Memorandum of Law in Support of Defendant's Motion to Suppress and Incorporated Motion to Dismiss


NORTH CAROLINA                                                            IN THE GENERAL COURT OF JUSTICE

                                                                                     DISTRICT COURT DIVISION

__________ COUNTY                                              FILE NO.

STATE OF NORTH CAROLINA,               )

                                                                        )           MEMORANDUM OF LAW IN SUPPORT

                        v.                                             )                   OF DEFENDANT’S MOTION TO

                                                                        )                SUPPRESS AND INCORPORATED

,                                               )                         MOTION TO DISMISS

                        Defendant.                              )

            NOW COMES the Defendant, by and through his counsel of record, __________ and provides this Honorable Court with a Memorandum of Law in support of his Motion to Suppress and Incorporated Motion to Dismiss made in open court and provided to the Court pursuant to N.C. Gen. Statutes §§ 15A-975, 15A-977, 15A-954, and the Fourth and Fifth Amendments of the United States Constitution seeking suppression of all evidence collected as a result of the search of Defendant’s apartment and dwelling/room therein and any and all statements made by the Defendant during the course of the entry and subsequent search.  In support of said motion, the Defendant respectfully submits the following argument and applicable law.

I.          The State bears the burden of proof to show that the       evidence seized in this matter is admissible in that        Defendant and his co-defendants have set out that the           rights discussed herein are theirs to assert, that the same             were violated as set out in the accompanying Motion to    Suppress and Incorporated Motion to Dismiss, and that              the evidence in this matter is inadmissible as a matter of   law.

            As a general rule, “in a suppression hearing, the State has the burden to demonstrate the admissibility of the challenged evidence.”  State v. Tarleton, 146 N.C. App. 417, 420, 553 S.E.2d 50, 53 (2001) citing State v. Harvey 78 N.C. App. 235, 237, 336 S.E.2d 857, 859 (1985)).  In the instant case the State cannot meet such a burden as set out below.  The Defendant and his co-Defendants were co-occupants of the common area of __________________________________________ and collectively have a reasonable expectation of privacy in general and certainly from governmental intrusion and police action therein.  

            Further, that the Defendant has an individual and reasonable expectation of privacy over and beyond that which is asserted in the common area in his separately-labeled, outwardly-locking, individually-leased dwelling room therein known as ____________.  That Defendant asserts those rights and challenges the entries and searches of both by all police personnel or those acting at their behest without strict compliance with U.S. and North Carolina Constitutional safeguards against unreasonable searches and seizures.  That Defendant has standing to do so under N.C.G.S. 15A-972 (2009).

II.        The initial entry into Apartment 360 by Sgt.          Hoffman and             Officer Crosby was without consent           or without a warrant and is therefore presumed to          be illegal and in violation of Defendant’s rights             under the Fourth and Fifteenth Amendments to the United      States Constitution and under Article I, Section 20 of the           North Carolina Constitution. 

            The facts as presented by Officer __________, of the __________ Police Department, indicate an illegal entry into the common area of the dwelling described by them as ___________________________________________________________.    Upon information and belief, Officer ______________ were working off-duty at _____________ on or about __________(date) when they were accompanying _________________________.   Upon further information and belief the officers detected an odor of marijuana on the third floor of the building.  They determined that odor to be around the door to ___________.   It is believed that the officers and certainly _____________ were aware that the dwelling rooms therein were rented by ___________________________.  Specifically, it is believed that the officers and the employee knew or should have known that the four lessees of the dwelling rooms therein were _____________________________. 

            That at the direction of the officers, __________ knocked on the door to the common area of _____________________.   Upon information and belief the officers originally stayed to the side of the door as __________ knocked so that they would not be visible through the peep hole of the door.  The door was opened from the inside by ____________, and as the door opened the officers changed places with _________________.  Upon information and belief the Officers immediately walked past _____________ who opened the door, crossed the threshold of the doorway, and entered the ________________________.  This entry was without consent or in the alternative without consent of one reasonably believed by the officers to have authority to give it.  Therefore without a warrant or without probable cause in addition to an exigent circumstance this entry is presumptively in violation of the Fourth Amendment.

            Throughout the analysis of the case at hand, it is critical for this Court to keep at the forefront of said analysis the fact that Officer _____________ did not inadvertently stumble onto or into ______________.  They did not seek a warrant to search the premises prior to entering.  The uniformed officer opted instead to “knock and talk” (through the government action of _____________ directed by the officers to do so).  However, the action of the officers can better be described as a “knock and enter.”  The officers knocked and entered for the sole purpose of investigating a crime therein, and did so in a show of authority in an effort to coerce consent to search the premises.  Solely as a matter of convenience the officers chose to bypass the warrant requirement and enter the common area of the dwelling.  Therefore, any and all violations of the occupants’ civil liberties discussed hereafter were flagrant violations incurred in an effort to convenience the officers.  The violations were not inadvertent, and therefore the actions of the officers must be even more critically viewed.  In other words, the officers’ entrance without a warrant was purposeful to gain consent therein, and the same was not the result of an accidental intrusion through some government caretaking function. 

            The law on government action consisting of entering a citizen’s home is well-settled and lies at the very heart of our Constitutional protections.  The North Carolina Court of Appeals has discussed this many times over, but the core principles are well laid out in State v. Barnes 158 NC App 606 (2003).  In Barnes police officers in the city of Wilson were watching a home believed to be used to sell narcotics based on information provided to them by confidential informants.  During their surveillance the officers noticed what they believed to be drug-sale-related foot traffic.  They also noticed that when police officers were noticed by the occupants of the home to be near, the occupants would retreat rapidly into the home.  On the night at issue, officers approached the house on bicycles, shined flashlights onto the front porch, and two males jumped up and ran into the front door of the home.  The officers entered the home after them where contraband was seen in plain view, Defendant Barnes was arrested, and the house was searched thereafter.   In finding that the entry was illegal and all evidence discovered as a result should be suppressed, the Court of Appeals used the following language in its analysis:

The Fourth Amendment to the U.S. Constitution provides that “the right of the people to be secure in their persons, papers, and effects against unreasonable searches and seizures, shall not be violated.”

The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment.  Similarly, the Constitution of the State of North Carolina provides that ‘general warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.’ 

State v. Grooms, 353 N.C. 50, 73, 540 S.E. 2d 713 (2000) (quoting N.C. Const. art. I, § 20) (citing State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994), cert denied, 534 U.S. 838, 151 L.Ed. 2d 54 122 S. Ct. 93 (2001).

