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NO. COA12-190 NORTH CAROLINA COURT OF APPEALS Filed: 16 October 2012 STATE OF NORTH CAROLINA v. CARL STEVEN PASOUR Gaston County No. 10 CRS 061364

Search and Seizure -- curtilage of house expectation of privacy -- marijuana plants

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reasonable

The trial court erred by denying defendant's motion to suppress marijuana plants seized from his backyard in a prosecution for possession of marijuana and for maintaining a dwelling for the possession of controlled substances. The determinative issue was whether the homeowner had a reasonable expectation of privacy in the area of curtilage the officers entered when they first viewed the contraband material. There was no indication that the plants were visible from the front of the house or from the road; all visitor traffic appeared to be kept to the front door and traffic to the rear was discouraged by a posted sign; an officer who heard a noise was not able to identify when in time he heard it, what the noise sounded like, where it came from, or even if it sounded like a person moving around; and the trial court found only that the officers went to the back of the house as "standard procedure" "to observe anyone leaving the house" and for officer safety.

NO. COA12-190 NORTH CAROLINA COURT OF APPEALS Filed: 16 October 2012 STATE OF NORTH CAROLINA v. CARL STEVEN PASOUR Gaston County No. 10 CRS 061364

Appeal by Defendant from judgment entered 16 November 2011 by Judge F. Donald Bridges in Gaston County Superior Court.

Heard in the Court of Appeals 23 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State. J. Edward Yeager, Jr., for Defendant. BEASLEY, Judge. Carl Steven Pasour (Defendant) appeals from the trial

courts denial of his motion to suppress evidence and dismiss the charges against him. On 15 August 2010, For the following reasons, we reverse. the Gaston County Police Department

received a call that a subject living at 248 Loray Farm Road had marijuana residence. plants growing with his tomato plants at the

Three officers went to that address and knocked on

the residences front and side doors but received no response. Two of the officers proceeded to the back of the residence while

-2one stayed at the front door to see if anyone would come to the door. In the backyard, the officers discovered various plants, The plants were seized and wrapped for transportation to police

including marijuana plants. in an emergency blanket

headquarters for processing. day for possession of more

Defendant was arrested that same than one and one-half ounces of

marijuana.

On 3 January 2011, Defendant was indicted for that

offense and the additional offense of maintaining a dwelling for keeping and/or selling a controlled substance. On 14 July 2011, Defendant filed a motion to suppress all evidence dismiss seized all from his home and him. by the property, On 21 and further to

charges motion

against denied

September court.

2011, On 15

Defendants

was

trial

November 2011, Defendant thereafter pled guilty pursuant to the Alford decision to both charges. Defendant was sentenced to six Defendant was Defendant

to eight months imprisonment which was suspended.

placed on supervised probation for thirty months. gave notice of appeal in open court.

Defendants sole argument on appeal is that the trial court erred in denying his motion to suppress the evidence seized in the warrantless search of his property. We agree.

-3"The Fourth Amendment to the United States Constitution

protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." 266, 269 State v. Rhodes, 151 N.C. App. 208, 213, 565 S.E.2d (2002) conducted (internal outside quotation the judicial marks omitted). without

"[S]earches

process,

prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Id. (quoting Katz

v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585 (1967)). One such exception is the plain view doctrine, under

which a seizure is lawful "when the officer was in a place where he had a right to be when the evidence was discovered and when it is immediately apparent to the police that the items observed constitute evidence of a crime, are contraband, or are subject to seizure based upon probable cause." State v. Mickey, 347

N.C. 508, 516, 495 S.E.2d 669, 674 (1998) (citations omitted). Defendant argues that the officers were not in a place that they had the right to be when they went to his backyard. This

Court has held that "[e]ntrance onto private property for the purpose of a general inquiry or interview is proper[,]" and as such "officers are entitled to go to a door to inquire about a

-4matter; they are not trespassers under these circumstances."

State v. Prevette, 43 N.C. App. 450, 455, 259 S.E.2d 595, 600-01 (1979) (citations omitted). Defendant acknowledges this well-

settled law, but argues that there was no justification for the officers to go into his backyard after receiving no answer to their repeated knocks at his front and side doors. We agree.

