Opinion
No. COA12–1255.
2013-06-4
STATE of North Carolina, v. Orlando ROJAS, Jr.
Attorney General Roy Cooper, by Associate Attorney General Erica Garner, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant appellant.
Appeal by defendant from order entered 6 March 2012 by Judge Richard D. Boner in Cabarrus County Superior Court. Heard in the Court of Appeals 26 February 2013. Attorney General Roy Cooper, by Associate Attorney General Erica Garner, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant appellant.
McCULLOUGH, Judge.
Orlando Rojas, Jr., (“defendant”) appeals from his convictions on two counts of trafficking in marijuana, one count of manufacturing marijuana, one count of maintaining a dwelling for keeping and selling marijuana, and one count of possession of drug paraphernalia. For the following reasons, we affirm.
I. Background
On 22 August 2011, defendant was indicted by a Cabarrus County Grand Jury on two counts of trafficking in marijuana (one count for possessing 50 pounds or more but less than 2000 pounds of marijuana and one count for manufacturing 50 pounds or more but less than 2000 pounds of marijuana), one count of manufacturing marijuana, one count of maintaining a dwelling for keeping and selling marijuana, and one count of possession of drug paraphernalia. Prior to trial, on 27 February 2012, defendant filed a motion to suppress “any and all evidence, of any kind, character, and resulting fruit, wherever situated, seized from the [d]efendant as the product of an invalid and illegal search and seizure of the [d]efendant and his premises.” The motion came on for hearing on 1 March 2012 during the 27 February 2012 Criminal Session of Cabarrus County Superior Court, the Honorable Richard D. Boner presiding.
Testimony at the suppression hearing tended to show the following: On 2 August 2011, Sergeant Joe Yurco of the Kannapolis Police Department received a tip from a private citizen that marijuana was being grown inside a residence at 814 South Juniper Street in Kannapolis, North Carolina (the “residence”). In addition to marijuana growing in the house, the citizen described “the grow lights, fans, irrigation systems, and everything else associated with the growing of marijuana.” Sergeant Yurco then conveyed this information to Officer Paige and Officer Roth, who spoke with the citizen in person. After confirming the particular residence, Officer Paige and Officer Roth traveled to the residence to follow up on the tip.
Officer Paige and Officer Roth arrived at the residence around 4:00 p.m. on 2 August 2011. As the officers approached the residence, they detected a strong odor of marijuana. Then, as Officer Roth was knocking on the door, the officers noticed a vent in the window next to the door. The officers believed this vent was being used to vent the odor of marijuana from the house.
After a few minutes of knocking, defendant answered the door. The officers identified themselves as the police and asked defendant whether there was anyone else in the house and whether they could enter. Defendant responded that he had friends over and that they could not enter. Defendant then shut the door.
The officers then contacted Sergeant Yurco. Sergeant Yurco arrived shortly thereafter and approached the residence with the officers. Sergeant Yurco also detected the strong odor of marijuana and noticed the vent in the window next to the door. The officers then began to knock on the door in order to speak with defendant again. Defendant answered, opening the inside door. During the brief time defendant was at the door, Officer Roth indicated that they knew there was marijuana in the residence and that defendant needed to talk to them. Defendant, however, shut the door. Both Sergeant Yurco and Officer Roth recalled defendant telling them to get a warrant at some point during the interaction.
Officer Roth testified that after defendant shut the door, he heard what he described as running around and things knocking down, like a stampede or furniture being moved. Sergeant Yurco described the sounds as someone running around and things being moved around inside the residence. Based on the noises, the officers formed the opinion that evidence was being destroyed. As a result, Sergeant Yurco decided they needed to enter the residence.
Sergeant Yurco radioed for a ram. When it arrived, the officers breached the door, entered the residence, and conducted a quick sweep of the residence. Defendant and a second subject were apprehended on the second floor. The officers then left the residence and obtained a search warrant. During a subsequent search of the residence pursuant to the warrant obtained, the Kannapolis police recovered 142 marijuana plants and “all of the equipment used in the growing, the lights, fans, the irrigation systems, pumps, transformers.” The police also recovered two computers with error messages and a broken camera that had been submerged in a 55–gallon drum of water.