In the instant case, the trial court held that the “mere” entry into the house by law enforcement officers was not a “search” within the meaning of the Fourth Amendment.  However, generally speaking, an intrusion into a residence is a search within the meaning of the Fourth Amendment, for “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”  United States v. United States District Court, 407 U.S. 297, 313, 32 L. Ed. 2d 752, 764, 92 S. Ct. 2125 (1972).  (emphasis added) Indeed, exclusion of the government from one’s dwelling lies at the heart of the Fourth Amendment:

A man’s home is his castle.  The storm and wind may enter, but the King cannot enter, and all the forces of the Crown cannot cross the threshold of his ruined tenement.  These words by Lord Eldon served as the basis for that portion of the Fourth Amendment in the Bill of Rights declaring that people shall be secure in their houses against unreasonable searches and seizures.  Pledger v. State, 257 Ga. App. 794, 797, 572 S.E.2d 348, 351 (2002). (emphasis added)  The United States Supreme Court recently held:

At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.  With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no… in the case of the search of a home’s interior… there is ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and this acknowledged to be reasonable.  …

In terms that apply equally to seizures of property and to seizures of the persons, the Fourth Amendment has drawn a firm line at the entrance to the house.  Absent exigent circumstances, that threshold may not reasonably be crossed with a warrant.  Id. (emphasis added)

            In the case at hand, Officer ______________ entered the common area living room of Defendant and the other lessees’ dwelling by crossing the threshold of the exterior door to gain entry without consent, without a warrant, and without exigent circumstances. 

            The United States Supreme Court also addressed that which is required for the State to show for an entry into the dwelling place of a citizen in Kirk v. Louisiana 536 U.S. 635, 122 S. Ct. 2458 (2002) quoting Payton v. New York, 445 U.S. 573, 590, 63 L.Ed. 2d 639, 100 S. Ct. 1371 (1980).   Therein the U.S. Supreme Court stated that “absent exigent circumstances the firm line at the entrance to the house… may not reasonably be crossed without a warrant.”  In Kirk police received complaints that drug sales were occurring in the home of Defendant.  The police then witnessed  what appeared to be several drug purchases.  The police stopped one of the buyers who confirmed their suspicions.  The buyer was arrested, and the police determined they had to enter the home immediately in fear of destruction of evidence.  They knocked on Defendant’s door.  When he answered, they entered, arrested him, and found on his person cocaine and money.  The officers then sought and obtained a search warrant thereafter.   The trial court denied Defendant’s motion to suppress stating that because the officers had probable cause to arrest and properly searched him incident thereto there was no violation of the Defendant’s constitutional protections.  The U.S. Supreme Court overturned this decision based, in part, on their holding in Payton stating:  “As Payton makes plain, police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.”  The case was remanded for a finding of whether exigent circumstances existed. 

            Similarly, in United States. v. Mowatt, 513 F.3d 395 (2008) the United States Court of Appeals for the Fourth Circuit analyzed facts directly on point to the case at hand.   In 2005 at approximately 9:19 p.m. officers were dispatched to investigate a report from a private security guard that loud music and the smell of marijuana were emanating from a tenth-floor apartment in a high-crime area.  Once on the tenth floor the officers identified the apartment that was the source of the loud music and marijuana odor.   They decided to knock on the apartment’s closed door.  After no response, they pounded on the door and began to hear scurrying inside the apartment, the discharging of an aerosol can, and the music being turned down.   Someone inside asked “who is it?”  The officers stated:  “It’s the police.  We need to investigate something.”  There was some back and forth with Mr. Mowatt on the inside and Mowatt refused to open the door.  The police then demanded and ordered him to open the door.  Mowatt complied and opened the door.  The officers reported that they thought Mowatt was hiding something behind his back though it was later determined he was not.  The officers forced their way into the apartment, handcuffed Mowatt and took him into the living room of the house.  Mowatt was not cooperative, and the officers then conducted a sweep of the apartment allegedly in fear for their safety.  After a struggle with Mowatt and seeing in plain view a loaded firearm, the officers called their superior to obtain a warrant to search the apartment.  Contraband was discovered therein.  Mowatt moved to suppress the evidence seized, the trial court denied his motion, and the Fourth Circuit Court of Appeals (hereinafter “4th Circuit”) overturned the trial court finding that the illegal entry and arrest of Mowatt was in violation of the protections afforded him by the Fourth Amendment of the U.S. Constitution.  In doing so the court stated: 

“It is well established that, even when officers have probable cause to believe that contraband is present in a home, a warrantless search of the home is unlawful unless exigent circumstances exist at the time of entry.  See Payton (citation omitted).  The government bears the burden of demonstrating exigent circumstances that overcome their presumptively unreasonable entry.  See Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 80 L.Ed. 2d 732 (1984); Vale v. Louisiana, 399 U.S. 30, 34, 90 S. Ct. 1969, 26 L.Ed. 2d 409 (1970).  An exigency is determined at the moment the search occurs.  See United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991).  This court has enumerated five factors that district courts should consider in determining whether an exigency existed at the time a search commenced:  (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is about to be removed or destroyed; (3) the possibility of danger to police guarding the site; (4) information indicating the possessors of the contraband are aware that police are on their trail; and (5) the ready destructibility of the contraband.”


            The government in Mowatt first argued that the officers’ requiring Mowatt to open the door was not a search.  The 4th Circuit stated this is easily resolved.  “It is well established that a search occurs for Fourth Amendment purposes when officers gain visual or physical access to a … room after an occupant opens the door not voluntarily, but in response to a demand under color of authority.”  United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997).  Under such circumstances, the fact that the “officer’s gained visual access to the interior of the dwelling without physically entering it is irrelevant to the question of whether a search was effected.  United States v. Winsor, 846 F.2d 1569, 1572 (9th Cir. 1988).

            In the present case, Officer ______________ directed _______________, to knock on the door of __________.  Upon information and belief, the officers remained out of view of the peephole until the door was opened by occupant of the common area of the apartment.  It is well settled that by doing so at the direction of the police, ______________ action equates to police action.   His action was clearly for the sole purpose of assisting the officers with investigating a crime, and cannot be deemed to be any part of his prescribed caretaking function as an employee of ___________.  Once the occupant opened the door, the officers then immediately crossed the threshold and entered the apartment.  Clearly this establishes facts over and beyond the situation in Mowatt.   While the guise employed by Officer __________ to get someone to open the door in order to gain simply visibility and/or the ability to better smell inside the apartment may in and of itself be a search under the holding in Mowatt, the immediate crossing of the threshold into the home without consent clearly constitutes one, single act rising to the obvious nature of an illegal search and entry

            The Mowatt court next analyzed whether it was reasonable for the officers to rely on what they characterized as an exigent circumstance to justify the illegal entry.  First, Mowatt lived in what was undisputed to be a high-crime area (not a college student apartment complex as the facts in the present case present).  Even still, the Court quoted a finding by the trial court stating that “although the apartment complex had a ‘history that might make an officer appropriately concerned for (his) safety under certain circumstances, there’s no indication that these officers had safety concerns about responding to a smell of marijuana or loud music call.” 

