and Petition

for Discretionary Review were denied by the Supreme Court

of North Carolina in an Order filed on January 17, 1980, and

this Petition for Certiorari was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C. §1257 (3).

QUESTIONS PRESENTED

1. Does the “plain view” doctrine authorize the warrantless

seizure of evidence from a back room of a residence after

evidence is observed in a front room of the residence?

2. Does the “‘plain view” doctrine authorize entry into a

residence after evidence is observed inside the residence by a

police officer standing outside the residence?

3. Is the “plain view” doctrine’s requirement of an initial

lawful intrusion satisfied where an officer observes contra-

band inside a residence, while looking through the front door

from the porch outside the residence, after going to the door in

response to an anonymous tip that contraband was present in

the residence?

4. Is the “plain view” doctrine’s requirement of an inad-

vertent discovery satisfied where an officer observes contra-

band inside a residence, while looking through the front door

from the porch outside the residence, after going to the door

for the purpose of trying to locate contraband in response to an

anonymous tip that contraband was present in the residence?

5. Is the “plain view” doctrine’s requirement of exigency

satisfied where an officer goes to a residence in response to an

anonymous tip that the residence was “hanging full” of

marijuana, detains a suspect outside the residence, observes

marijuana on the floor of a room inside the residence from his

position outside the residence, and would be unable to procure

a search warrant in less than one hour?

6. Does the “open fields’ exception to the Fourth Amend-

ment permit the search of farm buildings around a residence

that is 300 yards from the nearest (unpaved) public road, not

visible from the public road, and accessible only by a one-lane

farm road marked by a no trespassing sign and blocked by a

farm tractor?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue but

upon probable cause, supported by oath or affirmation and

particularly describing the place to be searched and the

persons or things to be seized.

United States Constitution, Amendment XIV:

§1. All person born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the state wherein they reside. No state shall make

or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any state

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jirisdiction

the equal protection of the laws.

STATEMENT OF THE CASE

Nature and Course of the Proceedings:

The Petitioners were charged in separate bills of indict-

ment, returned by the Lenoir County Grand Jury on

November 7, 1977, with the felonious possession with intent to

manufacture, sell and deliver the controlled substance

marijuana on September 22, 1977.

Prior to the trial, Petitioners moved to suppress all evidence

seized, on September 22, and 23, 1977, pursuant to a search of

land and buildings described as Wood’s Dairy Farm, Route 3,

La Grange, North Carolina.

In March, 1978, the motions to suppress came on for hearing

in Lenoir County Superior Court. The Court heard evidence

and argument and entered an Order denying the motions to

suppress.

Petitioners excepted to the Court’s Order, preserved their

right to appeal from that Order pursuant to N.C.G.S. §15A-

979, and entered pleas of guilty to the charges contained in the

indictments on March 23, 1978.

The Court entered judgments sentencing Petitioners Pre-

vette, Stafford, St. John, Sutton, and Wood to terms of

imprisonment of two years, and Petitioner Grimes toa term of -

probation of four years.

Petitioners gave notice of appeal to the North Carolina

Court of Appeals. In an opinion filed on January 16, 1979, that

Court remanded the case to Lenoir County Superior Court for

a factual determination of whether Petitioners had standing to

object to the search. State v. Prevette, 39 N.C. App. 470, 250

S.E.2d 682 (1979). The Supreme Court of North Carolina denied

Petitioners’ Petition for Discretionary Review of this decision.

State v. Prevette, 297 N.C. 179, 254 S.E.2d 38 (1979).

The Lenoir County Superior Court held a hearing on

September 4, 1979, and concluded that Petitioners did have

standing to challenge the legality of the search. Respondent

did not appeal from that determination.

The North Carolina Court of Appeals, in an opinion filed on

November 6, 1979, affirmed the Superior Court’s original

denial of Petitioners’ motions to suppress. State v. Prevette, 43

N.C. App. 450, 259 S.E.2d 595 (1979). Petitioners’ Appeal and

Petition for Discretionary Review, filed in the Supreme Court

of North Carolina on December 7, 1979, were dismissed and

denied by Order filed on January 17, 1980. State v. Prevette,

299 N.C. 124, 262 S.E.2d 8 (1980).

Statement of Facts:

At the initial hearing on Petitioners’ motions to suppress in

Lenoir County Superior Court, there was evidence to show

the following:

At about 6:00 p.m. on Thursday, September 22, 1977, Lenoir

County Deputy Sheriff Robert Pelletier received an anon-

ymous telephone call at the Sheriff's Office in the Courthouse

in Kinston, North Carolina. The caller said that “there was an

abandoned house near Wood’s Dairy Farm hanging full of

marijuana.” (Record on Appeal in the North Carolina Court of

Appeals, page 24.) The caller refused to meet with Deputy

Pelletier but told him that he (the caller) would be back in

touch later. (R.p. 24)

Deputy Pelletier notified Sheriff's Detective William E.

Smith and, after Pelletier completed an assignment as

security guard at the airport, he met at the Sheriff's Office

with Smith and three Kinston City Police Detectives at about

10:00 p.m. (R.p. 25)

Deputy Pelletier was familar with Wood’s Dairy Farm in the

Jenny Lind Section of rural Lenoir County, having been

raised in the old Herring house near there (R.p. 26, 31). The

Officers believed that the description given by the caller fit

both the Herring house and the Wood’s Dairy Farm residence

(R.pp. 24, 43, 52, 53). They believed the Herring house to be

abandoned (R. pp. 26) but were not sure whether the Wood’s

house was occupied or not (R.pp. 26, 39, 44, 63). At the Sheriff's

Office meeting, they discussed the insufficiency of the

information to obtain a search warrant and neither sought nor

obtained a search warrant from the Magistrate (R.p. 57) on

duty in the Courthouse, one floor below, and thirty or forty

yards from, the Sheriff’s Office (R.p 58).

