Petition for Writ of Certiorari — Jolley v. North Carolina

84-1050

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1984

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HAZEL MAE JOLLEY, PETITIONER

Vs.

STATE OF NORTH CAROLINA, RESPONDENT

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PETITION FOR A WRIT OF CERTIORARI TO

THE NORTH CAROLINA SUPREME COURT

AND REQUEST FOR SUMMARY REVERSAL.

Walter H. Dalton

HAMRICK, BOWEN, NANNEY & DALTON

511 North Washington Street

Rutherfordton, North Carolina 28139

704-286-9152

Attorney for Petitioner

QUESTION PRESENTED

1. Did the North Carolina Supreme Court

err and decide a question dealing with the

requirements of the Fourth Amendment of the

United States Constitution in a manner

inconsistent with the applicable decisions

of this Court by upholding the validity of

a warrantless search of the Petitioner's

home?

TABLE OF CONTENTS

Page

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Constitutional Provisions Involved....3

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Reasons for Granting the Petition.....7

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Appendix B. eeeeseeeee*ee?e#eneeee8e8028027F80280808080808 -B-1

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TABLE OF AUTHORITIES

Page

Cases:

Harris vs. United States, 390

Uebe 234 Zi. eke ee en eek sesebeoeees 16

Mincey vs. Arizona, 437 U.S.

Dr eee tsccate Op tO, 12, 14, 23 & 24

Thompson vs. Louisiana, 53

U.S.L.W. 3396(November 26, 1984)

TET Toi seweseeeets Sy VWI, 12, & 24

Segura vs. United States,

UF FP » vee BeCt. 3360

Tce ee ec ekhbaeeeneneoecose sO, 19 & 24

United States vs. Chadwick,

DeTwae 7 LUST Peatoesecee, 17, 16 & 24

Vale vs. Louisana, 399 U.S. 30

Te oe wesvocscsecl

Welsh vs. Wisconsin, 0.8. ’

94 ve 4 a 2091 eS a

Constitution:

Fourth Amendment of the United States

CE

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1984

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HAZEL MAE JOLLEY, PETITIONER

vs.

STATE OF NORTH CAROLINA, RESPONDENT

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NOW COMES the Petitioner, Hazel Mae

Jolley, by and through her counsel of

record, and petitions for a writ of

certiorari to review the judgment of the

North Carolina Supreme Court in this case.

OPINIONS BELOW

The opinion of the North Carolina

Supreme Court in this case, which reverses

the North Carolina Court of Appeals

decision, is not yet reported but appears

in (Appendix A, infra, pp. A-1 to A-18).

-1-

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The opinion of the North Carolina

Court of Appeals, which reversed the

Petitioner's conviction and remanded the

case for a new trial, is reported at 68

N.C. App. 33, 314 SE 2d 134 (Appendix B,

infra pp. B-1 to B-20).

The opinion of the North Carolina

Superior Court denying the Petitioner's

motion to suppress was not reported, but is

set forth in Appendix C, infra, pp. C-1 to

C-6. *

JURISDICTION

The judgment of the Morth Carolina

Supreme Court (App. A, infra, pp. A-1 to

A-19) was entered on November 6, 1984 and

pursuant to Rule 31(g) of the North

Carolina Rules of Appellate Procedure no

right or privilege for rehearing is

provided before the North Carolina Supreme

Court in criminal cases. The jurisdiction

of this Court is invoked under 28 U.S.C.

1257(3).

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CONSTITUTIONAL PROVISIONS INVOLVED

1. The Fourth Amendment to the

United States Constitution provides in

relevant part:

"The right of the people to be secure

in their persons, houses, papers and

effects, against unreasonable

searches and seizures shall not be

violated,..."

STATEMENT OF THE CASE

On December 28, 1982 John Preston

Jolley, Sr. died as a result of excessive

bleeding caused by multiple gunshot wounds.

On that day Deputy Mike Summers of the

Rutherford County Sheriff's Department was

dispatched to the home of Mr. Jolley in

Ellenboro, North Carolina, and upon arrival

found Mr. Jolley lying at the base of the

couch in the den. He also found Mrs. Hazel

Jolley, the widow and petitioner herein,

o }-

crouched behind the kitchen bar crying and

visibly upset. EMT personnel had already

arrived upon the scene and were attending

to Mr. Jolley. Deputy Summers, while in

the home, noticed a rifle similar to that

marked as State's Exhibit One on a chair in

the den. However, Deputy Summers did not

examine the gun and made no positive

identification of State's Exhibit One at

trial.

Shortly after arriving at the Jolley

home, Deputy Summers escorted the

petitioner to his patrol car and advised

her of her constitutional rights under the

Miranda Decision. Thereafter, he roped off

and secured the area with a crime scene

poster. According to Officer Summers, some

fifteen to twenty minutes later Detective

David Philbeck of the Rutherford County

sks

Sheriff's Department arrived at the Jolley

home. Deputy Summers advised Detective

Philbeck “he didn't know if he had a

homicide or an accidental shooting. "

Deputy Summers then took the petitioner to

the Rutherford County JaiL

While the petitioner was at the

Rutherford County Jail being interrogated |

Detective Philbeck, without the authority

of a search warrant and without a member of

the Jolley family present, commenced a

search of the home. The record shows he

was at the home for six hours and during

such time confiscated certain items from

the home including a JC Higgins semi-

automatic 22 caliber rifle and several

spent shell casings. The petitioner filed

a written motion before trial to suppress

these items, but they were admitted into

evidence over the objection of the

-5-

petitioner and the gun was -atroduced as

State's Exhibit One.

Based upon the evidence presented by

the State, which included State's Exhibit

One, the JC Higgins 22 semi-automatic

rifle, and test results pertaining to said

rifle, a jury returned a verdict of guilty

to second degree murder and the petitioner

was given a ten year active sentence.

Thereafter, an appeal was taken to the

North Carolina Court of Appeals which

determined, pursuant to Mincey v. Arizona,

437 U.S. 385 (1978), that State's Exhibit

One was seized as a result of an unlawful

search and seizure and the conviction of

the petitioner was overturned and the case

was remanded for a new trial. The State of

North Carolina then took an appeal from the

decision of the North Carolina Court of

-6-

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Appeals and the North Carolina Supreme

Court, in an opinion filed November 6,

1984, reversed the decision of the North

Carolina Court of Appeals and remanded the

case for enforcement of the sentence. The

North Carolina Rules of Appellate Procedure

specifically provide in Rule 31 (g) that

the North Carolina Supreme Court will not

entertain petitions for rehearing in

criminal actions. Therefore, this petition

for a writ of certiorai was filed.