            Further, the government contended that once the officers knocked on the door there was a reasonable fear that someone inside Mowatt’s apartment might destroy the evidence of the crime of marijuana possession.  The court distinguished this case from United States v. Grissett, 925 F.2d 776 (4th Cir. 1991) wherein officers accompanied a man to his hotel room where he opened the door to reveal an odor of marijuana and visual confirmation of men inside smoking what appeared to be marijuana.  The Mowatt Court distinguished the Grissett case based on the fact that the officers were not there to investigate the crime of smoking marijuana but rather a disturbance in the lobby of the hotel after which the perpetrator of that incident led them to the hotel room to obtain his identification.  The officers in Grissett were therefore at the apartment door for other reasons and had no idea there was illegal drug activity inside the room of the disturbance perpetrator from the lobby.  Once the occupants inside were made aware of the police presence by no effort of the police to investigate what was going on in the room, they had reason to be concerned the evidence would be destroyed and entered the room legally in that the exigency was not of the officers’ own making.  In Mowatt, however, the same court held that:

 “Grissett is distinguishable from the case at bar for an obvious reason:  The officers in the present case were aware of the marijuana in the apartment before they decided to alert Mowatt of their presence.  Unlike Grissett, and as in Johnson, the officers here had the option of leaving the probable cause determination to a magistrate.  They needed only to seek a warrant before confronting the apartment’s occupants.  By not doing so, they set up the wholly foreseeable risk that the occupants, upon being notified of the officers’ presence, would seek to destroy the evidence of their crimes.  (emphasis added)

The Mowatt Court goes on to site numerous cases that stand for the principle that officers cannot create an exigency and then rely on that exigency for the purposes of entering a dwelling without consent. 

            In the above-captioned matter, Officer _________ smelled the marijuana coming from what they believed to be the common area of ___________.  There is no evidence whatsoever that prior to knocking on the door anyone inside the apartment knew of their presence or knowledge of any alleged wrongdoing therein.  Therefore, Officer ___________ could have gone to the magistrate and requested a warrant to search the common area of  ________________.”  Simply because the officers failed to go seek a warrant for no plausible reason other than their own convenience prior to alerting the occupants of “_________________,” they cannot thereafter rely on that notice to the occupants of their presence as an exigent circumstance to enter or to illegally detain the occupants therein.  As a result, the entry into _____________ without consent or a warrant is illegal.  Obviously any searches or detention of individuals therein however brief is also unreasonable, illegal and in violation of the Constitutional protections afforded to all of the occupants of _______________ including but not limited to the above-captioned Defendant. 

            The Mowatt Court next examined the government’s contention that the officers had an Independent Source for the warrant obtained after the illegal entry and detention/arrest of the occupants inside Mowatt’s apartment.  In so doing, the Court first addressed the purpose and extent of the “Exclusionary Rule.”

            “The exclusionary rule generally renders inadmissible evidence recovered during an unlawful search.  See Weeks V. United States 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652, T.D. 1964 (1914).  It also prohibits the admission of evidence that is acquired as a direct or indirect result of an illegal search unless the connection between the illegal search and the evidence has become attenuated as to dissipate the taint.”

III.       No exigent circumstances existed to justify the       warrantless entry without the consent of anyone with             apparent authority to grant it, and therefore the warrantless entry already explained to be presumptively             illegal was in fact illegal.

            The United States Supreme Court addressed a similar issue to that in the case at hand in Johnson v. United States 333 U.S. 10, 68 S.Ct. 367; 92 L.Ed.436 (1947).  In Johnson police received information from a confidential informant (“CI”) that unknown persons were smoking opium in a hotel room.  The police went to the hotel and immediately recognized the obvious odor of burning opium leading them to defendant’s room.  The officers knocked on the hotel room door, the defendant answered, she was confronted about the odor, and she denied noticing the odor.  The officers arrested defendant and thereafter searched the room. 

            The Court found that at the time of the entry, the officers potentially possessed enough information based solely on the odor to justify probable cause and the issuance of a search warrant.  Nonetheless, the Court stated thereafter:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence.  Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.  Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.  Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing.  The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.  When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.  Id at 14 (emphasis added).

The Court goes on to say that there are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, that the warrant requirement can be circumvented.  The Court denies that the facts of Johnson (almost exactly on point with the facts associated with the entry in the case sub judice) give rise to one of those rare exceptions stating, “no reason is offered for not obtaining a search warrant except the inconvenience to the officers of some slight delay necessary to prepare papers and present the evidence to a magistrate.  These are never very convincing reasons and, in these circumstances, certainly are not enough to by-pass the constitutional requirement.”  Id (emphasis added).

            The Johnson Court quotes United States v. Lefkowitz, 285 U.S. 452 at 464 in stating “the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests.  Security against unlawful searches is more likely to be attained by resort to search warrants than by reliance upon the caution and sagacity of petty officers while acting under the excitement that attends the capture of person accused of crime…Id (emphasis added).  Failure to give such deference to the magistrate process by officers willing to enter a dwelling without a warrant undermines “the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are they law.”  Id at 16 (emphasis added).

            In ruling that the illegal entry and arrest of Johnson despite the likely existence of probable cause to obtain a warrant and return to arrest Johnson, Chief Justice Jackson ended the opinion with the following quote from Gouled v. United States, 255 U.S. 303, 304, in which the U.S. Supreme Court previously said:

It would not be possible to add the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U.S. 616, in Weeks v. United States, 232 U.S. 383, and in Silverthorne Lumber Co. v. United States, 251 U.S. 385) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two (Fourth and Fifth) Amendments.  The effect of the decisions cited is:  that such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty and private property’; that they are to be regarded as of the very essence of the constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen, -- the right, to trial by jury, to the writ of habeas corpus, and to due process of the law.  It has been repeatedly divided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly over-zealous executive officers.”  Id (emphasis added).

The most Supreme Court of this nation has repeatedly left nothing to the imagination as to the application in and the protections of the Fourth and Fourteenth Amendments and the rights afforded thereby to the above-captioned Defendant, to his co-Defendants, and to each and every one of us.   The Johnson Court’s holding stands for the principle that simply because there is an odor of some illegal substance emanating in the air about someone’s dwelling, it merely creates a possibility of probable cause to seek a warrant.  It does not create an obligation to enter, seize, arrest or search without a neutral judicial determination on the question of probable cause.  Further, it therefore does not create an exigent circumstance otherwise justifying a warrantless entry or arrest.   The Court is also clear that there is a strong societal interest in not rewarding officers who fail to seek a warrant to enter the most sacred place, a person’s dwelling, when such a warrant might very well be issued.  When officers choose out of nothing more than mere convenience to themselves to circumvent seeking a warrant initially or even after an illegal entry into a home gives them good reason to do so thereafter once it is apparent their effort to effectuate the more convenient route of coerced consent fails, the same should not be rewarded for doing so.  Rather the Defendant respectfully contends that in such instances any entry and/or detention of the occupants of a dwelling rises to the level that warrants dismissal of charges issued as a result or therein.  The Court’s language on point is extremely strong for good reason, and such acts by law enforcement must be deterred in order to protect our most precious liberties and preserve the very purpose of the Fourth Amendment.

            In State v. Yananokwiak, 65 N.C. App. 513, 309 S.E.2d 560 (1983), the North Carolina Court of Appeals also adopted the theory that the alleged or suspected existence of illegal drugs does not create an exigency.  In Yananokwiak the officers conducted a warrantless search of the defendant’s home several hours after they arrested him without a warrant in his home on suspected drug violations supported by drug sales to and information from confidential informants.  The state argued that the initial entry for the arrest and subsequent search were supported by an exigent circumstance, specifically a fear that contraband therein would be destroyed.  The Court of Appeals disagreed with the State’s contention because at no point did the officers hear anything which might reasonably lead them to conclude that Defendant was about to escape or destroy evidence. 

