{ "id": 11466250, "name": "STATE OF NORTH CAROLINA v. DANNY SYLVESTER VICK", "name_abbreviation": "State v. Vick", "decision_date": "1998-07-21", "docket_number": "No. COA97-1002", "first_page": "207", "last_page": "220", "citations": [ { "type": "official", "cite": "130 N.C. App. 207" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "245 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "763" } ], "opinion_index": 0 }, { "cite": "295 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563021 ], "year": 1978, "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0309-01" ] }, { "cite": "244 S.E.2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561543, 8561520, 8561587, 8561495, 8561564 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0093-03", "/nc/295/0093-02", "/nc/295/0093-05", "/nc/295/0093-01", "/nc/295/0093-04" ] }, { "cite": "241 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "126-27" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547966 ], "year": 1978, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0177-01" ] }, { "cite": "417 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "507", "parenthetical": "adopting the inevitable discovery doctrine \"as a logical and meaningful extension of our law\"" } ], "opinion_index": 0 }, { "cite": "331 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2502284 ], "year": 1992, "pin_cites": [ { "page": "500", "parenthetical": "adopting the inevitable discovery doctrine \"as a logical and meaningful extension of our law\"" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0491-01" ] }, { "cite": "467 U.S. 431", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6201711 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "444" }, { "page": "387-88" } ], "opinion_index": 0, "case_paths": [ "/us/467/0431-01" ] }, { "cite": "423 S.E.2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "744" } ], "opinion_index": 0 }, { "cite": "333 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549919 ], "year": 1992, "pin_cites": [ { "page": "113-14" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0106-01" ] }, { "cite": "337 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714596 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0304-01" ] }, { "cite": "319 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "615", "parenthetical": "forcible entry thirty seconds after knock-and-announce was reasonable \"since the object of the search was a quantity of powdery contraband peculiarly susceptible to being almost instantly disposed of'" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 317", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521890 ], "year": 1984, "pin_cites": [ { "page": "320", "parenthetical": "forcible entry thirty seconds after knock-and-announce was reasonable \"since the object of the search was a quantity of powdery contraband peculiarly susceptible to being almost instantly disposed of'" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0317-01" ] }, { "cite": "384 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "forcible entry \"a couple of seconds\" after knock-and-announce reasonable where the officer \"heard the sounds of people running and faintly heard the word 'police' cocaine \"is easily disposed of'; and \"quick entry is safer for the officers\"" } ], "opinion_index": 0 }, { "cite": "325 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487808, 2489862, 2491701, 2490491, 2492671 ], "year": 1989, "pin_cites": [ { "parenthetical": "forcible entry \"a couple of seconds\" after knock-and-announce reasonable where the officer \"heard the sounds of people running and faintly heard the word 'police' cocaine \"is easily disposed of'; and \"quick entry is safer for the officers\"" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0275-03", "/nc/325/0275-01", "/nc/325/0275-04", "/nc/325/0275-02", "/nc/325/0275-05" ] }, { "cite": "380 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "366" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526518 ], "year": 1989, "pin_cites": [ { "page": "29-30" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0020-01" ] }, { "cite": "388 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "216-16", "parenthetical": "forcible entry \"approximately one minute\" after knock-and-announce reasonable where the officers \"could hear people talking and a television in the apartment, but nobody came to the door\"" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 189", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520084 ], "year": 1990, "pin_cites": [ { "page": "194", "parenthetical": "forcible entry \"approximately one minute\" after knock-and-announce reasonable where the officers \"could hear people talking and a television in the apartment, but nobody came to the door\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0189-01" ] }, { "cite": "234 S.E.2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "44", "parenthetical": "announcement and entry which were \"almost spontaneous\" held reasonable where officers were searching for heroin; a male had hurriedly left the residence as the officers approached; and the front screen door was closed but the inner door was ajar" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547863 ], "year": 1977, "pin_cites": [ { "page": "69", "parenthetical": "announcement and entry which were \"almost spontaneous\" held reasonable where officers were searching for heroin; a male had hurriedly left the residence as the officers approached; and the front screen door was closed but the inner door was ajar" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0066-01" ] }, { "cite": "502 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "130 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11467346 ], "year": 1998, "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0319-01" ] }, { "cite": "438 U.S. 154", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769234 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "155-56" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/us/438/0154-01" ] } ], "analysis": { "cardinality": 1053, "char_count": 29729, "ocr_confidence": 0.773, "pagerank": { "raw": 1.2606311965762552e-07, "percentile": 0.6123899501476727 }, "sha256": "118904c0d870e4f01691787e7b6bb43b664be338dd2dbb63f100a1d237b7bfb1", "simhash": "1:ad62303231cf0e70", "word_count": 4698 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and HORTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DANNY SYLVESTER VICK" ], "opinions": [ { "text": "GREENE, Judge.