REASONS FOR GRANTING THE WRIT

A writ of certiorari in the case at

bar should issue because the decision of

the North Carolina Supreme Court is in

direct contravention of the Fourth

Amendment of the United States Constitution

and in direct contravention of the

-]-

decisions of the United States Supreme

Court in the cases of Thampson v.

Louisiana U. S. (1984) 53

U.S.L.W. 3396 (November 26, 1984) (No.

83-6775), Mincey v. Arizona, 437 U.S. 385

(1978), United States v. Chadwick, 433

U.S. 1 (1977), and Vale v. Louisiana, 399

U.S. 30 (1970).

One of the cornerstones of our

American heritage, and a foundation of our

freedom, is the mandate that the people

shall be secure in their persons, houses,

papers, and effects against unreasonable

searches and seizures. Historically, it

has been the appellate bench which has most

often been called upon to echo the wisdom

of our forefathers and to curb the

overzealous actions of law enforcement

-8-

officers by enforcing the warrant clause of

the Fourth Amendment. Such is the plea at

hand.

Certainly, the most instructive case

on point is that of Thompson v. Louisiana,

supra, which is identical to the facts of

the instant case and which was decided

twenty days after the North Carolina

Supreme Court filed its opinion in this

case. In Thompson, deputies arrived at the

home of the defendant pursuant to a call

for help made by the defendant's daughter.

The deputies entered the home and made a

cursory search of the premises and found

the defendant's husband dead as a result of

gunshot wounds and the defendant

unconscious due to an apparent drug

overdose. The defendant's daughter

-9-

informed the officers that her mother had

shot her husband and then attempted

suicide. The deputies then transported the

defendant to the hospital and secured the

scene (emphasis added). Thirty-five

minutes later homicide detectives arrived,

entered the home, and conducted a two hour

search of the house during which time

certain items were seized. Relying upon

the precedent of Mincey v. Arizona, supra,

the United States Supreme Court in a per

curiam decision held the evidence seized

pursuant to this search was seized in

violation of the Fourth Amendment and

should have been suppressed at trial. This

decision thereby reversed the decision of

the Supreme Court of Louisiana which had

held the evidence admissible.

=-l0-

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In deciding Thompson, the United

States Supreme Court reiterated that no

"murder scene exception" to the warrant

clause existed. The court acknowledged

that the police may make warrantless

entries on the premises where "they

reasonably believe that a person within is

in need of immediate aid,” but the court

indicated such right does not extend

further once it has been determined that

the need for such aid has abated. The

court further acknowledged that the call

for help did not constitute an invitation

to the police or general public of such

magnitude as to open the defendant's hame

to the search of officers after the

defendant's removal.

Measuring the case at bar against the

Thompson case, it becomes apparent that the

search and seizure in this instance also

-||-

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violates the Fourth Amendment warrant

clause and the principles espoused in

Mincey as was held by the North Carolina

Court of Appeals. It is apparent fram the

Thampson decision that the call for help is

insufficient to constitute consent to a

search of the house when the defendant is

not present. Similarly, it makes no

difference in this instance that the

challenged search occurred only shortly

after the body of the decedent had been

removed. Although it is true that the

first officer on the scene had the right to

enter the premises to render immediate aid,

the evidence reflects that this officer

thereafter “secured the scene” by roping

the area. By doing so, he removed any

exigency which may have existed concerning

the destruction of evidence. It is

ote

submitted that upon this “securing of the

scene" the constitutional line was draw

and any entry and attendant seizure by the

officers after that time without the

benefit of warrant was in violation of the

petitioner's right to be secure in her home

against unreasonable searches and seizures.

Seivtihine. the illegality of the entry is

accentuated by the fact that the first

officer on the scene, Officer Summers,

stated to Detective Philbeck upon his

arrival that he didn't know "if he had an

accidental shooting, a homicide or what. "

It is evident that, at this point in tine,

no probable cause existed, at least in the

mind of Officer Summers, to believe a crime

had been committed. Finding no consent or

exigent circumstance to justify the search

of the home or the seizure of the rifle,

°13-

introduced as State's Exhibit One, the

North Carolina Court of Appeals, relying

upon Mincey, reversed the petitioner's

conviction and remanded the case for a new

trial.

The North Carolina Supreme Court in

reversing the decision of the North

Carolina Court of Appeals indicated the

focus of that court upon the "exigent

circumstance" and "consent" exceptions to

the warrant clause was misplaced. Instead,

it indicated the critical question was the

point in time the rifle was seized, which

is defined as the point when the scene was

secured. Unfortunately, that court did not

proceed to delineate the differences

between a legal seizure versus a legal

search. Instead, it held that all property

within the "secured crime scene" which was

in plain view and which the officer had

o}h-

probable cause to associate with criminal

activity is thereby lawfully seized within

the meaning of the Fourth Amendment. Thus,

in essence, the court held that a lawful

seizure of the area clothed any search of

the home and a seizure of any items therein

with the same legality. Further, the court

failed to recognize that the plain view

doctrine does not apply unless the item

comes into plain view as a result of the

lawful conduct of the officer (emphasis

added). Harris v. United States, 390 U.S.

234 (1967). There was no identification by

Officer Summers at trial of State's Exhibit

One and further, it is clear that an actual

search for, and seizure of, the items in

the home by Detective Philbeck occurred

after the scene was secure and any

exigency had been removed. In addition,

-15-

the United States Supreme Court has clearly

indicated the reasonableness of the seizure

does not necessarily dictate the

reasonableness of the search. See Segura

v. United States, U.S. , 104

S. Ct. 3380 (1984). In Segura, the

Supreme Court of the United States noted

that seizure affects only a possessory

interest while a search impinges upon a

privacy interest, and it is submitted that

it is this privacy interest which merits

heightened protection.

The Supreme Court of the United States

addressed a situation instructive on this

point in United States v. Chadwick, 433

U.S. 1,(1977). In Chadwick federal

officers confiscated a footlocker as the

defendant disembarked fram atrain. An

hour and a half after the arrest of the

«thn

defendant a search of the footlocker was

conducted without benefit of warrant and

large amounts of marajuana were found. The

trial court allowed the defendant's motion

to suppress on the ground that the search

was in violation of the warrant clause of

the Fourth Amendment. The Fifth Circuit

affirmed the suppression and the United

States Supreme Court, speaking through

Chief Justice Burger, also affirmed. In

supporting this decision, Justice Burger

noted that the footlocker was in the

exclusive control of the federal agents and

the defendant was securely in custody.