Following a discussion of seversl minutes, the Officers

decided to ride up there (R.p. 25) and check the two houses

(R.p. 53) and the buildings on Wood’s Dairy Farm (R.p. 25).

Their purpose in going was to “look for the marijuana” (R.p.

33, 43, 54) and try “‘to get probable cause.” (R.pp. 43, 54). They

“were not going to call on anybody’s residence and ask any

questions.” (R.p. 43).

After a twenty-minute drive in two unmarked cars, they

arrived at the Herring house which they searched and found

to be empty (R. pp. 26, 31, 32, 44). They left there and drove

toward Wood’s Dairy Farm, going back to the paved road,

turning from there onto an unpaved road, and driving until

they reached the turn-off to the Wood’s Dairy Farm path (R.p.

32). This path, which served only, and led only to, the Wood’s

residence, was a “real crooked,” one-lane, two-wheel-rutted

farm road that went directly to the front of the Wood’s

residence (R. p. 32). From the unpaved state road to the Wood’s

residence, the path was several hundred yards long (R.p. 27)

and the house was not visible from the state unpaved road

(R.p. 38). About half-way along the path to the house, there was

a fence (R.p. 32).

The Officers turned onto this path and drove until they came

to a point where it crossed an earthen bridge (R.p. 32) on each

side of which was a ditch (R.pp. 38-39). On the bridge, blocking

the path, was a large farm tractor (R. pp. 27, 38). Beyond the

tractor, about fifty yards further up the path, the Officers

could see the Wood’s residence (R. p. 27). [To the left of the

tractor, a “No Trespassing”’ sign on a post was not seen by the

Officers at this time (R. pp. 27, 53, 65) but was seen by them,

“clearly readable” (Rp. 53), the next day (R.pp. 53, 65)].

The Officers stopped and exited their cars behind the tractor

(R. pp. 27, 46). It was about 11:00 p.m. (R. p.27). From this point,

they could see the house (R. p. 27). Deputy Pelletier saw that

the front porch light was on (R. p. 27). Sheriff's Detective Smith

saw that a light was on inside the house in either the kitchen or

den area (R. p. 46). City Police Detective Larry Green observed

“that there were lights on the inside of the house.” (R. p. 65).

Walking around the tractor, the Officers (all in plain clothes

except Pelletier) proceeded toward the front of the house with

their flashlights off(R. p. 46). As Deputy Pelletier walked onto

the front porch, there was a noise from the side of the house

“like somebody came out the side door” (R. p. 27), “like a door

slamming.” (R. p. 46). The Officers ran to the side yard and

observed a person “running all out” from the middle side of

the house. He ran and jumped into acorn field that was located

behind the house, about twenty yards from the back door of

the house, and landed in a lying position about five yards into

the field (R. p. 46). The Officers got the man to his feet and it

was Petitioner St. John. The Officers questioned him and he

denied living in the house or knowing who lived there ((R. p.

47). City Detective Green observed green residue on his

clothing and face and detected the odor of marijuana about his

person. (R. p. 66).

The Officers walked Petitioner St. John onto the front

porch and up to a doorway that opened into the house at the

end of the porch (R. p. 28). This doorway was barred by aclosed

screen (R. p. 28) and Deputy Pelletier detected no odor from

the house (R. p. 28) and observed nothing that he considered to

be contraband (R. p. 34). Sheriff's Detective Smith, however,

detected a “musky odor that smeiled like vegetable material of

some kind” and observed “scattered leafy material on the

floor” (R. p. 348) that he “guessed,” but did not know, was

marijuana (R. p. 55).

The Officers, led by Deputy Pelletier, then entered the

house (R. p. 29) into the kitchen, where they observed a

working refrigerator, canned goods, a stove, and table ware(R.

pp. 35, 37).

They then proceeded to search the house and found

bedrooms, a bath room, a small back room, beds, blankets, and

sheets (R. pp. 35, 37). In closets and a back bedroom, the

Officers found Petitioners Prevette, Stafford, and Grimes (R.

p. 67) and brought them to the front room with Petitioner St.

John (R. p. 30). Thereafter, on the floor of the small back room,

the Officers found a pasteboard box containing what they

believed to be marijuana stems (R. p. 29). The four Petitioners

in the front room were then arrested (R. p. 49). Some of the

Officers then went outside, checked the outbuildings, and,

after about ten minutes, reported back that they were full (R.

p. 30). Petitioner Sutton was then arrested after he approached,

and then tried to leave, the premises in a pick-up truck (R. pp.

50-51).

Thereafter, that night and the following day, Officers

searched the premises of the farm and found a ten-acre field of

plowed up marijuana stalks, a ten-foot high pile of marijuana

stalks, and a packhouse, three grain bins, and a tobacco barn

filled with marijuana (R. p. 93). Altogether, the material

discovered totalled approximately eight tons (R. p. 51). The

Officers took samples and destroyed the remainder (R. p. 52).

One or two weeks after these events, Sheriff's Detective

Smith prepared and filed an official report in which he

indicated that the officers had ‘‘stumbled across’ the

marijuana after going to the house to look for a suspect in a

breaking and entering case (R. p. 97). Later, he filed a second

report in which he told ‘exactly what had happened.” (R. p.

97).

REASONS FOR GRANTING THE WRIT

A. BASES OF THE DECISION BELOW

The North Carolina Court of Appeals held that the search

was proper and that marijuana seized from the residence and

the outbuildings was admissible. The Court based this decision

on the following conclusions:

1. The seizure of the marijuana from a back room of the

residence was justified by the officers’ observation of

marijuana scattered on the floor of a front room of the

residence (Implicit).

2. The “plain view” doctrine applies because officers may

enter and search a residence without a search warrant if they

observe, from outside the residence, contraband inside the

residence, so long as the conditions for application of the

doctrine are present.