Following the hearing, the trial court filed an order denying defendant's motion to suppress on 6 March 2012. In the order, the trial court made the following conclusions of law:
1. On August 2, 2011, the Kannapolis police had an objectively reasonable belief that evidence of a marijuana growing operation was being destroyed and would be destroyed before a search warrant for the residence could be obtained.
2. The police officers were confronted with exigent circumstances requiring an entry into the residence to maintain the status quo until a search warrant could be obtained.
3. The police did not create the exigency by engaging in or threatening to engage in conduct that violates the Fourth Amendment of the United States Constitution.
4. The information received from an unidentified informant was corroborated by the strong odor of marijuana emanating from the residence at 814 South Juniper Street. Under the totality of the circumstances, the Kannapolis police had probable cause to obtain the issuance of a search warrant for the residence.
5. The initial entry of the police into the residence at 814 South Juniper Street and the subsequent search of the residence pursuant to the search warrant did not violate the defendant's rights under the Fourth and Fourteenth Amendments to the Constitution of the United States, the Constitution of the State of North Carolina or the laws of North Carolina.
As a result of the trial court's denial of defendant's motion to dismiss, on 13 June 2012, defendant entered a guilty plea as to all counts pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In accordance with the plea arrangement, the offenses were consolidated for judgment and defendant was sentenced to a term of 35 months to 42 months. In addition, defendant was ordered to pay $25,600 in fines and miscellaneous expenses. Following sentencing, defendant orally preserved his right to appeal the denial of his motion to suppress and then gave oral notice of appeal to that effect.
II. Analysis
As a preliminary matter, defendant has filed a petition for writ of certiorari (“PWC”) with this Court that has been referred to this panel. In defendant's PWC, defendant concedes that, although he took the steps necessary to preserve the denial of his motion to suppress for appeal, he failed to timely appeal the judgment of conviction. N.C. Gen.Stat. § 15A–979(b) provides that “[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.” N.C. Gen.Stat. § 15A–979(b) (2011). Thus, as this Court held in State v. Miller, where “[d]efendant has failed to appeal from the judgment of conviction[,] ... our Court does not have jurisdiction to consider [d]efendant's appeal.” 205 N.C.App. 724, 725, 696 S.E.2d 542, 542 (2010).
Nonetheless, this Court may grant defendant's PWC and reach the merits. SeeN.C.R.App. P. 21(a)(1) (2013) (“The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action....”). In this case, where it is evident from the record that defendant intended to appeal the trial court's denial of his motion to suppress and defendant entered an Alford plea based on his right to appeal, we exercise our discretion and reach the merits.
In entering his plea, defendant's counsel stated, “Judge, pursuant to State v. Alford, and with the understanding and agreement that the motion to suppress issue is preserved for appeal, Mr. Rojas does tender a plea of guilty.”
Exigent Circumstances
Besides the preliminary matter, the sole issue on appeal is whether the trial court erred by denying defendant's motion “to suppress any and all evidence [ ]” seized following the officer's warrantless entry into the residence. Specifically, defendant contends that the trial court erred in concluding the officer's warrantless entry into the residence was lawful based on exigent circumstances. We hold the trial court did not err.
Our review of a trial court's denial of a motion to suppress is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court's conclusions of law ... are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
In this case, defendant does not challenge the trial court's findings of fact. Consequently, the findings of fact are presumed to be supported by competent evidence and are binding on this Court on appeal. See State v. Phillips, 151 N.C.App. 185, 190–91, 565 S.E.2d 697, 701 (2002). Instead, defendant challenges the trial court's conclusions of law. Specifically, defendant contends there was no exigency to justify the warrantless entry into his residence because the officers did not have an objectively reasonable basis to believe the destruction of evidence was imminent. In the alternative, defendant argues that if there was an exigency, the officers created the exigency through an implied threat to violate defendant's Fourth Amendment rights. We do not agree.