Therefore, the search could not be viewed

as incidental to the arrest or as justified

by any other exigency. United States v.

Chadwick, supra at 2485-2486. The right to

invade the possessory interest in the

-]7=

footlocker was not challenged, but the

right to invade the privacy interest in the

footlocker by way of search was challenged

in this instance and such search was held

improper without the benefit of warrant.

The same rationale applies to the case now

before the court.

It has long been held that the

sanctity of the home should not be invaded

by government agents absent exigent

circumstances and it is the government's

burden to prove the existence of such

circumstances to overcome the presumption

of impropriety that attaches to all

warrantless hame searches. Welsh v.

Wisconsin, U.S. , 4%& Ct

2091 (1984). More importantly, it has been

recognized that the home is sacred in

=

Fourth Amendment terms primarily because of

the privacy interests as opposed to

possessory interests. Segura v. United

States, supra.

Using these principles to chart the

course of constitutionality, it is apparent

Officer Summers had a right to enter the

home pursuant to a call for help. The

evidence reveals he saw a rifle on a chair

but he did not confiscate the gun and made

no positive identification at trial.

Thereafter, Officer Summers removed the

petitioner and placed her in his patrol car

and advised her of her Miranda rights. At

this time the decedent was also being

removed fran the home and Officer Summers

then secured the scene. Based upon the

standard espoused by the North Carolina

Supreme Court and based upon Officer

-19-

Summers' own admission that he didn't know

if he had an accidental shooting or an

intentional homicide, it is questionable

whether such "seizure" of the premises was

lawful. This is so because the high court

of North Carolina held that such seizure

would be proper only when there was

probable cause in the officer's mind

(emphasis added) to associate the same with

criminal acitivity. It is clear from

Summers' statements that the probabilities

of accident or murder lay equally balanced

in his mind. Obviously, if the test of

probable cause fails in this instance, the

search fails and the petitioner's motion to

suppress should have been allowed even upon

the North Carolina Supreme Court's ow

standard.

-~20-

However, assuming only for the sake of

argument that the securing of the scene was

a proper invasion of the petitioner's

possessory interests, it is clear that the

six hour search of the petitioner's home by

Detective Philbeck and his confiscation of

the rifle which was later introduced as

State's Exhibit One was an improper

invasion of the petitioner's privacy

interests. Once the petitioner was

transported to the Rutherford County Jail

and once the premises were secured, there

was no threat of any evidence being

destroyed in the home or taken away.

Therefore, there was no exigency or consent

to justify entry into the hame by any

officer. More than sufficient time was

provided for the review by a magistrate of

the facts and circumstances to determine

-2\1-

whether the issuance of a warrant was

merited. To bypass this constitutional

safeguard is to tread upon the rights of

the petitioner and to enter upon ground

forbidden by the exclusionary rule. It is

this protected area which is the haven of

all citizens and which protects the

citizenry from overzealous law enforcement

and the threat of a police state. With

conviction in hand the police would argue

their action was wise and appropriate.

However, there is no question the evidence

in the form of the rifle was tainted as

well as the test results taken therefran

There is also no question that our

forefathers drafted the Fourth Amendment

for the wisdam of all and all cases must be

judged by this greater view.

-22-

In conclusion, it is submitted that

the North Carolina Court of Appeals'

reliance upon Mincey v. Arizona, supra, in

reversing the petitioner's conviction on

the ground that the rifle in question

should have been suppressed from evidence

as the petitioner requested was well

founded. Certainly, Mincey was the polar

star which guided the United States Supreme

Court in Thompson on identical facts.

Additionally, it is submitted that the

Supreme Court of North Carolina failed to

distinguish between the varying standards

for reasonable searches versus reasonable

seizures. Its failure to carry its

analysis to this extent and its failure to

apply the principle of Mincey underscores

the error in its ruling. Therefore, based

upon Thompson, Mincey, Chadwick, and

-23-

Segura, it is respectively requested that a

writ of certiorari be granted.

CONCLUSION

For the reasons stated and due to the

similarity of the Thompson case and the

ruling of the United States Supreme Court

therein, this Court shculd grant a writ of

certiorari to review the judgment and

opinion of the North Carolina Supreme

Court. Indeed, so clear is the error of

the North Carolina Supreme Court, it is

submitted that the appropriate relief would

be summary reversal of the decision.

Respectfully submitted, this the 27th

Gay of December, 1984.

Walter H. Dalton

Attorney for Defendant

HAMRICK, BOWEN, NANNEY & DALTON

511 North Washington Street

Rutherfordton, NC 28139

Telephone: 704-286-9152

-2h-

FILING AND MAILING CERTIFICATE

I, Barbara E. Grove, hereby certify that

on this °7thday of December, 1984, I filed

with the Clerk's Office of the Supreme Court

of the United States the foregoing Petition

for a Writ of Certiorari and further certify that

I mailed this same date the required copies to

the opposing counsel listed below:

Roy Giles

Assistant Attorney General

Post Office Box 629

Department of Justice

Raleigh, NC 27602

Aastra & Dusce

Barbara E. Grove

Lawyers Printing Co.

701 E. Franklin Street

Richmond, VA 23219

(804) 648-3664

APPENDIX A

IN THE SUPREME COURT OF NORTH CAROLINA

Filed November 6, 1984

STATE OF NORTH CAROLINa«a, No. 237A84-

vs. Rutherford

HAZEL MAE JOLLEY )

On appeal of right by the State of North

Carolina from the decision of the Court of

Appeals, 68 N.C. App. 33, 314 S.E.2d 134

(1984), reversing judgment entered by

Brown, J., at the 25 May 1983 session of

Superior Court, Rutherford County. Heard

in the Supreme Court 8 September 1984.

Evidence for the state tended to show

that on 28 December 1982 Defendant shot and

killed her husband, John Preston Jolley, at

the Jolley residece on Oak Grove Road in

Ellenboro. Mr. Jolley was shot with a .22

semi-automatic rifle. Immediately after

shooting her husband, defendant dialed a

telephone operator and asked that help be

sent to the Jolley residence.