The Court dismissed the State’s contention that there were exigent circumstances simply because the case involved drugs which are easily disposed of or destroyed.  “The state’s argument that exigency is shown simply because drugs are easily destroyed would permit the exigency exception to swallow the entire warrant requirement.  Although the state notes that drug dealers frequently own guns or other weapons and are violent, there is no showing that this particular defendant was armed or was dangerous. . . . The only time at which exigent circumstances existed in this case was at the moment the police entered defendant’s home, thereby revealing that he was about to be arrested.  This circumstance, however, was created by the police themselves and may not be presented as an argument to support their warrantless actions.”  See Vale v. Louisiana, 399 U.S. 30, 90 S.Vt. 1969, 26 L.Ed.2d 409 (1970). Id (emphasis added).

The applicable precedent therein is two fold:  1) the presence of drugs does not create an exigency, and 2) officers cannot rely on a self-created exigency to support their warrantless actions regardless.  Here the North Carolina courts have adopted the same principles set out by the Fourth Circuit Court of Appeals in Mowatt above.  Therefore applying these principles to the case sub judice, the illegal entry, protective sweep and subsequent detention of the occupants of Apartment 360 are all unreasonable and unlawful and warrant suppression of the evidence seized as a result.  Further, the Defendant on behalf of all of his co-Defendants respectfully submits that the flagrant Constitutional violations discussed herein further warrant dismissal of the charges against them.

IV.       Any evidence located inside the home prior to the             issuance of a warrant to search the premises is clearly    inadmissible.

            Upon information and belief, at some point during the illegal occupation of the dwelling by the ____________ Police Department, a detailed and thorough search was conducted of the bathroom described in Officer’s report as being between bedrooms A and B.   Officer ___________ searched that bathroom prior to the issuance of a warrant and without any other justification during the ongoing illegal entry into the apartment when one of the female detainees in custody explained that she needed to use the bathroom.  Although all of the evidence seized in the entire apartment is subject to suppression for all of the reasons set out herein, any evidence found during this search in an effort to continue the custodial nature and further effectuate the arrest of the occupants by Officer ____________ was discovered in clear violation of all of the Constitutional and legal protections discussed above and hereafter.  Specifically, the evidence of alleged drug paraphernalia must be suppressed in that the search discovering it was conducted with reckless disregard for all of the laws and principles set out herein. 


V.        The Exclusionary Rule applies to the evidence sought to be suppressed herein, and no Independent Source legally             exists to justify the admission of the same. 

            The Mowatt Court examined the government’s contention that the officers in that case had an “independent source” for the warrant obtained after the illegal entry and detention/arrest of the occupants inside Mowatt’s apartment.  In so doing, the Court first addressed the purpose and extent of the “Exclusionary Rule.”

“The exclusionary rule generally renders inadmissible evidence recovered during an unlawful search.  See Weeks V. United States 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652, T.D. 1964 (1914).  It also prohibits the admission of evidence that is acquired as a direct or indirect result of an illegal search unless the connection between the illegal search and the evidence has become attenuated as to dissipate the taint.”  Wong Sun, 371 U.S. at 491 (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)).  The exclusionary rule does have limits, however, one of which was created in recognition that “the intereste of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred.  When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.  Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 81 L.Ed. 2d 377 (1984).

Thus under the independent source doctrine, when police discover a particular fact by illegal means but later acquire knowledge of that same fact by independent, legitimate means, evidence of that fact is not excludable as fruit of the police misconduct.  See Murray v. United States, 487 U.S. 533, 537-41, 108 S. Ct. 2529, 101 L.Ed. 2d 472 (1988). 

The Court in Murray specifically applied the independent source doctrine to a case in which execution of a search warrant was preceded by an illegal search of the same premises.  Under that scenario, the Supreme Court held, the evidence recovered in the later search is not admissible unless the government establishes that “no information gained from the illegal [search] affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it.”  Id. At 540; see United States v. Dessesaura, 429 F.3d 359, 369 (1st Cir.) (similar); United States v. Herrold, 962 F.2d 1131, 1140 (3d Cir. 1992) (similar).

Here, even assuming that no information gained form the illegal search affected the magistrate’s decision to issue the warrant, the government has never maintained that the officers would have sought a warrant absent their prior illegal discovery of the revolver and the ecstasy.  Nor does any evidence even suggest that they would have sought a warrant had they known only about the marijuana.”

            As in Mowatt, the facts of the case at hand do not establish an independent source for the warrant sought by Officer __________first because there is no evidence that the warrant would have even been sought at all based solely on the odor of marijuana.  In fact, upon information and belief Officer ____________ has stated that he would have not gone to get a warrant to search ________________ except for the fact that consent to search was legally denied to him by the occupants therein.  Consent was sought after the illegal entry through the threshold of the doorway of __________ by Officer ____________ and therefore was a direct result of the original illegal entry.  It is important to realize that the request for consent was not made as the officers remained at the threshold of the door.  Rather, they entered past a female to confront the known lessees of the dwelling rooms inside the apartment.  The officers could have and should have asked her to have one of the men with authority to grant consent to meet them at the door.  Had they proceeded in such a fashion, many of the arguments would be moot.  The burden placed on the officers to act in this appropriate fashion would have been minimal at best.  In addition, it is undisputed that Officer ____________  would not have sought the warrant at all had his show of force of entering the dwelling been successful in manipulating consent to search. 

            Furthermore, the application for the search warrant presented to the magistrate by Officer ____________ included information gained solely through the original illegal entry.  In the search warrant application Officer ____________ stated: 

“While walking the hallway of the 3rd Floor, I detected the strong odor of marijuana emanating from the doorway of apartment ____ of __________________.  I knocked on the door and met the tenants to confirm my observations.  A search warrant is needed to lawfully search the apartment and it’s occupants for marijuana, paraphernalia to consume marijuana and evidence to establish use possessed said contraband in violation of NCGS 90-95.”

A copy of the search warrant application written and executed by Officer __________ is attached hereto as Exhibit A and is incorporated by reference as if fully set out herein.  Officer _____’s use of the line “I knocked on the door and met the tenants to confirm my observations.” is clearly information gained through the illegal knock and immediate entry into the home.  Interestingly enough the warrant application is devoid of any mention that the “meeting” with the tenants was not at the threshold of the doorway as the magistrate likely assumed, but rather the “meeting” took place in the living room of the apartment after the illegal entry was perpetrated by the uniformed officer. 

            The warrant itself is therefore not only the direct result solely of the tenants refusal to consent to a search of the common area of the apartment or the individual dwelling rooms therein meaning Officer ___________ would not have sought the warrant but for the refused request for consent, but the warrant application and subsequent granting of probable cause (the warrant) by the magistrate are also fruit of the poisonous tree (the illegal entry) as it contains information discovered after the illegal entry and therefore cannot be differentiated as an independent source. 