3. The conditions for application of the “plain view”

doctrine were present in this case because the officers

observed and smelled marijuana inside the house, from their

position at the door outside the house, and

a. The officers were lawfully at the door out-

side the house,

10

b. The officers discovered the marijuana

inadvertently, and

c. The officers were confronted with

exigent circumstances.

4. The seizure of marijuana from the outbuildings around

the residence was proper because of the “open fields”

exception to the Fourth Amendment.

B. APPROPRIATENESS OF REVIEW

The decision of the North Carolina Court of Appeals is

appropriate for review by this Court because its major

premises, outlined above, are in conflict in principle with the

decisions of this Court.

1. Scope of the Plain View Search

The North Carolina Court of Appeals analyzed the search

issue in terms of the “plain view” doctrine. The Court found

the conditions of the doctrine satisfied and held that the

marijuana was properly seized from the residence because the

officers entered and seized marijuana after seeing and

smelling marijuana inside the house from their position

outside the house.

The marijuana seized from the residence—the marijuana at

issue in the case—was not the material that was seen inside the

house by the officers.

After the officers brought Petitioner St. John from the corn

field to the front porch of the house, Deputy Smith was able to

see through the screen door into the first room. In that room,

he saw “scattered leafy meterial on the floor.” It was “not in

large quantities, just scattered.” (R. p. 48). From this

observation, and the accompanying odor, he concluded that

the material was marijuana (R. p. 48).

At that time, all five officers “entered and proceeded to

search the house” (R. p. 37). Deputy Smith testified: “After we

got into the kitchen room, the officers started through the

house with their flashlights to see if there was any other

subjects in the house.” (R. p. 49). During the course of this

search, three of the Petitioners were found in the house (R. p.

29). P

After these people were found, they were brought to the

front room. Then, a pasteboard box was observed on the floor

of a back room. (R. pp. 29, 49). This box, described as being

“approximately 8 inches deep and 18 to24 inches wide,” had no

11

lid and was one-half to three-fourths full of what the officers

recognized as marijuana (R. pp. 29, 49). Deputy Smith seized

the box, carried it into the kitchen, and arrested the subjects

(R. p. 49).

(Apparently, the material first seen by the officers through

the screen door was not seized.)

The room in which the box was found was located at the back

of the house with two full rooms (kitchen and dining room)

between it and the door through which entry was made (R. p.

35). From the porch outside that door, “there would have been

no way possible to have seen the contents of the box ... in the

back room.” (R. p. 36).

The purpose of the plain view doctrine is to permit the

seizure of clearly visible items without the necessity of a

search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 29

L.Ed. 2d 564, 91 S.Ct. 2022 (1971). And the scope of any search is

limited by the circumstances by which it is justified. Chimel v.

California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969).

The North Carolina Court of Appeals held, in effect, that a

house may be entered and completely searched if officers

outside the house see contraband anywhere inside the house.

That holding is not justified by any reading of the plain view

doctrine.

2. The Plain View Doctrine as Justification

for Entering A Residence.

The plain view doctrine does not provide justification for a

law enforcement officer to enter a private residence and seize

items located within the residence. Knowledge of the presence

of contraband within a residence, no matter how certain and

no matter how acquired, does not justify a warrantless entry

and seizure. Vale v. Louisiana, 399 U.S. 30, 26 L.Ed.2d 409, 90

S.Ct. 1969 (1970); Chapman v. United States, 365 U.S. 610, 5

L.Ed. 2d 828, 81 S.Ct. 776 (1961); Jones v. United States, 357 U.S.

493, 2 L.Ed. 2d 1514, 78 C.Ct. 1253 (1958); McDonald v. United

States, 335 U.S. 451, 93 L.Ed. 153, 69 S.Ct. 191 (1948); Johnson v.

United States, 333 U.S. 10, 92 L.Ed. 436, 68 S.Ct. 367 (1947);

Taylor v. United States, 286 U.S. 1, 76 L.Ed. 436, 52 S.Ct. 466

(1931); Agnello v. United States, 269 U.S. 20, 70 L.Ed. 145, 46

S.Ct. 4 (1925).

The North Carolina Court of Appeals relied on the language

of Coolidge v. New Hampshire, supra, to justify application of

the plain view doctrine in the present case. But Coolidge

involved the seizure of a vehicle from a driveway and a

12

subsequent search.of that vehicle. Nothing in that decision

suggests that an officer’s observation into a residence, from

outside the residence, dispenses with the requirement that the

decision to permit entry into a dwelling must be made by a

magistrate.

3. Lawfulness of the Officers’ Presence

If the plain view doctrine can justify entry into this

residence, and the seizure of the box of marijuana, then it can

do so only if the conditions for application of that doctrine were

present. The first of those conditions is that the officer making

the observation must have done so from a place where he had a

right to be. Coolidge v. New Hampshire, supra; Harris v.

United States, 390 U.S. 234, 19 L.Ed.2d 1067, 88 S.Ct. 992 (1968).

The North Carolina Court of Appeals recognized this

condition and found that the officers were properly on the

front porch at the door because they were there ‘“‘to conduct a

general inquiry and investigation.” State v. Prevette, supra at

455.

As will be discussed more fully in the following section, the

facts of this case do not support that conclusion. Both Deputy

Pelletier and Sheriff's Detective Smith testified that they

went to the residence to find the marijuana (R. pp. 33, 53). To

denominate such a mission an “investigation” does not alter

the fact that it was, in truth, a search.

Police officers, like other citizens, may go to the door of a

residence to make legitimate general inquiry. But, to permit

officers to go to the door of a residence in the dark of night,

looking for marijuana, after receiving an anonymous tip that

marijuana is present, would make a sham of Fourth

Amendment search warrant procedure. An officer in pos-

session of information establishing probable cause to search

may go to the door of a residence only if he first submits that

information to a magistrate and obtains a warrant. McDonald

v. United States, supra; Johnson v. United States, supra. It

would be anomalous indeed to permit an officer in possession

of information that arouses suspicion but does not establish

probable cause to go to the door of a residence in an effort to

see the contraband through a window or door.