A-1

TT

Members of a volunteer rescue squad and

deputies from the Rutherford County

Sheriff's Department responded to

defendant's call for help. The rescue

personnel arrived first and began

performing emergency cardiopulmonary

resuscitation procedures on Mr. Jolley.

Deputy Summers of the Sheriff's Department

was the first law enforcement officer to

arrive. He arrived about 3:00 P.M. and saw

the rescue technicians working on the

victim, who was lying on the floor in front

of a couch in the den-kitchen area of the

house.1 Deputy Summers observed a .22

semi-automatic rifle leaning against a

chair about six feet from the victim. He

also observed defendant kneeling on the

floor of the kitchen, sobbing. Officer

Summers decided to escort defendant out of

the house because he felt that it would

help her emotionally to be away from her

A-2

husband's body. He took her outside and

placed her in the front seat of his patrol

car. He then returned to the house as

rescue personnel were carrying the victim

Out to an ambulance. Deputy Summers

testified that after the victim and the

emergency personnel left, "I secured a rope

and crime scene poster out of the trunk of

my patrol car and roped off the residence

the best I could. Officer Bill Watts came

at that time and about that time Major

Philbeck arrived. I had been there ten or

fifteen minutes when Major Philbeck

arrived." Major Philbeck went into the

house as Summers and Watts were advising

defendant of her Miranda rights. Summers

then went into the house and conferred

briefly with Philbeck, after which Summers

drove defendant to the Rutherford County

Jail.

A-3

Major Philbeck testified that when he

entered the house he saw a .22 caliber

rifle lying in a chair next to a wall. He

also found some spent cartridges and shells

in the house. Philbeck stayed at the

Jolley residence for six hours, after which

he took the .22 caliber rifle and the

cartridges and shells to the Rutherford

County Jail. These items were introduced

into evidence during defendant's trial.

Defendant's evidence tended to show that

on the 28 December 1982 her husband was

resting on the sofa in their den when

defendant decided to go shopping.

Defendant intended to buy some bullets and

took a rifle out of its gun rack in the den

to see what kind of bullets it required.

Defendant testified:

"I got it down and came in front of the

T.V. and started toward the kitchen

where the light was on where I could

see to take one of the bullets out of

A-4

the thing. The next thing I remember

is that he was lying on the floor hurt.

I threw the gun behind me and went to

him. I don't remember the gun going

off.

After the gun went off defendant dialed the

telephone operator for help.

Defendant also introduced evidence to

the effect that multiple discharges are

common in the kind of gun used to shoot the

victim.

Defendant was convicted of murder in the

second degree and was sentenced to ten

years in prison. Defendant appealed the

judgment to the Court of Appeals, which

reversed and remanded for a new trial.

Because there was a dissenting opinion in

the Court of Appeals, defendant was

entitled to an appeal of right to this 7

Court pursuant to N.C.G.S. 7A-30(2).

RUFUS L. EDMISTEN, Attorney General,

by ROY A. GILES, JR., Assistant

Attorney General, for the state.

A-5

WALTER H. DALTON for defendant.

MARTIN, Justice.

The sole issue in this appeal is whether

the Court of Appeals erred in holding that

the rifle transported to the Rutherford

County Jail by Major Philbeck was

improperly admitted into evidence at trial.

We hold that the Court of Appeals did so

err, and thus we reverse.

As the opinion of the Court of Appeals

notes, on 20 April 1983 defendant filed a

motion to suppress the .22 caliber rifle

and any test results from the gun. The

basis of this motion was stated as

follows:

Its exclusion is required by the

Constitution of the United States

or the Constitution of North Carolina

in that it resulted from an

unreasonable search and seizue and

in addition, it was obtained as a

result of a substantial violation

of the provisions of Chapter 15A of

the General Statutes in that the

sworn testimony of the officers

A-6

involved at the probable cause hearing

Clearly show that the defendant was

arrested at her home on December 28,

1982 and was taken to the Rutherford

County Jail; thereafter, other officers

proceeded to her residence without the

authority of a search warrant and under

no recognized exception to the

requirement of a search warrant and

entered the defendant's premises

without the consent of the defendant

and without her being present and

in violation of law and thereafter,

seized the .22 rifle, J. C. Higgins

model, which the defendant now seeks

to suppress, together with any test

results relating to said rifle; that

said intrusion into the defendant's

home without the authority of a

search warrant was unlawful and a

substantial violation of her rights

and in violation of the Pourth

Amendment of the United States

Constitution and in violation of

Chapter 15A of the North Carolina

General Statutes.

After a hearing the trial court made the

following findings of fact:

That on December 28, 1982 at 3:00 P.M.,

Deputy Michael Summers of the

Rutherford County Sheriff's Department

went to the home of John Preston Jolley

and Hazel Mae Jolley to investigate

a possible shooting; that he found

John Jolley in the den on the floor

and EMT personnel were working on him.

A-7

That he saw a .22 rifle in a chair in

the den area.

That the Defendant, Hazel Mae Jolley,

was in the kitchen area in a squatting

position

That Summers asked her to sit in the

patrol car, that he thought getting her

out of the house would help her

emotional state, that he thereafter

helped rope the area off to secure the

scene, that he spoke with the defendant

in his patrol car, and advised her of

her rights, on a form used by the

Rutherford County Sheriff's Department.

That Detective David Philbeck had

arrived at the Jolley residence about

five minutes after 3:00, and Summers

turned control of the premises over

to him.

That Philbeck went inside the residence

where he made photographs, seized the

rifle, spent cartridges, a lead

fragment, made a diagram, and visually

observed the premises.

The trial court then denied defendant's

motion to suppress the gun and test

results.

A-8

The Court of Appeals held that Philbeck

had conducted a warrantless search not

justified under either the consent to

search or exigent circumstances exceptions

to the warrant requirement of the fourth

amendment to the United States

Constitution. See, e.g., Mincey v.

Arizona, 437 U.S. 385, 57 L. Ed. 2d 290

(1978). Therefore the Court of Appeals

concluded that his removal of the gun was

an illegal seizure and the gun and test

results from it should not have been

permitted into evidence.2

While the Court of Appeals’ discussion

of the two exceptions to the warrant

requirement is interesting, it is

irrelevent to the present set of facts.

The Court of Appeals erred in failing to

focus upon the key issue in this case: at

what point was the rifle in question seized

within the meaning of the fourth

amendment?