            Furthermore, unlike in State vs. McLean 120 N.C. App. 838; 463 S.E.2d 826 (1995) the affiant requesting the search warrant, Officer _____________, participated and in fact initiated the illegal entry and there was no information outside of that involving the illegal entry that was offered to present probable cause.  In McLean there was an illegal entry by a police officer into the defendant’s apartment after an exterminator and an apartment manager entered for the purpose of pest control maintenance and located several marijuana plants.  The concerned citizens contacted Lumberton police who entered the apartment to confirm the suspicions and left the apartment to contact narcotics detectives.   The warrant application ultimately included observations by all three who entered the apartment, but the narcotics detective who interviewed them testified that he would have sought the warrant based solely on what the two citizens observed even without confirmation from the police officer who previously entered illegally. 

            In finding that there was enough information to justify an independent source separate and apart from the illegal entry, the North Carolina Court of Appeals stated:

“The exclusionary rule does not apply, however, if the connection between the unlawful entry and the discovery and seizure of the evidence ‘is so attenuated as to dissipate the taint, as where police has an independent source for discovery of the evidence.”  Wallace, 11 N.C. App. At 589, 433 S.E.2d at 243.  The independent source is not sufficient to purge the taint of an earlier unlawful entry if “the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the magistrate and affected his decision to issue the warrant.”  Murray, 487 U.S. at 542, 101 L.Ed. 2d at 483-484.

Application of Murray reveals the information obtained from (the citizens) was sufficient to dissipate any taint arising from the unlawful entry.  First, Detective Biggs, the officer who applied for the search warrant, did not participate in the unlawful entry.  In addition, the information presented by Detective Biggs to the magistrate included sufficient evidence from independent, reliable sources to constitute probable cause “independent of and unrelated to the illegal entry.”  State v. Knight, 340 N.C. 531, 548, 459 S.E.2d 481, 492 (1995)(citing Segura v. United States, 468 U.S. 796, 811, 82 L.Ed.2d 599, 613, 104 S.Ct. 3380 (1984)).  See State v. Waterfield, 117 N.C. App. 295, 298, 450 S.E.2d 524, 526-527 (1994).  Therefore, we do not believe Officer Biggs’ decision to seek the warrant was prompted by the unlawful entry but rather based on information “independently distinguishable so as to purge the search warrant of the primary taint.”  Wallace, 11 N.C. App at 589, 433 S.E. 2d at 243.

Second, the totality of the information obtained from (citizens), which independently coalesced to support a finding of probable cause, was “wholly unconnected” with the unlawful entry.  See Id. at 590, 433 S.E.2d at 243. 

In the present case, the following obvious distinctions can be made from which an opposite deduction is appropriate from the applicable law discussed in Mclean:  1)  Officer _______ initiated the illegal entry and was the affiant seeking the subsequent warrant, 2) there is no independent information presented for the warrant outside of the observations by the officers, 3) information obtained during the illegal entry was included in the warrant application as set out above, and 4) as a result the information in the warrant was hardly “wholly unconnected from” or “independent of and unrelated to” the illegal entry, but it was in fact entirely connected thereto.    As a result, there is no applicable independent source that can wholly and completely purge the taint of the illegal entry into the common area of Apartment _______.

            Exactly on point is the case of State v. Wallace 111 N.C. App. 581, 433 S.E.2d 238 (1993).   In Wallace officers received an anonymous tip that the defendants were growing marijuana in their home.  Police went to the defendants’ home, knocked, and notified one of them of the tip and requested consent to search.   The occupant closed the door behind him and talked openly with the officers on the porch.  Another occupant of the home came out of the same door and met the officers on the front porch.  The officers’ request for consent to search was thereafter denied.  In so doing, one of the men said there might be some drug paraphernalia and marijuana seeds in the house so he would not consent to the search until he disposed of the contraband.  Police then heard someone inside, and the two on the porch claimed they did not know who else was inside.  Officers then stated they would get a warrant if they did not consent due to the deception about who was in the house.  Police entered the home to perform a protective sweep, detained the residents therein, exited, and returned to execute a search warrant sought on the anonymous tip, the statement that there might be marijuana and paraphernalia in the home, and contraband seen during the alleged protective sweep of the premises.  The trial court granted the defendants’ motion to suppress and the State appealed. 

            The Court of Appeals overturned the trial court’s decisions in part stating that the officers did have probable cause to enter the home based on the statement that contraband could be in the house, but in so doing stated that probable cause alone does not justify a warrantless entry into the home.  The court sited Agnello v. United States, 269 U.S. 20, 70 L.Ed. 145 (1925):

[t]he search of a private dwelling without a warrant is, in itself, unreasonable and abhorrent to our laws… Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant.  Any such searches are held unlawful notwithstanding facts unquestionably showing probable cause.”


            The Court of Appeals denied the State’s contention that exigent circumstances existed to justify the warrantless entry based on the fear that contraband in the house was going to be destroyed.  Similarly to the case at hand, the Court found that there was no evidence whatsoever that prior to the illegal entry any evidence was in the process of or going to be destroyed. 

            The Court next addressed the State’s contention that the protective sweep was necessary for officer safety.  As in the case sub judice, this contention is not supported by the facts.   The Court compared these situations to that in United States v. Akrawi, 920 F.2d 418 (6th Cir. 1990) wherein the officers conducting a protective sweep after initiating an arrest via warrant of the defendant in his home violated the defendant’s Fourth Amendment rights because the officers articulated no specific basis for believing that they were at any time in harm’s way.  Specifically, the officers in Akrawi encountered no resistance upon entering the house illegally and no difficulty arresting the defendant.  In Wallace, the Court of Appeals makes the obvious distinction that the officers were there not with an arrest warrant, but simply “to gain more information after receiving a tip about alleged criminal activity in the residence.”  The officers encountered no resistance at the home in that the defendants at all times talked to the officers in a calm manner that was at all times non-threatening.  There was no evidence presented that the officers at any time felt threatened, and as a result the protective sweep was an unreasonable inspection of the residence. 

            In this case, Officer _________ knocked on the door of an apartment known to be inhabited by  in an apartment complex only allowed to be inhabited by other college students.  This is clearly not what is typically defined as a high-crime area.  Upon information and belief, all occupants of the common area of Apartment __________ and the individual dwelling rooms therein were at all times polite and cooperative.  Aside from their assertion of their Constitutional right to deny access to the premises to the officers not in possession of a search warrant, the individuals therein were never threatening or harassing, nor did any conversation between the officers and the people therein rise to any level above “completely calm” despite the prior illegal and forceful entry by the officers. 

            In Wallace the Court of Appeals held that despite the prior information available to the officers from the CI about drug activity in the apartment at issue and the statements made by one of the defendants while the officers remained on the front porch prior to their unlawful, warrantless entry into Wallace’s dwelling, the search warrant application contained what the officers observed during the illegal protective sweep and therefore “the search warrant was not based upon information wholly unconnected with the unlawful entry so as to purge the taint.” Id at 589.  The court further stated:

“Any search pursuant to a warrant is not a genuinely independent source of information sufficient to remove the taint of an earlier unlawful entry if the warrant was either prompted by what officers saw in the initial unlawful entry, or if the information obtained during the entry was presented to the Magistrate and affected his decision to issue the warrant.  Murray, 487 U.S. 533, 101 L.Ed.2d 472.”

