# Petition for Writ of Certiorari — Jolley v. North Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1051

## Text

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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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1930%3A1. Public record. Not legal advice.