A-9

We hold that when a law enforcement

officer enters private premises in response

to a call for help and thereby comes upon

what reasonably appears to be the scene of

a crime, and secures the crime scene from

persons other than law enforcement officers

by appropriate means, all property within

the crime scene in plain view which the

officer has probable cause to associate

with criminal activity is thereby lawfully

seized within the meaning of the fourth

amendment. Officers arriving at the crime

scene thereafter and while it is still

secured can examine and remove property in

plain view without a search warrant. As

the Supreme Court of the United States

observedé in Mincey vs. Arizona, 437 U.S.

385, 392-93, 57 L. Ed. 2d 290, 300:

We do not question the right of the

police to respond to emergency

Situations. Numerous state and

federal cases have recognized that

the Fourth Amendment does not bar

A-10

police officers from making warrantless

entries and searches when they

reasonably believe that a person

within is in need of immediate aid...

.-And the police may seize any

evidence that is in plain view during

the course of their legitimate

emergency activities.

(Citations and footnotes omitted.) Accord

Texas vs. Brown, 460 U.S. 730, 739, 75 L.

Ed. 2d 502, 512 (1983) ("[I]Jf£, while

lawfully.-engaged in an activity in a

particular place, police officers perceive

a suspicious object, they may seize it

immediately.”). The present case is also

similar to State vs. Robbins, 275 N.C. 537,

545, 169 S.E.2d 858, 863 (1969), in which

this Court stated:

In the instant case the officer was not

engaged in a search for evidence to be

used in a criminal prosecution. He

entered defendant's dwelling at the

request of defendant's brothers, who

were very apprehensive and worried

about defendant. Under the present

A-11

law the officer would not have had any

basis to request a search warrant since

he could not allege a particular object

which he sought. State vs. Bullard,

267 N.C. 599, 148 S E. 2d 565. He was

simply lending the strong arm of the

law to a distressed family who feared

that harm had come to their brother

and sister-in-law. The officer's

presence was lawful and his testimony

as to things in plain view was properly

admitted into evidence.

See also Illinois vs. Andreas, U.S. ’

, 77 Le. Ed. 2d 1003, 1010 (1983)

("{O]nce police are lawfully in a position

to observe an item first-hand, its owner's

privacy interest in that item is lost...").

Cf. United States vs. Jacobsen, _U.S.__,

__, 80 L. Ed. 2d 85, 98 (1984) ("The

agent's viewing of what a private party had

freely made available for his inspection

did not violate the Fourth Amendment.");

Katz vs. United States, 389 U.S. 347, 351,

19 L. Ed. 2d 576, 582 (1967) ("What a

person knowingly exposes to the public,

even in his own home...is not a subject

A-12

of the Fourth Amendment protection."). See

Coolidge vs. New Hampshire, 403 U.S. 443,

29 L. Ed. 2d 564 (1971) (plurality

opinion).

This holding is in accord with the

following post-Mincey cases: People vs.

Harding, 620 P.2d 545 (1980) (blood-stained

wallpaper and blood-stained housecoat

properly seized as evidence "in plain

view"); Wooton vs. State, 398 So. 2d 963

(Fla. App. 1981) (stressing seizure was of

"items of evidence which were in plain

view" and that there "was no inspection of

drawers or closets"); Grant vs. State, 374

So. 2d 630 (Fla. App. 1979) (weapons in

plain view near body); State vs. Johnson,

413 A. 2d 931, 934 (Me. 1980), appeal after

remand, 434 A. 2d 532 (Me. 1981) (police

who initially entered secured the premises

and then waited outside until medical

A-13

examiner and lab technician arrived and

then all entered; held, this a permissable

reentry; “the polic conducted a very

limited search, seizing only items that

were in plain view"); State vs. Anderson,

42 Or. App. 29, 599 P. 2d 1225 (1979),

cert. denied, 446 U.S. 920 (1980) (proper

to maintain control of scene three hours

and then record scene with videotape camera

where “officers photographed only what was

in plain view"); State vs. Eacret, 40 Or.

App. 341, 345, 595 P.2d 490, 493 (1979)

("officers were entitled to photograph and

seize evidence in plain view"); State vs.

Martin, 274 N.W. 2d 893 (S.D.), cert.

denied, 444 U.S. 883 (1979).

"A ‘seizure’ of property occurs when

there is some meaningful interference with

an individual's possessory interests in

that property.” United States vs.

A-14

Jacobsen, U.S. P , 80 L. Ed. 2d 85,

94 (1984) (footnote omitted). When an

officer secures a crime scene he has

limited the ability of persons other than

law enforcement officers to remove items

from within the secured area. State vs.

Brown, 306 N.C. 151, 293 S.E. 2d 569 (1982)

(crime scene that had been cordoned off and

secured by police was within the possession

and control of the state); N.C. Gen. Stat.

§ 15A-903(d) (1983). Such items have thus

been “seized.” See Hale vs. Henkel, 201

U.S. 43, 76, 50 L. Ed. 652, 666 (1906).

Seizure of evidence in plain view by the

securing of a crime scene is also analogous

to seizure of a person: "[(W]jhenever a

police officer accosts an individual and

restrains his freedom to walk away, he has

"seized’' that person.” Terry vs. Ohio, 392

U.S. 1, 16, 20 L. Ed. 2d 7 889, 903 (1968).

A-15

See also Michigan vs. Summers, 452 U.S.

692, 69 L. Ed. 2d 340 (1981).

It is clear that in the instant case

Deputy Summers lawfully entered the Jolley

residence reasonably believing that a

person inside was in need of immediate aid.

Defendant herself called the telephone

Operator to ask specifically that help be

sent quickly. When Summers first entered

the Jolley house, the rifle at issue was in

plain view, six feet from where the victim

was felled. Deputy Summers had probable

cause to associate the rifle with criminal

activity. Texas vs. Brown, 460 U.S. 730,

75 L. Ed. 2d 502.3 He thereupon secured

the residence by roping it off and posting

signs. He thereby lawfully seized the

rifle. Because the rifle was lawfully

seized, it was properly admitted into

A-16

evidence. Philbeck, as a law enforcement

officer who also arrived at the scene as a

result of defendant's call for help, had

every right to enter the area secured by

Deputy Summers. Once lawfully inside this

area he then properly transported to the

county jail the rifle which was in plain

view and which had been seized by the

securing of the crime scene. It follows

that the test results were likewise

admissible.