Officer __________’s actions go well beyond that of the officers in the Wallace case.  Particularly, the Wallace officers remained outside on the front porch and “met” the occupants there.  Officer __________ did not even seek consent to enter and/or search the premises until they had crossed the threshold and confronted the tenants in the living room.  Further, there was no independent information known to the officers whatsoever outside of their own observations on the night in question.  The connection to the information obtained illegally in this case and the use of the same in the warrant application is not only exactly in line with the facts of Wallace, it rises to a greater degree of wrongdoing by the law enforcement involved here.  The holding in Wallace by the Court of Appeals suppressing any and all evidence found within the dwelling pursuant to a subsequent search warrant sought after and based on the previous unlawful entry therein is the appropriate remedy here as well. 

VI.       The Doctrine of Inevitable Discovery cannot be applied to          cure the illegal entry or the reliance on a warrant that is     invalid on its face as a matter of law.

            “Inevitable discovery” is a variation of the “independent source” rule.  This doctrine differs from the “independent source” exception in that the question is not whether the police actually acquired certain evidence by reliance upon an untainted source, but whether evidence in fact obtained illegally would inevitably or eventually or probably have been discovered lawfully at some hypothetical point thereafter. 

            The doctrine of Inevitable Discovery is most palatable, and has been most frequently applied, when the police misconduct occurred “while an investigation was already in progress and resulted in the discovery of evidence that would have eventually been obtained through routine police investigatory procedure.  The illegalities in such cases, therefore, had the effect of simply accelerating the discovery.”  Note, 74 Colum.L.Rev. 88, 90 (1974).

            Because mechanical application of the “inevitable discovery” doctrine would seem to encourage unconstitutional shortcuts, and one purpose of the exclusionary rule is to discourage such shortcuts, it has been argued that the doctrine should be permitted only when police have not acted in “bad faith” to accelerate the discovery of the challenged evidence.  See e.g., LaFave, § 11.4(a) at 382.   As pointed out above, Officer _____________’s actions of entering unlawfully into the common area of Apartment _______ out of mere convenience to themselves equates, arguably, to “bad faith.”  Certainly, the entrance into the common area of the dwelling was not inadvertent nor was it in “good faith.” 

            While North Carolina courts have held that an actual independent and separate investigation does not necessarily need to be under way at the time of the government agents’ bad act to justify the application of the inevitable discovery doctrine for the purpose of making admissible evidence otherwise falling under the protections afforded criminal defendants who are victims of illegal and unlawful searches and seizures, the Supreme Court of North Carolina in State v. Pope 333 N.C. 106; 423 S.E.2d 740 (1992) has stated that another means justifying a hypothetical means to the otherwise illegal end must be shown.  For instance, in Pope the State argued that by common practice a car salesman would have discovered a weapon believed to be evidence of a crime that was previously seized illegally by the police hidden in the car when that salesman later sold the vehicle and thoroughly searched the same prior to completing the sale.  Further, therein the citizen-salesman testified that undoubtedly had he found such a weapon knowing that an investigation by authorities was under way to locate it, he would have immediately turned it over to the authorities.  This was deemed a proper application of the inevitable discovery doctrine in that the State could prove by a preponderance of the evidence that such a hypothetical discovery was likely to occur after the illegal seizure of the evidence.  See Id.  The Pope Court also quoted as applicable president on the application of the inevitable discovery doctrine State v. Garner, 331 N.C. 491, 417 S.E.2d 502 (1992).  In Garner, the evidence of gun ownership illegally gained through an unlawful search and seizure of a receipt for the gun would have eventually been inevitably discovered through normal police work in that the officers testified they always run Alcohol, Tobacco and Firearm (“ATF”) checks on all firearms seized during investigations.  Therefore the officers in Garner would have determined the owner of the gun to be the Defendant as the weapon was registered to him regardless of the original unlawful search that resulted in the unlawful seizure of the receipt.  See Id. 

            The above-captioned Defendant respectfully offers to this Court that the inevitable discovery doctrine is not applicable here.  There is no feasible, lawful, and likely means to gain entry into the Defendant’s dwelling separate and apart from the investigation on the night he and his co-Defendant’s were seized and thereafter charged.  Further, there is no possible hypothetical scenario provable by a preponderance of the evidence that any means whatsoever was available to the officers to gain access to the apartment, search the apartment, or discover any alleged contraband therein.  Should the State offer this theory as a means to seek admission of any evidence seized in this case otherwise falling under the protections of the exclusionary rule, the Defendant respectfully submits that this argument is misplaced given the meaning of “inevitable discovery.”

VII.     Not only was information obtained by the officers in the             illegal entry used in the warrant application by Sgt.        Hoffman, the warrant             application was devoid of     critical information known or          reasonably             known            to Sgt. Hoffman at the time the        application was             executed and taken before the         magistrate.  The         excluded information was        not only necessary to the       determination of probable             cause, but the appropriate    inclusion of the same would             have significantly impacted           the magistrate’s         decision on whether the issuance of         a warrant was appropriate.

            Should this court deem that the violations in and of themselves do not warrant suppression of the evidence seized pursuant to the search warrant based on illegally gained information, the Defendant contends that in the alternative there is necessary information absent from the warrant application that was known to Officer _______________.  The failure to include that information was in reckless disregard to the appropriate finding of whether there existed probable cause.   This is in violation to the holding in Franks v. Delaware 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667 wherein the United States Supreme Court ordered that when false statements are knowingly or recklessly made by an officer in a warrant application, they must be set to one side and if the remainder of the warrant is not sufficient to establish probable cause, the warrant must be voided and the fruits of the search excluded.   The Franks test is also applied to omissions from a search warrant application that can be shown to more likely than not have had a bearing on the determination of probable cause.  See United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986).

            Sgt. Hoffman set out in his search warrant application that he has for some time worked off-duty at ____________ Apartments.  It is presumed that in his capacity as a security officer there, being that he is paid to provide security and deter crime therein, he has had numerous occasions to enter the apartments similarly situated to Apartment ______.  He is therefore held to a higher presumption of knowledge than an officer randomly dispatched to ___________ for the first time.  Undoubtedly, Officer __________ are in the unique position to have, and likely do have, an intimate knowledge as to the structure of the apartments in the ______________. 

            Officer __________ indeed shows this extensive knowledge of the nature of the property in his report regarding the events at issue here.  Therein he states:

“The apartment searched is referred to as a 4x2.  This means that it contains four rooms and two bathrooms.  The four tenants share the living room and kitchen.  The rooms are labeled alphabetically A-D.  Rooms A and B share a bathroom as do Rooms C and D.”

Later in the report Officer _____________ again expresses his knowledge of the premises by referring to all of the rooms as “private rooms.”  Further, in the unlikely event that Officer ____________ could possibly deny such knowledge of the premises, certainly such information was further made known to him as he conducted the illegal entry and subsequent unlawful “protective sweep” of the premises during which time he walked to and stuck his head in each individually labeled dwelling room, during which it should have been apparent to him that there were outwardly locking deadbolts on each door to the independently leased dwelling rooms therein.