4. Inadvertency of Observation

In Coolidge v. New Hampshire, supra, the Court held that

plain view justifies a seizure only if the evidence was

discovered inadvertently.

13

The North Carolina Court of Appeals recognized this

requirement but held that it was satisfied by the fact that the

officers saw marijuana inside the house through the screen

door.

The Court’s conclusion begs the question. The issue raised

by the inadvertency requirement is whether the officers

anticipated the discovery. Coolidge v. New Hampshire, supra.

As this Court pointed out in Coolidge, the requirement of

inadvertency has two purposes. First, it assures that officers

who have probable cause prior to the seizure secure a search

warrant. Second, it assures that officers who do not have prior

probable cause may not “justify a planned warrantless seizure

by maneuvering themselves within ‘plain view’ of the object

they want.” Id., n. 26, at 469, 29 L.Ed.2d at 585, 91 S.Ct. at 2052.

Under no reasonable analysis of the facts in this case may the

discovery of this marijuana be characterized as inadvertent.

Tested by the subjective intent of the officers, it is clear that

they went to the premises for the purpose of finding the

marijuana. The officers tesiified at the suppression hearing

that, when they left the Sheriff's Office for the Wood's Dairy

Farm area, it was their “intention to try to locate the

marijuana” (R. p. 54) and they “had no idea of going to any

houses in that area other than the two, the Herring house and

the Wood’s Dairy house.” (R. pp. 53, 73). When they parked

their cars on the Wood’s Dairy Farm road and started walking

toward the residence, they were “going there to look for the

marijuana.” (R. p. 33). Their “sole purpose in going there was

to seek the marijuana that had been described in the phone

call.” (R. p. 53). After the officers took custody of Petitioner St.

John outside the house, and walked him to the screen door,

Sheriff's Detective Smith looked in and saw material on the

floor. He testified: “I knew it was green vegetable material and

I guessed it was marijuana because I was looking for it and

expected it to be there.” (R. p.55). The evidence also indicates

that the officers consciously undertook a plan to make their

purposeful discovery appear to be inadvertent. Two weeks

after the seizure, Deputy Smith filed a report in which he

“gave the understanding” that they were looking for a

breaking and entering suspect and “stumbled on the house.”

(R. p. 97). One month later, he filed a revised report (R. p. 97).

Tested by objective standards, it would also be inaccurate to

describe the discovery as inadvertent. The information

received from the anonymous tipster was that there was a

house “hanging full of marijuana.” (R. p. 24). The only

conceivable purpose of an on-site examination of the two

ae

suspect houses would be to observe the marijuana. That is a

search.

The North Carolina Court of Appeals’ conclusion that this

discovery was inadvertent clearly conflicts with the decision

in Coolidge v. New Hampshire, supra.

5. Exigency of Circumstances

With the exception of consent and arrest searches, warrant-

less searches are not proper except in “exigent circumstances.”

Arkansas v. Sanders, 442 U.S. 753, 61 L.Ed.2d 235, 99 S.Ct 2586

(1979); Vale v. Louisiana, supra; Coolidge v. New Hampshire,

supra. Inconvenience and delay are not sufficient in them-

selves to constitute the exigent circumstances necessary to

justify a warrantless search. Johnson v. United States, supra.

What is required are “circumstances in which police action

literally must be‘r w or never’ to preserve the evidence of the

crime.” Roaden v. Kentucky, 413 U.S. 496, 505, 37 L.Ed.2d 757,

765, 93 S.Ct. 2796, 2803 (1973).

In the present case, the North Carolina Court of Appeals

concluded that the circumstances were exigent because, as the

Trial Court concluded, the contraband might be destroyed,

other suspects might be in the area, it would have taken an hour

to get a search warrant, and the possessors were aware of the

police presence.

The officers, however, had information that there was a

large quantity of marijuana. When they observed marijuana

in the house, they could have arrested Petitioner St. John and

secured the premises until asearch warrant could be obtained.

Coolidge v. New Hampshire, supra; United States v. Jeffers,

342 U.S. 48, 96 L.Ed. 59, 72 S.Ct. 93 (1951). In view of this option,

it can hardly be said that this was the kind of now or never

situation envisioned by Roaden v. Kentucky, supra.

6. The Open Fields Exception

After the subjects were rounded up, placed ‘in the front

room, and arrested, Deputy Pelletier watched them while

some of the other officers went ‘‘to check the rest of the

buildings.” (R. p. 30). After about ten minutes, one of the

officers returned and reported “that all the buildings were

full.” (R. p. 30). Thirty minutes later, Petitioners were taken to

the courthouse (R. p. 30). Subsequently, during the night and

the next day, all of the buildings were searched.

The North Carolina Court of Appeals approved this search

of the outbuildings on the basis that the Fourth Amendment

protection does not extend to “open fields.”

15

It is true that this Court has held that the Fourth

Amendment’s protection does not include open fields. Hester

v. United States, 265 U.S. 57, 68 L.Ed.2d 989, 44 S.Ct. 445 (1924).

This Court has also held that no Fourth Amendment issue

arises where evidence is obtained without a physical trespass.

Olmstead v. United States, 277 U.S. 438, 72 L.Ed. 944, 48S.Ct. 564

(1928). More recently, however, the Court has rejected

analysis of Fourth Amendment issues in traditional property

terms and has held that protection from unreasonable search

and seizure extends to what a person reasonably seeks to

preserve as private. Katz v. United States, 389 U.S. 347, 19

L.Ed.2d 576, 88 S.Ct. 507 (1967).