We need not decide whether the

additional items identified by Major

Philbeck were competent as evidence, as

defendant is not contesting their admission

into evidence. The evidence at issue in

this case was not obtained by a search, but

was seized by being in plain view within

the crime scene when it was secured by

Deputy Summers. See Mincey vs. Arizona,

437 U.S. 385, 57 L. Ed. 2d 290.

The decision of the Court of Appeals is

REVERSED.

A-17

FOOTNOTES

1. The den and kitchen comprised one

large room partially separated by a bar.

2. The record reveals that defendant

did not object to Officer Summers'

testimony about the gun. Thus she has

waived all objections concerning the gun

and its test results. N.C. Gen. Stat.

§1446(b) (1983). Nevertheless, in our

discretion we have decided to review the

matter.

3. It was not necessary that the

officer knew the rifle was evidence of a

crime in order to comply with the

"immediately apparent" requirement of

Coolidge vs. New Hampshjire, 403 U.W. 443,

29 L. Ed. 2d 564 (1971). It is sufficient

if the facts available to the officer would

warrant a man of reasonable caution in the

belief that the rifle may be useful as

evidence of a crime. Texas vs. Brown, 460

U.S. 730, 75 L. Ed. 2d 502 (1983).

A-18

rr

APPENDIX B

NO. 8329SC895

NORTH CAROLINA COURT OF APPEALS

Filed: 17 April 1984

STATE OF NORTH CAROLINA

Ve Rutherford County

HAZEL MAE JOLLEY No. 82CRS7932

Appeal by defendant from Brown,

Judge. Judgment entered 26 May 1983 in

Rutherford County Superior Court. Heard in

the Court of Appeals 15 February 1984.

Evidence offered at trial tended

to show the following pertinent facts. On

28 December 1982 John Jolley, Sr., died as

a result of multiple gunshot wounds.

Rutherford County Deputy Sheriff Mike

Summers, responding to a call for help,

found Jolley lying on the floor in his home

being attended by emergency medical

technicians. He also found defendant,

Jolley's widow, crouched beside the kitchen

bar crying. He observed a gun similar to

that later introduced as state's exhibit

number one in the den. He did not examine

or seize the gun or make a positive

identification of it at trial.

Shortly after arriving, Deputy

Summers placed defendant in his patrol car

and advised her of her Miranda rights.

Jolley's body was removed from the house

|

+

|

and Deputy Summers "roped off" the crime

} scene. Shortly thereafter Detective

Philbeck arrived and Summers informed him

that he was unsure whether the shooting was.

] a ~smicide or accidental. Mrs. Jolley was

| taken to jail. No other member of the

defendant's family was present at the

house.

B-2

a

Without seeking consent and

without obtaining a search warrant,

Detective Philbeck conducted a six hour

search of the home. During this search he

confiscated a semi-automatic .22 caliber

rifle and several spent shell cases. The

items were introduced at trial over

defendant's objection.

At the Rutherford County jail,

defendant gave a statement indicating that

the shooting was accidental. Later that

evening Detective Simmons disassembled the

seized rifle. The rifle was then

reassembled and tested by firing one

bullet. Based upon his examination and

testing of the rifle Detective Simmons

was allowed to give his opinion at

trial that the weapon was functioning

properly. An S.B.I. agent who

later examined the weapon was allowed to

testify that, based upon his examination of

the weapon, it was functioning properly.

Defendant, testifying in her own

defense, presented evidence which tended to

show the following facts and events. On 28

December 1982, her husband was resting on

the sofa in their house, and defendant was

going out shopping and decided to buy some

new bullets for the gun. The gun was

loaded because some time prior to this her

daughter's estranged husband had come to

the house and tried to cause trouble. On

that occasion the daughter pointed the gun

at her husband, but he took it away from

her and threw it to the ground, damaging

it. Defendant's son repaired the gun, and

told defendant that the bullets needed to

be replaced. While defendant was carrying

the gun to the kitchen to determine what

B-4

type of bullets were needed, the gun

discharged, striking her husband.

Defendant also offered testimony from

expert witnesses who stated that multiple

discharges were common with these type

weapons and that they should be tested ina

controlled environment before they were

disassembled and then reassembled.

Defendant was convicted of second

degree murder and from a judgment

sentencing her to imprisonment for a term

of ten years she appealed.

Attorney General Rufus L.

Edmisten, by Assistant Attorney General Roy

A. Giles, Jr., for the State.

Hamrick, Bowen, Nanney & Dalton,

by Walter H. Dalton, for defendant.

B-5

WELLS, Judge.

In her second assignment of error

defendant contends the court erred in

denying her motion to suppress the state's

exhibit number one, a J. C. Higgins .22

semi-automatic rifle, on the grounds that

the gun was obtained as a result of an

illegal search and seisdre. We agree and

grant defendant a new trial.

On 20 April 1983, defendant filed

a motion to suppress alleging, inter alia:

The grounds for the

suppression of this evidence are

as follows:

(a) Its exclusion is

required by the Constitution of

the United States or the

Constitution of North Carolina in

that it resulted from an

unreasonable search and seizure

and in addition, it was obtained

as a result of a substantial

violation of the provisions of

Chapter 15A of the General

Statutes in that the sworn

B-6

“

= ET Ee ei LS ENTE TRE IS CE

es Salieri ela a lal

testimony of the officers

involved at the probable cause

hearing clearly show that the

defendant was arrested at her

home on December 28, 1982 and was

taken to the Rutherford County

Jail: thereafter, other officers

proceeded to her residence

without the authority of a search

warrant and under no recognized

exception to the requirement of a

search warrant and entered the

defendant's premises without the

consent of the defendant and

without her being present and in

violation of law and thereafter,

seized the .22 rifle, J. C.

Higgins model, which the

defendant now seeks to suppress,

together with any test results

relating to said rifle; that said

intrusion into the defendant's

home without the authority of a

search warrant was unlawful and a

substantial violation of her

rights and in violation of the

Fourth Amendment of the United

States Constitution and in

violation of Chapter 15A of the

North Carolina General Statutes.

Following a hearing on the motion the trial

court made the following pertinent findings

of fact and conclusions of law:

That on December 28, 1982 at

3:00 p.m., Deputy Michael Summers

B-7

of the Rutherford County

Sheriff's Department went to the

home of John Preston Jolley and

Hazel Mae Jolley to investigate a

possible shooting; that he found

John Jolley in the den on the

floor and EMT personnel were

working on him.

That he saw a .22 rifle ina

chair in the den area.

That the Defendant, Hazel

Mae Jolley, was in the kitchen

area in a squatting position.