The Fourth Amendment to the U.S. Constitution, applicable to the States through the Fourteenth Amendment, and the parallel provisions in the North Carolina Constitution protect “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV; see alsoU.S. Const. amend. XIV, § 1; N.C. Const. art. 1, §§ 19 & 20. As recognized on numerous occasions, “entry of the home is the chief evil against which the wording of the Fourth Amendment is directed[.]” U.S. v. United States Dist. Ct., E.D. of Mich., S.D., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752, 764 (1972). Accordingly, “warrants are generally required to search a person's home ... unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393–94, 98 S.Ct. 2408, 57 L.Ed.2d 290, 301 (1978).
“A warrantless search is lawful if probable cause exists to search and the exigencies of the situation make search without a warrant necessary.” State v. Mills, 104 N.C.App. 724, 730, 411 S.E.2d 193, 196 (1991). The imminent destruction of evidence is well established as an exigent circumstance. Kentucky v. King, ––– U.S. ––––, ––––, 131 S.Ct. 1849, 179 L.Ed.2d 865, 875 (2011) (citing Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)); see also State v. Nowell, 144 N.C.App. 636, 643, 550 S.E.2d 807, 812 (2001) (“Exigent circumstances sufficient to make search without a warrant necessary include, but are not limited to, the probable destruction or disappearance of a controlled substance.”), aff'd per curiam, 355 N.C. 273, 559 S.E.2d 787 (2002). Yet, the belief that the destruction of evidence is imminent must be objectively reasonable. King, ––– U.S. at ––––, 179 L.Ed.2d at 874–75.
In this case, we hold the officers had probable cause and an exigency existed to justify the warrantless entry.
First, regarding probable cause, a private citizen informed police that marijuana was being grown at the residence. The citizen's tip was then corroborated when Officer Paige, Officer Roth, and later Sergeant Yurco approached the house and detected the odor of marijuana emanating from the vent in the window. As the trial court concluded, this evidence was sufficient to establish probable cause. See State v. Stover, 200 N.C.App. 506, 512–13, 685 S.E.2d 127, 132 (2009) (finding sufficient evidence to support a conclusion that probable cause existed where police received a tip from a confidential informant and detected an odor of marijuana outside the identified residence).
Defendant does not contend the officers lacked probable cause.
Second, regarding exigent circumstances based on the testimony of Sergeant Yurco and Officer Roth, the trial court found that after defendant shut the door, “[t]he officers heard noises from inside the residence. The noises were a banging or rumbling sound likened to the sound of furniture being moved or turned over[ ]” or “a stampede.” As a result, “Sergeant Yurco and Officer Roth formed the opinion that evidence of the growing operation was being destroyed.” Based on these unchallenged findings of fact, the trial court concluded that the officers “had an objectively reasonable belief that evidence of a marijuana growing operation was being destroyed” and “were confronted with exigent circumstances requiring entry into the residence to maintain the status quo until a search warrant could be obtained.”
Defendant now contends the trial court's conclusions were in error because the officers could not have had an objectively reasonable belief that the destruction of evidence was imminent based on the complex nature of the growing operation and the amount of marijuana in the residence. We do not agree.
Although the police were aware of the complex nature of the growing operation based on the citizen's description of “the grow lights, fans, irrigation systems, and everything else associated with the growing of marijuana[,]” the officers were not aware of the magnitude of the growing operation. The officer's testimony at the suppression hearing provided that they did not know how much marijuana they were dealing with, there were other people inside the residence besides defendant, and it would have taken roughly three hours to procure a search warrant. Furthermore, the officers testified that marijuana is often times disposed of by flushing it down the toilet or putting it in the garbage disposal. Based on the totality of the circumstances in this case, see Nowell, 144 N.C.App. at 643, 550 S.E.2d at 812 (“A determination of whether exigent circumstances are present must be based on the ‘totality of the circumstances.’ ”), we hold the noises coming from inside the residence were sufficient to allow the officers to form “an objectively reasonable belief that evidence of the marijuana growing operation was being destroyed and would be destroyed before a search warrant for the residence could be obtained.”