If one has a reasonable expectation of privacy in a public

telephone booth, as in Katz, supra, surely one has a reasonable

expectation of privacy in outbuildings located on a farm 300

yards from the nearest (unpaved) road, and accessible only by

a one-lane farm road marked by a no trespassing sign and

blocked by a tractor.

Even if the facts are analyzed in terms of property law, it is

not realistic to conclude that these farm buildings were

equivalent to open fields. In North Carolina, a person’s home

includes his dwelling and other buildings within the curtilage.

State v. Harrison, 239 N.C. 659, 80 S.E.2d 481 (1954). The

curtilage includes the land, enclosed or not, commonly used

with the dwelling. State v. Frizelle, 243 N.C. 49, 89 S.E.2d 725

(1955); State v. Twitty, 2 N.C. 102 (1794).

In any event, the grounds and outbuildings around the

Wood’s residence were searched, not because they were in

open fields, but because of the prior search of the residence.

Thus, evidence obtained as a result of that search was the

product of the illegality of the search of the residence and was,

therefore, inadmissible. Wong Sun v. United States, 371 U.S.

491, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963); Silverthorne Lumber Co.

v. United States, 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182 (1920).

C. IMPORTANCE OF REVIEW

Review by this Court of the North Carolina Court of

Appeals’ decision 1s not only appropriate but important.

In the first place, review is important because each of the

separate components of the decision, discussed above, is an

important aspect of the law of search and seizure.

In the second place, review is important because of the

overall thrust of the opinion in the Court below. Reduced to its

essence, the case stands for the following proposition: A police

16

officer who receives an anonymous tip that contraband is

located in either one of two dwellings may go to those

dwellings in hopes of finding the contraband. That type of

door-to-door search smacks of the general warrant or writ of

assistance from which the Fourth Amendment provides

protection. Lo-Ji Sales v. New York, 442 U.S. 319, 60 L.Ed.2d

920, 99 S.Ct. 2319 (1979); Marshall v. Barlow’s Inc., 436 U.S. 307,

56 L.Ed.2d 305, 98 S.Ct. 1816 (1978); Stanford v. Texas, 379 US.

476, 13 L.Ed.2d 431, 85 S.Ct. 506 (1965).

When a police officer receives anonymous information, not

sufficient to establish probable cause, that contraband is

located in a particular residence, or in one of several

residences, may he goto the door to investigate? It isimportant

that the question be answered. As pointed out in Dunaway v.

New York, 442 U.S. 200, 213, 60 L.Ed.2d 824, 836, 99 S.Ct. 2248,

2257 (1979): ‘A single, familia: standard is essential to guide

police officers, who have only limited time and expertise to re-

flect on and balance the social and individual interests involved

in the specific circumstances they confront.”

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the North Carolina Court of

Appeals.

Respectfully submitted,

ROGER W. SMITH

300 Branch Bank Building

Raleigh, North Carolina 27602

Telephone: (919) 821-4711

Counsel for Petitioners

THOMAS J. WHITE

Post Office Drawer 3169

Kinston, North Carolina 28501

Telephone: (919) 527-8131

Counsel for Petitioners Sutton and Wood

C. E. GERRANS

Post Office Box 3405

Kinton, North Carolina 28501

Telephone: (919) 527-6252

Counsel for Petitioners Prevette, Stafford,

St. John and Grimes

April 14, 1980

17

APPENDIX I

Excerpts from Record Indicating Presentation of Federal

Questions Below:

A. In the Trial Court, a motion substantially like the one

which follows, was filed on behalf of each Petitioner:

(From Record pages 18-20):

MOTION TO SUPPRESS AND EXCLUDE EVIDENCE —

NOS. 77 CR9031, 77 CR9032, 77 CR 9033 (Filed January 3, 1978)

NOW COMES the Defendant, Phillip Mark Sutton by

counsel of record Thomas J. White, and proceeding pursuant

to N.C.G.S. Section 15A-974 moves to suppress and exclude

certain evidence which the Defendant alleges was unlawfully

obtained, said evidence being the following:

All evidence consisting of or pertaining to approxi-

mately sixteen thousand pounds of material alleged

to be marijuana or any part thereof found and seized

on or about September 22 and 23, 1977, on land and in

buildings described as Wood’s Dairy Farm on Route

3, LaGrange, North Carolina, in Lenoir County,

North Carolina, and especially including, but not

limited to, the following: Cardboard boxes of green

vegetable material with gloves inside said boxes; two

feea bags of green vegetable material found near a

cow shelter; dried green vegetable plants in ashelter

or any other building near a dwelling; green vege-

table material found on and taken from certain farm

equipment located on the Wood’s Dairy Farm; and

any other green vegetable material found on the

premises known as Wood’s Dairy Farm on, in, or

about any of the buildings thereon, and any and all

paraphernalia seized which is designed to be or

could be used in or associated with the production,

manufacture, packaging, processing, repackaging,

possession, use, sale, or distribution of marijuana;

and any other articles seized or held by the State of

North Carolina which the aforesaid State intends to

offer or attempt to offer into evidence against the

Defendant, Phillip Mark Sutton.

a rns er

APPENDIX I

Grounds upon which this motion is interposed are

the following:

I. The vegetable material, plants, paraphernalia

and other objects and articles mentioned in this

MOTION TO SUPPRESS AND EXCLUDE

EVIDENCE were seized and possession of the same

obtained by means of a warrantless search of the

described premises under conditions requiring the

use of a valid search warrant, which search was

unreasonable, without the consent of any person,

without probable cause, not incidental to a valid

arrest, without said seized articles and objects being

in the category of contraband in plain view of

officers lawfully upon the premises where the same

was seized, and therefore unreasonable under the

protection provided by the Fourth Amendment of

the United States Constitution, and therefore, the

exclusion of said evidence so seized is required by the

Constitution of the United States and by the

Constitution of the State of North Carolina.