            The fact that each dwelling room labeled A-D located inside the premises is individually leased by a single tenant who then shares access to the common area outside those rooms commonly referred to the “kitchen and living room” is an undeniably huge fact as to whether the odor of marijuana perceived either in the hall outside of the door labeled “360”, or even inside the common area of the apartment, justifies the finding of probable cause to search each individually-leased, outwardly-locking, and individually-labeled dwelling rooms therein.  Certainly each resident of the collective “apartment” has an independent and reasonable expectation of privacy in his individual dwelling room in this unique situation. 

            For the sake of hypothetical analysis, the facts of the case sub judice can be equated to officers patrolling the stairwell of a hotel smelling marijuana emanating through the crack of the door leading from the stairwell to the third floor hall of a hotel.  Certainly such an odor does not give rise to probable cause to search each individual hotel room up and down the entirety of the third floor hall.  What evidence exists for their to be any determining factor that there is contraband only the hall?  What about in any one particular room that opens into the hall?  There is none.   Even if the officers in this fictitious scenario enter into the hallway despite the owner of the hotel denying them access thereto and without a warrant to discover a haze of smoke in the hall.  Once in the hallway the officers have confirmed that the perceived odor of marijuana is indeed coming from somewhere on the third floor after seeing  and smelling the haze of smoke in the hallway.  Thereafter they seek a warrant based on solely that information to search each individual room of the hotel’s third floor.  What has changed as to the specific facts needed to search each individual room.  There is no change, and there are no facts asserted in this scenario to justify a finding of probable cause for each, individual room.  Obviously such a warrant, if granted, would be unlawfully overbroad since there exists no ability for the officers to provide a reasonable, articulable suspicion of probable cause that the source of the odor will likely be found in any one room on the hall over another.  Therefore, it is clear that probable cause could not be presented or found by a neutral or detached magistrate in such a scenario. Instead, such a request for a warrant would equate to a “fishing expedition” at best.  Fittingly, had Officer __________ provided the information known to him or reasonably known to him regarding the structure of the apartment building there simply would not be enough evidence to establish probable cause to search anything at all, much less the individually-leased dwelling rooms or the individual bathrooms assigned to the rooms inside Apartment ___________. 

            As a result, when all necessary information that Officer __________ should have included in the warrant application is presented regardless of whether all information gained from the unlawful entry of the defendants’ premises is extracted (but even more so when both are done in accordance with the law as argued above), the warrant application on its face is defective as overbroad and fails to support a reasonable determination of probable cause.  The warrant issued upon this application should therefore be quashed, and any and all evidence seized during a search in accordance with the unlawful authority thereto must thereafter be suppressed.   Finally, this Court should bear in mind that North Carolina has never recognized a good faith exception to the warrant requirement.

VIII.    The Warrant, even if deemed valid and supported by      probable cause, does not have the necessary nexus and/or   specificity between the alleged contraband to be searched   for and the premises sought to be searched,             ordered to be search,            and ultimately searched.

            North Carolina courts have made it clear that an affidavit supporting a search warrant application “must establish a nexus between the objects sought and the place to be searched.”  State v. McCoy, 100 N.C. App. 574, 576, 397 S.E.2d 355, 357 (1990).  In State v. Taylor, 191 N.C. App. 587, 664 S.E.2d 421 (2008), for example, a confidential informant (“CI”) made a number of controlled cocaine purchases from the defendant.  Id.  Based on these transactions and the reliable information from the CI, police submitted a search-warrant application for two separate premises:  a mobile home and a wood-frame house located behind the mobile home.  The affidavit supporting the warrant application, however, merely stated that “the CI had ‘visited the described location at the direction and surveillance of police and while at the location… made a purchase of the controlled substance.’”  Id at 664 S.E.2d at 422 (emphases added).

            Based on the information contained in the affidavit, the Court “concluded that the magistrate did not have a substantial basis for a finding of probable cause.” Id. at 664 S.E.2d at 424.  The Court noted that the affidavit did not set forth any facts or circumstances establishing probable cause to believe that drugs would be found in either of the locations to be searched, as required by N.C.G.S. §15A-244(3).  Id at 664 S.E.2d at 423.  Specifically,

No facts were alleged in the affidavit that particularly set forth where on the premises the drug deals occurred.  The affidavit merely stated that the CI “had visited the described location” and made controlled purchases of cocaine “while at the location” without particularly stating which, if any, of the two dwellings he entered to make the purchases.” 


Id. at 664 S.E.2d at 423 (emphases in original).  Since the warrant application demonstrated no nexus between the objects sought and the locations to be searched, the Court held that all evidence arising form the execution of the warrant must be suppressed.  Id. at 664 S.E.2d at 424.

Furthermore, the continued detention of the individuals therein constituted an illegal seizure if not an illegal arrest which are per se unreasonable based on the illegal entry and requires dismissal of the cases against them. 

            Likewise, in the present case, there is no nexus between the items of alleged contraband sought by Officer ________ and the locations he desired to search.  Specifically, there are seven (7) distinct areas within Apartment _____ based on Officer _______’s own report:  1) the common area, 2) dwelling room A, 3) dwelling room B, 4) dwelling room C, 5) dwelling room D, 6) bathroom between dwelling rooms A and B, and 7) the bathroom between dwelling rooms C and D.  Each area has a distinct and obvious reasonable expectation of privacy associated therewith given the nature of the premises and how it is leased to the tenants.  Despite this information being known to Officer ____________, it is absent from the warrant application.  The warrant therefore fails on its face to show a nexus between the items sought to be seized and the likelihood that they would be found in any of the specific areas and separate dwelling rooms ultimately searched.

            Under Taylor, the affiant does not set forth any facts or circumstances establishing probable cause to believe that drugs would be found in the authorized locations.  Therefore, the magistrate did not have a substantial basis for finding that probable cause existed for issuance of the search warrant, and all evidence arising from the execution of the warrant must be suppressed.  The same is applicable here.  In so holding, the North Carolina Court of Appeals looks at other jurisdictions stating they are in accord with their decision:

The Seventh Circuit has held that a search of two or more apartments in the same building is the same as searching two or more separate houses and, therefore, probable cause must be established for each residence.  See United States v. Hinton, 219 F.2d 324, 325-26 (7th Cir 1955).  An exception to this requirement is recognized where the separate dwellings are under the dominion or control of the target of the investigation. Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997).  However, in the absence of allegations about the target of the investigation, when there are two dwellings described under a single address, in order for the supporting affidavit to the warrant application to be sufficient, it must allege facts sufficient to establish probable cause to search either or both dwellings.  See, e.g., State v. Marshall, 398 N.J. Super. 92, 939 A.2d 813 (N.J. Super. Ct. App. Div. 2008) .  (emphasis added)

Therefore, Officer _________’s application seeking a warrant to search “Apartment ______” is therefore insufficient on its face.  It is further insufficient given Officer ______’s unusual position of knowledge as an off-duty officer at the premises at issue giving him a significantly better posture to adequately describe the premises as set out above through his own writings, his experience at the premises, and his knowledge gained or confirmed during his illegal entry and unlawful protective sweep of the actual apartment sought to be searched.