That Summers asked her to

sit in the patrol car, that he

thought getting her out of the

house would help her emotional

state, that he thereafter helped

rope the area off to secure the

scene, that he spoke with the

defendant in his patrol (car) and

advised her of her rights, on a

form used by the Rutherford

County Sheriff's Department.

That Detective David

Philbeck had arrived at the

Jolley residence about five

minutes after 3:00, and Summers

turned control of the premises

over to him.

That Philbeck went inside

the residence where he made a

diagram, and visually observed

the premises.

From the foregoing findings

of fact the Court concludes:

1. That a search warrant

was not required for Detective

B-8

#

os

na

—

¢

a8

7

un 6

~h

Phiibeck to enter the Jolley home

and conduct an investigation of

the shooting of John Preston

Jolley; and that the evidence

seized is competerit and should be

admitted into evidence.

Based upon these findings and

conclusions the motion to suppress was

denied.

Searches conducted without

properly issued search warrants are per se

unreasonable under the Fourth Amendment,

unless they fall within certain specific

exceptions. Among these exceptions are

exigent circumstances and ccnsent to

search. Coolidge v. New Hampshire, 403,

91S. Ct. 2022, 29 L. Ed. 2d 564, reh.

denied, 404 U.S. 874, 92 S. Ct. 26, 30 L.

Ed. 2d (1971). The trial court did not

find that either of these exceptions

existed, but denied the motion to suppress

B-9

because he concluded that "a search warrant

was not required for Detective Philbeck to

enter the Jolley home and conduct an

investigation of the shooting." The state

first contends that the trial court was

correct based upon the theory that the

search was conducted under exigent

circumstances. Secondly, the state

contends that Detective Philbeck had

consent to search the house. We cannot

agree with either of these contentions.

The exigent circumstances

argument must be rejected in light of the

United States Supreme Court decision in

Mincey v. Arizona, 437 0.8. 385, 98 S. Ct.

2408, 57 L. Ed. 2d 290 (1978). In Mincey a

gun battle erupted during the undercover

Crug buy at defendant's department. Once

this happened officers stormed the

apartment and rendered aid to the wounded.

B-10

Within ten minutes of the shooting,

detectives not involved in the undercover

transaction arrived at the apartment and

began a four day search of the premises.

Among the items seized during the search

were illegal drugs. Defendant was

convicted of assault, homicide and

narcotics offenses. The Arizona Supreme

Court, in upholding the narcotics

convictions, held that the warrantless

search of defendant's apartment was

permissible since it was part of a routine

homicide investigation. On appeal, the

United States Supreme Court reversed

defendant's conviction holding that the

warrantless search violated defendant's

constitutional rights. In its decision the

Court said:

We do not question the right

of the police to respond to emergency

situations....(t)he Fourth Amendment

B-11

WO NT SR Te me RU

does not bar police officers from

making warrantless entries and

searches when they reasonably believe

that a person within is in need of

immediate aid. Similarly, when the

police come upon the scene of a

homicide they may make a prompt

warrantless search of the area to see

if there are other victims or if a

killer is still on the

premises.....But a warrantless search

must be ‘strictly circumscribed by the

exigencies which justify its

initiation....'

(Citations omitted). Id.

In the case at bar, when Detective

Philbeck arrived at the scene, defendant

and the victim had been removed, and the

scene, as Philbeck found it presented no

exigent circumstances. Under the rule of

Mincey vs. Arizona, supra, the legality of

Detective Philbeck's search could not be

based on exigent circumstances.

The state also contends that Detective

Philbeck was in the house with the consent

of the defendant. "It is well settled that

B-12

a person may waive his right to be free

from unreasonable searches and seizure. A

consent to search will constitute such a

waiver, only if it clearly appears that the

person voluntarily consented, or permitted,

or expressly invited and agreed to the

search." State vs. McPeak, 243 N.C. 243,

90 S.E. 2d 5-1 (1955). When the state

relies upon consent as a basis for a

warrantless search, the police have no more

authority than that they have been given by

the consent. 2 W. LaFave, Search and

Seizure, § 8.1 (1978). The trial court did

not find that there was a consent to

search. When a trial court makes no

findings of fact relating to an issue and

there is no conflict in the voir dire

testimony "the necessary findings are

implied" from the court's admission of the

evidence. State vs. Biggs, 289 N.C. 522,

B-13

223 S.E. 2d 371 (1976). Under the rule of

Biggs we imply that the trial court found

that consent was given in light of the

denial of defendant's motion to suppress.

The court's findings of fact are conclusive

on appeal only if they are supported by

competent evidence. State vs. Biggs,

supra.

In the case at bar the only consent

given was consent, in the form of a phone

call, to come into the house to aid the

victim. We do not believe that this

invitation can properly be used to show

consent to a search of the premises by an

officer who was not involved in aiding the

victim. There was nothing in defendant's

conversations with Deputy Summers to

indicate that defendant consented to a

search by Detective Philbeck, and defendant

never spoke to Detective Philbeck at all.

B-14

We are unable to agree that there was any

evidence to support a finding that

defendant consented to Philbeck's search.

Having found no exigent circumstances

or consent which would justify a

warrantless search, we hold that the trial

court erred in denying defendant's motion

to suppress. We therefore reverse

defendant's conviction and remand the cause

for a new trial.

Reversed and remanded.

Judge PHILLIPS concurs.

Judge BRASWELL dissents.

NO. 8329SC895

NORTH CAROLINA COURT OF APPEALS

Filed: 17 April 1984

STATE OF NORTH CAROLINA

Vv. Rutherford County

HAZEL MAE JOLLEY No. 82CRS7932

B-15

BRASWELL, Judge, dissenting:

I respectfully dissent and would vote

no error. The majority opinion defines the

scope of the defendant's consent too

narrowly and it unreasonably restricts the

ability of law enforcement officers to

investigate probable crimes when called to

the scene. Eight shots were fired from the

rifle. Seven wounds of entry were counted

in the body of the husband.

The defendant testified that after the

rifle was fired:

The next thing I remember is that he

was lying on the floor hurt. I threw

the gun behind me and went to him. I

don't remember the gun aoing off. He

was laying face down on the floor and

said "Get help." I went to the

telephone and dialed the operator to

get help.