We first note that Defendant fails to challenge any of the trial courts findings of fact. Where an appellant fails to assign error to the trial courts findings of fact, the findings are presumed to be correct. Our review, therefore, is limited to the question of whether the trial courts findings of fact, which are presumed to be supported by competent evidence, support its conclusions of law and judgment. Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591-92, 525 S.E.2d 481, 484 (2000) (internal quotations and citations omitted). that when Here, the trial court concluded as a matter of law one of the they officers, were in Officer plain Bolick, and noticed as such the the or This factual

marijuana seizure

plants, of the

view was

marijuana

plants

"not

unlawful

unconstitutional or prohibited by North Carolina law." conclusion findings. is not supported by the trial courts

To support its conclusion, the trial court found that

-5Officer Bolick noticed "what was immediately apparent to him" as marijuana plants behind the residence, when he "had not yet walked around the back left corner of the residence." However,

in order for the plain view exception to apply, "the officer [must] be lawfully located in a place from which the object can be plainly seen," and thus may "not violate the Fourth Amendment in arriving at the place from which the evidence could be

plainly viewed."

Horton v. California, 496 U.S. 128, 136-37, This finding does not support an

110 L. Ed. 2d 112 (1990).

assertion that Officer Bolick was in a place he was permitted to be when he saw the plants, regardless of whether it was the back corner, the back yard or the side yard. Although this issue has not been directly addressed by this Court or our state Supreme Court, it has been considered by the federal appeals court in this jurisdiction and those cases are instructive here. In Alvarez v. Montgomery County, 147 F.3d

354, 356 (4th Cir. 1998), the Fourth Circuit held that "[t]he Fourth Amendment does not prohibit police, attempting to speak with a homeowner, from entering the backyard when circumstances indicate they might find him there[.]" In reaching this

holding, the Fourth Circuit noted that other circuits have found that an officers warrantless entry into a backyard is not

-6necessarily a violation of the Fourth Amendment. 358. See id. at

However, the Fourth Circuit later clarified that where

officers have no reason to believe that entering a homeowners backyard will produce a different result than knocking on the homes front door, the Fourth Amendment is violated. Porter, 316 Fed. Appx. 303, 314 (4th Cir. 2009). In Pena, the officers approached Penas trailer to "knock and talk", and when Pena did not answer at the front door, they went further onto Penas property to knock at a back door. The Fourth Circuit held that the officers had no reason Id. to Pena v.

expect that occupant especially

a knock at the there that was the no

back door would be heard by an response had at not the front door, anyone

when

given

officers

witnessed

enter the trailer, there were no lights on inside to indicate anyone was home, there was no sign directing people to the rear of the trailer, nor where there any noises coming from the rear of the trailer to indicate the presence of someone back there. Id. Based on the foregoing, the Fourth Circuit concluded that officers Id. conduct in this case violated the Fourth

"[t]he

Amendment."

In carefully examining this precedent, our own precedent, and case law from around the country, we find that the

-7determinative issue is whether or not the homeowner had a

reasonable expectation of privacy in the area of curtilage the officers entered when they first viewed the contraband material. See, e.g., State v. Rhodes, 151 N.C. App. 208, 214, 565 S.E.2d 266, 270 (2002) (finding the determinative issue to be whether the defendant manifested a reasonable expectation of privacy in his garbage); United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993) (finding a backyard is not protected where there is no reasonable expectation of privacy because the back of the house is used as the principal entrance of the dwelling); Hobson v. United States, 226 F.2d 890 (8th Cir. 1955) (finding police

violated the Fourth Amendment rights of a homeowner when they went to her home without an arrest warrant for a narcotics

violation and one officer positioned himself in the backyard while the others went to the front door). "In North Carolina,

curtilage of the home will ordinarily be construed to include at least the yard around the dwelling house as well as the area occupied by barns, cribs, and other outbuildings." Rhodes, 151

N.C. App. at 214, 565 S.E.2d at 270 (2002) (quoting State v. Frizelle, 243 N.C. 49, 51, 89 S.E.2d 725, 726 (1955)). Further,

while not dispositive, a homeowners intent to keep others out and thus evidence of his or her expectation of privacy in an

-8area may be demonstrated by the presence of signs. "no trespassing"

See, e.g., Edens v. Kennedy, 112 Fed. Appx. 870 (4th

Cir. 2004) (noting that the presence of "no trespass" signs may be one factor in the consideration of whether a homeowner has a reasonable expectation of privacy or not in a particular area). Here, the officers were within the curtilage of the home when they viewed the plants, regardless of whether they were in the back or side yards. S.E.2d at 270 (2002). See Rhodes, 151 N.C. App. at 214, 565 There is no indication from the record

that the plants were visible from the front or from the road. The trial court found that there was a "no trespassing" sign that was "plainly visible" on the side of the residence where the officers walked. Even though the officers claim they did

not see the sign, such a sign is evidence of the homeowners intent that the side and back of the home were not open to the public. Unlike in Garcia, there is no evidence here to suggest

that there was a path of any kind or anything else to suggest a visitors use of the rear door; instead, all visitor traffic appeared to be kept to the front door and traffic to the rear was discouraged as a result of the posted sign. F.2d at 1279

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