II. The exclusion of any statement whether oral or

written alleged to have been made by the

Defendant, Phillip Mark Sutton under the facts and

circumstances of the above numbered cases is

required by the provisions of the Fifth and Sixth

Amendments of the United States Constitution and

by Section 23 of Article I of the Constitution of the

State of North Carolina.

An Affidavit containing facts supporting this MOTION TO

SUPPRESS AND EXCLUDE EVIDENCE is attached.

WHEREFORE, the Defendant, Phillip Mark Sutton, prays

the Court:

1. That pursuant to N.C.G.S. Section 15A-977 (b) an order

issue which summarily suppresses the above described

evidence or, in the alternative;

2. That a hearing be had on this MOTION TO SUPPRESS

AND EXCLUDE EVIDENCE on the date the above numbered

cases shall be regularly set for motion and arraignment and

that at the conclusion of that hearing, the Court issue an order

suppressing and excluding the evidence described herein.

19

APPENDIX I

RESPECTFULLY SUBMITTED, this 30th day of December,

1977.

WHITE, ALLEN, HOOTEN,

HODGES & HINES, P.A.

Attorneys for Phillip Mark Sutton

By: s/Thomas J. White

Attorney

B. In the North Carolina Court of Appeals:

(From Record page 164):

ASSIGNMENT OF ERROR NO. 3:

For that his Honor erred in overruling and denying the

several Motions of the defendants to suppress and exclude

evidence.

EXCEPTIONS: NOS. (Omitted).

20

APPENDIX II.

OPINION BELOW

STATE OF NORTH CAROLINA V. GAITHER DEAN PREVETTE, WILLIAM

NORMAN STAFFORD, WALTER LEE ST. JOHN, RANDY MARYLON

GRIMES, PHILLIP MARK SUTTON, anp FRANCIS EARL WOOD

No. 788SC753

(Filed 6 November 1979)

APPEAL by defendants from Cowper, Judge. Judgments

entered 23 March 1978 in Superior Court, LENOIR County. Heard

in the Court of Appeals 5 December 1978.

Defendants were charged with felonious possession of mari-

juana with intent to manufacture, sell, and deliver, a violation of

the North Carolina Controlled Substances Act. Each defendant

tendered a plea of not guilty, and the six cases were consolidated

for trial. All defendants moved to suppress the evidence, approx-

imately eight tons of marijuana, seized by officers. After a hear-

ing pursuant to Section 979(b) of Chapter 15A of the General

Statutes of North Carolina, the trial court found facts, made con-

clusions of law, and denied the motions. Each defendant then

entered a plea of guilty, judgments were entered, and defendants

appealed. Such facts as are necessary to this opinion appear

below.

Attorney General Edmisten, by Assistant Attorney General

Isham B. Hudson, Jr., for the State.

Gerrans & Spence, by C. E. Gerrans, for defendants Gaither

D. Prevette, William N. Stafford, Walter L. St. John, and Randy

M. Grimes.

White, Allen, Hooten, Hodges & Hines, by Thomas J. White

and W. H. Paramore III, for defendants Phillip M. Sutton and

Francis E. Wood.

MARTIN (Harry C.), Judge.

In State v. Prevette, 39 N.C. App. 470, 250 S.E. 2d 682, disc.

rev. denied, 297 N.C. 179, 254 S.E. 2d 38 (1979), this Court held

the stipulation by the state and defendants that all defendants

had standing to challenge the validity of the searches and

seizures was invalid and not binding upon it. We remanded to

superior court for a factual determination of whether defendants

21

APPENDIX II

or any of them had a protectible interest in the searched

premises under the Fourth Amendment of the United States Con-

stitution. A hearing was held 4 September 1979. That court found

facts and concluded that all defendants did have standing to

challenge the legality of the search. The state did not except to

this ruling of the trial judge; therefore, it is not presented to this

Court for review.

We now address the question whether defendants have a

meritorious challenge to the trial court’s denial of their motions

to suppress the evidence obtained by search and seizure.

Defendants initially object to certain findings of fact made by

the trial judge at the hearing on their motions to suppress. They

argue that these four findings are not supported by the evidence

and even conflict with it.

The judge found that after receiving a telephone call from an

“unknown tipster” who reported that a house near Wood's Dairy

Farm in Lenoir County was full of marijuana, Deputy Sheriff

Robert Pelletier discussed the tip with Kinston police officers.

Having decided that the information was not sufficient to obtain a

search warrant, “they decided to go to LaGrange to attempt to

get further information about the situation by conducting a

general inquiry and investigation of the area by determining

whether or not the houses were occupied and then interviewing

the occupants, if any; .. ..” Defendants’ objection to the quoted

portion of the finding is based on testimony by four of the officers

that their sole purpose in going to that section of the county was

to locate the marijuana referred to in the phone call.

When the trial judge's findings of fact are supported by com-

petent evidence they will not be disturbed on appeal, even though

the evidence is conflicting. State v. Small, 293 N.C. 646, 239 S.E.

2d 429 (1977); State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123

(1971). We find competent evidence in the record to support this

finding. Detective Lt. Smith of the sheriff's department testified:

“We just decided to get in the car and go up to Jenny Lind and

look for any signs of movement or anything else to give us an in-

dication of where we should be looking primarily. We did not real-

ly have a plan.” Furthermore, Smith testified: “We saw lights

there, we were going to try to find out who was there or

whatever. We were going to knock on the door.” Other portions

of the record also reflect the fact that the officers intended to

conduct a general investigation of the area.