In response to a general call for help, the

EMS personnel, Deputy Summers and Detective

Philbeck were notified and sent to the

B- 16

Jolley home. By making this phone call, the

defendant gave her consent for entry into

the home to those who usually respond to

such calls for help. The record shows that

Deputy Summers arrived at 3:00 p.m. and

found the EMS personnel performing CPR on

Mr. Jolley. Detective Philbeck arrived at

3:05 p.m. The defendant in her brief does

not object to Deputy Summers’ entry into her

home, further indicating that her consent

was not limited only to emergency medical

technicians. Both officers saw the rifle in

question in plain view. Detective Philbeck

actually seized the rifle, along with eight

.22 caliber shell casings from various spots

about the den. I believe that the

Constitution does not require such a

technical tightrope walking of tye rules of

search and seizure. The constitutionality

of a seizure should not depend on which

B-17

officer arrived and entered the house first.

The law enforcement officers' legal

authority to be in the house should not be

lost, like losing one's place in line,

because the first officer to arrive had left

the house to escort the defendnat outside

and because the officer who arrived five

minutes later [but pursuant to the original

call for help] failed to beat the body out

of the house to justify exigent

circumstances.

The majority opinion states that "[iJn

the case at bar the only consent given was

consent, in the form of a phone cali, to

come into the house to aid the victim We

do not believe that this invitation can

properly be used to show consent to a search

of the premises by an officer [Detective

Philbeck] who was not involved in aiding the

victim." The defendant did not limit her

B-18

consent in such a fashion and the officers

called to her home were under no duty to ask

how long consent would last. Detective

Philbeck, like Deputy Summers, entered the

premises to conduct a general investigation

into a possible homicide. This entry was

made possible without a warrant by the

defendant's consent. Also, contrary to the

majority opinion, Philbeck searched only the

kitchen-den area which made up one large

Open room in the Jolley home. He did not

search the entire premises. The defendant's

consent and the limited search are in

themselves sufficient to distinguish this

case from Mincey vs. Arizona, supra.

I would hold that the trial court's

findings of fact are supported by competent

evidence and that the defendant's motion to

Suppress was properly denied.

B-19

In the alternative, applying the law of

State vs. Johnson, N.C. 9 , SEB.

2d (filed 3 April 1984), I would vote

to remand for a new voir dire hearing on

both the subject of consent and exigent

circumstances. As in Johnson, it could be

said here that there is a lack of sufficient

findings of fact and conclusions of law in

this case, as well as the lack of evidence

in the transcript, for our review of the

legality of the entry of law enforcement

officers into the dwelling house pursuant to

a general call for help. It could be that

on this record that both the majority and

myself are engaging in speculation.

I dissent.

APPENDIX C

ORDER OF THE TRIAL COURT

ON MOTION TO SUPPRESS

THE COURT: This matter was heard on

motion to suppress evidence seized at the

home of the Defendant, Hazel Mae Jolley,

and to suppress of statements she made to

investigating officers.

From the evidence presented, the Court

finds the following facts:

That on December 28, 1982, at 3:00 P.M.,

Deputy Michael Summers of the Rutherford

County Sheriff's Department went to the

home of John Preston Jolley and Hazel Mae

Jolley to investigate a possible shooting;

that he found John Jolley in the den on the

floor and EMT personnel were working on

him.

That he saw a .22 rifle in a chair in

the den area.

That the Defendant Hazel Mae Jolley, was

in the kitchen area in a squatting

position.

That Summers asked her to sit in the

patrol car, that he thought getting her out

of the house would help her emotional

State, that he thereafter helped rope the

area off to secure the scene, that he spoke

with the Defendant in his patrol and

advised her of her rights, on a form used

by the Rutherford County Sheriff's

Department.

That he told Ms. Jolley that she had the

right to remain silent, not make any

Statement, that anything she said could and

would be used against her in court;

That she had the right to talk to a

lawyer for advise before being asked any

questions, and have him or anyone else

present with her during questioning, that

if she could not afford a lawyer one would

be appointed for her by the Court before

questioning, if she wished; that if she

C=-2

decided to answer questions without a

lawyer she could stop answering at any

time, and that she could stop answering

questions at any time until she talked to a

lawver.

Ms. Jolley indicated that she did not

want her lawyer and that she was willing to

talk with the officer. That she was

advised of her rights at about 3:21 P.M. on

December 28, 1982. That thereafter she

asked Deputy Summers about Jolley's

condition, and said that the gun just kept

going off. That Summers then asked Ms.

Jolley to go with him to the county jail

for further questioning; that Ms. Jolley

went with him; that Summers did not know

whether this was a homicide or accidental

killing.

That Detective David Philbeck had

arrived at the Jolley residence about five

C-3

minutes after 3:00, and Summers turned

control of the premises over to him.

That Philbeck went inside the residence

where he made photographs, seized the

rifle, spent cartridges, a lead fragment,

made a diagram, and visually observed the

premises.

That Ms. Jolley was taken to the

Rutherford County Jail, that she was again

advised of her rights by Deputy Sheriff C.

W. Simmons, that Mr. Simmons told Ms.

Jolley at 4:05 P.M. on December 28th that

she had the right to remain silent and not

make any statement, that anything she said

could and would be used against her in

court, that she had the right to talk to a

lawyer for advice before being asked any

questions and have him or anyone else with

her during questioning; that if she could

not afford a lawyer one would be appointed

for her before questioning, that if she

C-4

decided to answer questions without a

lawyer she had the right to stop at any

time, and that she had the right to stop

answering questions at any time until she

spoke to a lawyer.

That she again indicated that she did

not want a lawyer and that she was willing

to talk with the officers, and that she

thereafter made a statement.

That after making the statement to

Deputy Simmons, the Defendant was charged

with the murder of her husband.

From the foregoing findings of fact the

Court concludes:

1. That a search warrant was not

required for Detective Philbeck to enter

the Jolley home and conduct an

investigation of the shooting of John

Preston Jolley; and that the evidence

seized is competent and should be admitted

into evidence.

C-5

2. That the Defendant was fully advised

of her rights, both at her residence and at

the jail prior to any quetioning; she

talked with the officers freely, knowingly,

and intelligently, voluntarily; that she

waived each of her rights, and that the

Statement was made in full understanding of

her Constitutional rights to remain silent

and the right to counsel.

3. That the Defendant was not under

arrest until she made a statement at the

Rutherford County Jail, even though Officer

Simmons would have had probable cause to

arrest the Defendant while she was still at

her residence.

It is therefore ordered that the

Defendant's motion to suppress is denied

and his objection to the evidence is

overruled.