            Applying this well-settled law to the facts at hand, the warrant in this case must be deemed insufficient on its face meaning the magistrate did not have a substantial basis for finding that probable cause existed for issuance of the search warrant, and therefore all evidence arising from the execution of the warrant must be suppressed.

IX.       Any statements made by the occupants of Apartment 360           must be suppressed as a matter of law since the same         were clearly in custody, if not under arrest, at the time       such statements were made without being provided             Miranda warnings, and in the alternative any statement   made by the above-captioned Defendant in response to             being confronted with alleged contraband was made in      response to an act or statement by officers             seeking a         response that would be obviously incriminating.   This             applies to the custodial interrogation whether or not the detention was lawful or unlawful.

            In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) the United States Supreme Court set out that the general rule applicable here is that any and all evidence seized following an illegal intrusion into a defendant’s home is tainted by the illegal entry and is therefore inadmissible.  Wong Sun was discussed and applied by the court in State v. Yananokwiak, 65 N.C. App. 513, 309 S.E.2d 560 (1983) which is discussed at length above.  The North Carolina Court of Appeals stated:

“To be admissible, Wong Sun states that the evidence must be shown to be the product of “an intervening, independent act of free will….”  Id.   In Wong Sun, numerous policemen broke down the door to defendant’s home, chased him through the house awakening his family, and immediately arrested and handcuffed defendant.  Thereafter, defendant made inculpatory statements, which the state sought to introduce, despite the illegality of the entry.   The United States Supreme Court determined that “under such circumstances it is unreasonable to infer that defendant’s response was sufficiently an act of free will to purge the primary taint of the unlawful invasion.”  Id.”   Id at 517.

In the case before us, the illegal entry into Defendant’s apartment lasted for more than two (2) hours.  During that time the Defendant and the other occupants of the Apartment were held against their will without freedom of movement in the common-area living room of the Apartment.  Upon information and belief they were not even allowed to use the restroom unaccompanied by an officer of the law.  Further, when Officer ____________ left the apartment to procure a search warrant, another Officer, Officer ____________, was called to the apartment to help Officer ________ detain the occupants including the above-captioned Defendant.  All three officers upon information and belief were at all times in full uniform and carrying agency issued firearms in plain view.  Either or both Officers  _____________ remained inside Apartment _______ up to and until the occupants were charged more than two (2) hours after the illegal entry and after consent to search was denied.  The apparent, continued and never-wavering show of force and restraint was an ongoing seizure (and arguably an arrest) obviously tied forever to the illegal entry.  Therefore, any statements or responses made by the occupants of Apartment _______, including but not limited to the above-captioned Defendant, cannot reasonably be considered “responses sufficiently an act of free will to purge the primary taint of the unlawful invasion.” 

            In the alternative and regardless of whether the original entry and subsequent detention of the Defendant and his co-defendants were lawful or unlawful, the Fifth Amendment of the United States Constitution guarantees that “no person …shall be compelled in any criminal case to be a witness against himself.”  U.S. Const. Amend V.  In Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602; 16 L.Ed. 2D 694 (1966) the standard was set that the Fifth Amendment requires that, prior to custodial interrogation, a person must be advised:

That he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.  Id at 479.

For the purposes of establishing whether someone is in custody and therefore is entitled to receive the benefit afforded him of a Miranda Warning, the North Carolina Court of Appeals has repeatedly discussed the standard as is similarly set out in State v. Hall, 131 N.C. App. 42.   Therein the Court stated:

The test for determining whether the interrogation was custodial is "whether a reasonable person in the suspect's position would believe that he had been taken into custody or otherwise deprived of his freedom of action in any significant way," or whether the suspect felt free to leave. Davis, 305 N.C. at 410, 290 S.E.2d at 581. This is an objective test, based upon a reasonable person standard, and is "to be applied on a case-by-case basis considering all the facts and circumstances." State v. Medlin, 333 N.C. 280, 291, 426 S.E.2d 402, 407 (1993).  

This objective test to be applied on a case-by-case basis simply must be used to determine if a reasonable person would have felt “free to leave.”  In the case at hand, all of the occupants were moved from various areas of the apartment by the color of authority into the common-area living room of Apartment ________ and told to sit down.  They were guarded by at least two (2) uniformed officers with firearms at all times.  Officer ____________ was summoned to the apartment for the sole purpose of assisting in the detention of the occupants.  They were ordered to remain there for more than two (2) hours.  Upon information and belief, the officers stood at most relevant times between the occupants and the only exit.  Furthermore, when one occupant requested to use the restroom, Officer _________ told her that she was not allowed to use the restroom without a police escort.  Any reasonable person similarly situated would hardly feel “free to leave,” nor were any of the occupants in fact allowed to leave.  Therefore, the occupants therein were, without question, in custody.

            The issue of what rises to the level of an “interrogation”, thus requiring the protections of Miranda, was addressed by the North Carolina Court of Appeals in State v. Phelps, 156 N.C. App. 119, 121, 575 S.E.2d 818, 820 (2003), rev'd per curiam for reasons stated in the dissent, 358 N.C. 142, 592 S.E.2d 687, 687-88 (2004).  In Phelps the defendant’s arresting officer without previously providing a Miranda warning told the defendant that he needed to go ahead and tell him if he had any illegal substances or weapons on him before he took him into the jail.  The defendant told the officer that he did.  The officer thereafter seized crack cocaine from his person.  In holding that the defendant’s statement regarding the location of the crack cocaine was inadmissible, the Court stated:

“[The officer] knew or should have known that his statement was reasonably likely to evoke an incriminating response. [The officer]'s objective purpose was to obtain defendant's admission or denial of the possession of contraband. Therefore, we conclude the trial court erred in admitting defendant's incriminating statement because the officer failed to advise defendant of his Miranda warnings prior to the custodial interrogation.”  Id at 123, 575 S.E.2d at 821.

In the instant case, Officer ___________ held up a box to the above-captioned Defendant Officer __________ found under a bed.  In the box Officer __________  located what he believed to be contraband.  Officer ___________, holding up the box to the Defendant, asked Defendant whether the box was his.  Defendant responded that it was.  That overt act of holding up a box containing believed contraband by Officer __________ along with the accompanying question of whether the same belonged to the Defendant was without question done with the sole purpose of eliciting from the Defendant an incriminating statement.  Officer ________’s sole purpose for asking the question in relation to the box was “to obtain defendant’s admission or denial of the possession of contraband.”  Similar to the facts and holding in Phelps, any statement/response to Officer _______’s interrogation of Defendant must therefore be suppressed if the Defendant was not previously confronted with a Miranda warning.    Upon information and belief, the officers in the case never Mirandized any of the occupants of Apartment ______ at any time and therefore the statement made by Defendant to Officer ____________ must be suppressed. 

            Respectfully submitted in support of Defendant’s Motion to Suppress and Incorporated Motion to Dismiss, this the           day of ___________________, 2010.



                                                                                                Marcus E. Hill

                                                                                                Attorney at Law

                                                                                                311 East Main Street

                                                                                                Durham, North Carolina 27701

                                                                                                (919) 688-1941




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