22

APPENDIX II

The judge found that the officers proceeded to check out two

locations in the Jenny Lind section of Lenoir County, the site of

Wood's Dairy Farm. They approached a house at the second loca-

tion, using a dirt path. They had no search warrant. They en-

countered a tractor parked across the path. As they walked up to

the house they heard a back door slam. One of the defendants ran

from the door and attempted to hide in a cornfield. He was ap-

prehended and questioned. He went with the officers to the front

of (ve house. The officers stepped into the light at the front of

the house. The front door was open but a screen door barred the

entrance. Defendants object to the finding “that the officers

standing on the porch could see through this screen door; that

they then observed in plain view inside the house green

vegetable material scattered on the floor, which, in their opinion

appeared to be marijuana; also they smelled an odor from inside

which to them smelled like marijuana; .. ..” Here again, although

Deputy Sheriff Pelletier testified that he did not detect any par-

ticular odor and could not see contraband or anything he con-

sidered to be contraband from the screen door, two other officers

testified that they smelled marijuana and saw it scattered on the

floor inside the house. This was competent evidence to support

the challenged finding and it is conclusive on appeal.

The judge next found that the officers detected motion in the

front room of the house and heard a noise of something or some-

one moving through the cornfield. They then entered the house

searching for other suspects. Defendants object to the finding

“that they searched the house finding three other defendants and

additional marijuana in plain view; .. ..” There is evidence that

the pasteboard box of marijuana found in a back room of the

house did not have a lid on it. One officer said the marijuana was

“stacked in a pile protruding above the level of the box.” There

was evidence that another officer did not recall seeing anything

sticking out above the top of the box. Conflicts in the evidence

were for the trial judge to resolve.

Defendants finally object to the finding that in order to look

for anyone who might have made the noise in the cornfield, two

officers “proceeded outside and began to check the area, in the

process of which, Hollowell discovered in plain view marijuana in

some of the out buildings; .. ..” There is competent evidence to

support this finding that large quantities of marijuana were seen

in the barn and other outbuildings during the course of checking

the area for other suspects. Officer Harper testified:

APPENDIX II

We went outside and began looking around. Sgt. Hollowell

and myself. I walked towards the back of the house and made

a circle around the house. Sgt. Hollowell had walked out

towards the barn. I checked around the house and started

towards the barn out where Sgt. Hollowell was when he

called me to the area and shined his flashlight up in the loft

of the packhouse. And I shined mine there and we discussed

the large amount of marijuana.

. . . We had already looked in the packhouse and two

grain silos. The grain silos contained large amounts of mari-

juana in bundles.

Defendants argue in their brief that since a constitutional

challenge confronts this Court in the case at bar, they are entitled

to a careful study of the record. A detailed, careful examination of

the record has been made. The findings of fact made at the sup-

pression hearing are supported by competent evidence. Since we

so hold, we also find the court did not err in denying and overrul-

ing defendants’ requests for specific findings of fact.

Judge Cowper made sixteen conclusions of law, thirteen of

which are challenged by defendants, either wholly or partially. In

addition, defendant Sutton assigned as error conclusion of law

number fourteen, but he abandoned this assignment on appeal.

Defendants argue generally that the conclusions of law are in the

nature of findings of fact and are not supported by the evidence.

Specifically, they contend that none of the recognized exceptions

to the Fourth Amendment guarantee against unreasonable

searches and seizures is present in this case.

[1] In Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564,

rehearing denied, 404 U.S. 874 (1971), the United States Supreme

Court held that under certain circumstances, police may seize

evidence in plain view without a search warrant. Crucial to this

plain view doctrine are the necessary circumstances: The officer

must have a right to be where he is when the evidence comes into

view, and he must inadvertently discover the incriminating ob-

ject. A further limitation on the doctrine is dictated under

Coolidge. Exigent circumstances must exist to justify a war-

rantless entry in order to seize evidence discovered in plain view.

In North Carolina a similar principle has been announced:

24

APPENDIX II

“When an officer’s presence at the scene is lawful (and at

least if he did not anticipate finding such evidence), he may,

without a warrant, seize evidence which is in plain sight and

which he reasonably believes to be connected with the com-

mission of a crime, even though the ‘incident to arrest’ doc-

trine would not apply; and such evidence is admissible.”

State v. Bagnard, 24 N.C. App. 54, 57, 210 S.E. 2d 93, 95 (1974),

cert. denied, 286 N.C. 416, 211 S.E. 2d 796 (1975). See State v.

Allison, 298 N.C. 135, 257 S.E. 2d 417 (1979).

[2] Judge Cowper concluded as a matter of law that the officers

were lawfully on the premises of Wood's Dairy Farm at the time

they approached the house, based on his finding of fact that they

went to that particular area to conduct a general inquiry and in-

vestigation. Entrance onto private property for the purpose of a

general inquiry or interview is proper. United States v. Brown,

457 F. 2d 731 (1st Cir. 1972), cert. denied, 409 U.S. 843 (1972);

United States v. Knight, 451 F. 2d 275 (5th Cir. 1971), cert.

denied, 405 U.S. 965 (1972). Furthermore, officers are entitled to

go to a door to inquire about a matter; they are not trespassers

under these circumstances. Ellison v. United States, 206 F. 2d 476

(D.C. Cir. 1953). It was not erroneous for the judge to conclude

that the officers, standing on the porch of defendants’ house, were

lawfully at the scene.

The judge's conclusion of law that the officers, while standing

on the porch, “viewed in plain view and smelled on the inside of

the house what appeared to them to be marijuana” is amply sup-

ported by his findings of fact and therefore meets the standard of

appellate review.

The question remains whether the inadvertency requirement

of the discovery of the evidence in plain view is met in this case.

This Court recently confirmed the necessity of inadvertent obser-

vation of evidence in pointing out that the plain view exception to

the Fourth Amendment has been restricted to “instances where

the officer has legal justification to be at the place where he in-

advertently sees a piece of evidence in plain view.” State v.

Blackwelder, 34 N.C. App. 352, 355, 238 S.E. 2d 190, 192 (1977). In-

advertent means fortuitous, by chance. In State v. Howard, 274

N.C. 186, 162 S.E. 2d 495 (1968), we find: “If the officers’ presence

was lawful, the observation and seizure of what was then and

there apparent could not in itself be unlawful.” Jd. at 202, 162 S.E.