In the alternative, defendant argues that even if there was an exigency, the exigent circumstances exception to the warrant requirement would not apply in this case because the officers created the exigency. In addressing this argument, we are guided by the Supreme Court's decision in King, –––U.S. ––––, 131 S.Ct. 1849, 179 L.Ed.2d 865. In King, the Court recognized that under the “police-created exigency” doctrine, “police may not rely on the need to prevent destruction of evidence when that exigency was ‘created’ or ‘manufactured’ by the conduct of the police.” Id. at ––––, 179 L.Ed.2d at 875. Yet, in applying the doctrine, “courts require something more than mere proof that fear of detection by the police caused the destruction of evidence [ ] ... because ... in some sense the police always create the exigent circumstances.” Id. at ––––, 179 L.Ed.2d at 875–76 (internal quotation marks and citation omitted). After reviewing the different tests applied by various courts to determine when an exigency was “created” or “manufactured” by the police, the Court held that police do not “create” or “manufacture” an exigency “when the conduct of the police preceding the exigency is reasonable [within the meaning of the Fourth Amendment].” Id. at ––––, 179 L.Ed.2d at 876. Thus, “the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.” Id. at ––––, 179 L.Ed.2d at 880–81.
Upon review of the record in this case, we find no actual or threatened violation of defendant's Fourth Amendment rights. Here, the officers received a tip from a private citizen and traveled to the residence to follow up on the tip. Upon arrival, Officer Paige and Officer Roth performed a “knock and talk” in order to speak with the occupants. After a few minutes, defendant opened the inside door and had a brief conversation with the officers before denying the officers entry and shutting the door. Soon thereafter, Sergeant Yurco arrived and the officers approached the residence a second time to perform another “knock and talk.” Defendant again answered the inside door, at which point Officer Roth indicated “we're the police; know you got marijuana in there; need to open the door and talk to us.” Defendant then shut the door again.
Defendant now contends the officer's second attempt at a “knock and talk” and statement that he “need[ed] to open the door and talk to [them]” amounted to an implied threat to violate defendant's Fourth Amendment rights and created the exigency. We do not agree. It is well established that police may approach a private residence to conduct a “knock and talk,” as “they do no more than any private citizen might do.” King, ––– U.S. at ––––, 179 L.Ed.2d at 881;see also State v. Prevette, 43 N.C.App. 450, 455, 259 S.E.2d 595, 599–600 (1979) (“Entrance onto private property for the purpose of a general inquiry or interview is proper. Furthermore, officers are entitled to go to a door to inquire about a matter[.]” (citations omitted)). Defendant cites no authority, and we have found no authority, that limits the officers to a single attempt to gather information pursuant to a “knock and talk.” Instead, defendant cites U.S. v. Ramirez, 676 F.3d 755 (8th Cir.2012), for the position that “the officers must bear the consequences of the method of investigation they've chosen.” Id. at 762. Although the Ramirez quote appears helpful to defendant's case in isolation, in context, the quote simply refers to the fact that a “knock and talk” inquiry during which an occupant of a residence shuts the door on police without yielding further incriminating information fails to establish exigent circumstances to justify a warrantless entry. Id. In this case, however, the exigent circumstances did not arise as a result of defendant's closing the door on the officers, but rather as a result of the noises heard by the officers after defendant closed the door.
Furthermore, Officer Roth's statements to defendant, without more, do not amount to an implied threat to violate the Fourth Amendment. As the trial court found, “[d]uring the two conversations between the police and the defendant at the entrance to the residence, the storm door remained closed. The police made no attempt to open the storm door and made no threats or attempts to forcibly enter the residence.” We hold this finding supports the trial court's conclusion that “[t]he police did not create the exigency by engaging in or threatening to engage in conduct that violates the Fourth Amendment of the United States Constitution.”
“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.” King, ––– U.S. at ––––, 179 L.Ed.2d at 881.
III. Conclusion
For the reasons discussed above, we hold the warrantless entry into defendant's residence was reasonable based on exigent circumstances and affirm the denial of the motion to suppress.
Affirmed. Judges HUNTER (ROBERT C.) and DAVIS concur.
Report per Rule 30(e).