2d at 506. The judge's finding of fact that the officers could see

APPENDIX II

through the screen door and that they observed marijuana inside

the house fulfills the inadvertency requirement of plain view.

This same finding of fact supports the conclusion of law “that

this information, for the first time, gave rise to probable cause for

the officers to search the residence in a lawful manner; .. ..”

Keeping in mind the warning in Coolidge, supra, that plain view

of objects inside a house will furnish probable cause but will not,

without exigent circumstances, authorize entry to seize without a

warrant, we turn now to a review of the conclusion of law that

“officers were confronted with exigent circumstances which re-

quired immediate action on their part to search the residence and

premises not only for suspects but for more contraband;.. ..”

In one of the leading cases which discuss the exigent cir-

cumstances or emergency exception, United States v. Rubin, 474

F. 2d 262 (3rd Cir. 1973), cert. denied, 414 U.S. 833 (1973), it is

acknowledged that emergency circumstances may vary from case

to case. Therefore, this Court must look to the record to see if,

upon the facts of this particular case, the judge was correct in

concluding that exigent circumstances were present. Although

the judge denominated certain findings as conclusions of law, we

read them as findings of fact and hold that they are supported by

competent evidence and that they do support the conclusion of

law that exigent circumstances were present. The relevant find-

ings are as follows:

5. That the quantity of marijuana observed by the of-

ficers on the inside of the house was such that it was not im-

probable that the contraband could be destroyed or secreted

by those desiring to do so, by whatever means, be they ex-

treme or not, the possessors might choose;

6. That at the time the officers gained their probable

cause, based upon the sounds that they heard in the area and

the impressions that they had obtained from the surrounding

circumstances, it was probable or reasonable for the officers

to conclude that other suspects might be in the area who,

under these circumstances, would present a danger to the of-

ficers’ safety, would escape, or destroy the evidence if not

prevented;

7. That at the time probable cause first ripened, the

degree of urgency for the officers to act became immediate;

26

enn Ee nn

APPENDIX II

that the amount of time it would have taken to get and serve

a search warrant was great in that they would have had to

have returned to Kinston, write out the affidavit, and return

again to Wood's Dairy, taking at least one hour;

8. That the officers had reasonable grounds to believe

that the possessors of this contraband were aware that the

police were on their trails and in pursuit;

[3] These factual findings must also support Judge Cowper's con-

clusion of law that the exigent circumstances were sufficient to

excuse the officers from the requirement of law to knock and an-

nounce prior to entry of the house. Defendants argue that the un-

contested failure of the officers to knock on the screen door or to

demand admittance before they entered the house should lead to

the suppression of all evidence seized or gained by the state as a

result of the alleged unconstitutional entry.

In State v. Watson, 19 N.C. App. 160, 198 S.E. 2d 185, cert.

denied, 284 N.C. 124, 199 S.E. 2d 662 (1973), it was recognized that

an entry which ordinarily required an announcement of purpose

and demand for admittance might be proper without these pro-

cedures under special and emergency conditions: “when it

reasonably appears that such an announcement and demand by

the officer and the delay consequent thereto would provoke the

escape of the suspect, place the officer in peril, or cause the

destruciton of [sic] disposition of critical evidence.” Jd. at 165, 198

S.E. 2d at 188. It is important to note that this principle applies

when a valid search warrant is the basis for the entry. Five years

later, in State v. Brown, 35 N.C. App. 634, 242 S.E. 2d 184 (1978),

this Court held that officers were not justified in making a forci-

ble, unannounced entry into defendant’s home based on their

reasonable belief that notice of their entry would result in the

destruction or hiding of evidence. In this case also, the officers

acted while executing a valid search warrant. The Court stated:

“In so far as State v. Watson, 19 N.C. App. 160, 198 S.E. 2d 185

(1973) is inconsistent with this opinion, we believe that it has been

overruled by G.S. 15A-251.” Jd. at 637, 242 S.E. 2d at 187.

N.C.G.S. 15A-251 governs searches made under warrants;

N.C.G.S. 15A-249, which is cited within N.C.G.S. 15A-251, also

governs searches under warrants. Our concern is whether in a

warrantless search made under the exigent circumstances excep-

tion the same exigent circumstances may also justify the failure

to knock and announce before entry.

APPENDIX II

We agree with the state’s argument that they may and, in

the case sub judice, do. It is clear from N.C.G.S. 15A-259 that the

requirements of Article 11 of Chapter 15A apply only to searches

made under warrants. The statute specifically provides: “Nothing

in this Article is intended to alter or affect the emergency search

doctrine.” In addition, N.C.G.S. 15A-231 states: “Constitutionally

permissible searches and seizures which are not regulated by the

General Statutes of North Carolina are not prohibited.” The ex-

igent circumstances found by the trial judge, which are adequate

to justify the warrantless search made by the officers in this case,

are also sufficient to excuse the officers from the knock and an-

nounce requirement.

Finally, although defendants concede that Fourth Amend-

ment protection against warrantless searches does not extend to

open fields, like the field near defendants’ house where marijuana

stalks were discovered, Hester v. United States, 265 U.S. 57, 68

L.Ed. 898 (1924); State v. Boone, 293 N.C. 702, 239 S.E. 2d 459

(1977), they argue that evidence of the marijuana stalks should

have been suppressed in accordance with the fruit of the

poisonous tree doctrine, established in Wong Sun v. United

States, 371 U.S. 471, 9 L.Ed. 2d 441 (1963). Since we agree with

Judge Cowper's conclusion that there was no illegality in the of-

ficers’ search of defendants’ house and premises, we find Wong

Sun inapplicable in this case.

The denial of defendants’ motions to suppress and exclude

the incriminating evidence found in and around their house as the

result of a warrantless search is

Affirmed.

Chief Judge MORRIS and Judge PARKER concur.