\nDanny Sylvester Vick (Defendant) appeals from the trial court\u2019s denial of his motion to suppress evidence.\nIn January 1996, the Raleigh Police Department Drug and Vice Task Force (Drug Task Force), a squad of the police department\u2019s narcotics unit which targets \u201cupper level narcotics dealers and organized crime figures in this area,\u201d received information from a confidential informant that Defendant \u201cwas storing, and transporting and dealing large quantities of drugs.\u201d The informant told the Drug Task Force that:\n[Defendant] lived near Crabtree Valley Mall and he drove a blue Ford Bronco. The informant gave us some more information of which [the Drug Task Force was] able to corroborate and find the Defendant living [in an apartment near Crabtree Valley Mall] and was, in fact, driving a blue Ford Bronco ....\nDetective A.J. Wisniewski (Detective Wisniewski) of the Drug Task Force testified that Defendant was observed making a delivery of a controlled substance to an informant on 11 March 1996. Detective Wisniewski was also present and observed Defendant deliver a controlled substance to an informant on 8 May 1996.\nDetective Brad Kennon (Detective Kennon), also of the Drug Task Force, testified that on 8 May 1996, he \u201cadvised [a confidential informant] to contact [Defendant], and order fifteen hundred dollars worth of cocaine.\u201d\n[While under supervision at the police department,] the informant paged [Defendant] to the informant\u2019s pager. [Defendant], in turn, put his code in the informant\u2019s pager with his home phone number behind it. We then called [Defendant\u2019s] phone number and [Defendant] picked up the phone and took the order for the cocaine, and then briefly after taking the order for the cocaine left his residence, got into a vehicle and traveled [by himself] directly to the meeting spot [chosen by the informant and the Drug Task Force] and was surveilled [sic] by the helicopter and several detectives and vehicles while in [sic] route to that meet.\nDetective Kennon testified that, when they arrived at the prearranged meeting spot:\nThe informant got there and he circled the block one time, because I instructed him not to be at the spot. I wanted [Defendant] to arrive first and then let the informant approach him. So the informant parked across the street and followed my instructions. And [Defendant] pulled into the parking lot where he was supposed to. There were some uniformed police officers across the street at a restaurant eating breakfast, or something. They were unrelated to the case, but it scared [Defendant]. [Defendant] pulled into the parking lot, pulled out, went down to [sic] the street to [another parking lot] and parked in the middle there, and then the informant paged him. . . . [Defendant] returned the call from a cell phone and [directed the informant to meet him at the new location].\nDetective Kennon testified that he told the informant to follow Defendant\u2019s instructions, and Detective Kennon followed the informant to the new location. Detective Kennon and other detectives from the Drug Task Force watched as \u201c[Defendant] got out of his vehicle and got into the informant\u2019s vehicle, sat briefly, fifteen, twenty seconds, got out, got in his vehicle, left. The informant drove approximately a hundred feet across the parking lot and met [Detective Kennon] and turned the evidence over.\u201d The evidence was \u201c[approximately thirty-two grams of powder cocaine.\u201d The informant was never out of Detective Kennon\u2019s line of sight, from the time the initial call to Defendant was made from the police department. Detective Kennon testified that he believed Defendant to be dangerous on the date of this transaction.\nOn 8 May 1996, after observing Defendant deliver cocaine to the informant, Detective Wisniewski prepared an affidavit in order to obtain a search warrant to search Defendant\u2019s apartment. As part of his affidavit, Detective Wisniewski stated:\nWithin the past 72 hours Detectives from the Raleigh Police Department were conducting surveillance of [Defendant\u2019s apartment], During surveillance a confidential and reliable source contacted [Defendant] and ordered a quantity of cocaine. After the order was placed [Defendant] left [his apartment] and drove directly to the location and met the informant, the informant obtained the cocaine from [Defendant]. [Defendant] then left the location. After [Defendant] left [his apartment] he drove directly to the location and met the informant therefore the cocaine came out of [Defendant\u2019s apartment].\nA search warrant was issued for Defendant\u2019s apartment at approximately 2:15 p.m. on 8 May 1996. About an hour later that afternoon, after attempting unsuccessfully to obtain a pass key from Defendant\u2019s apartment manager, the search was executed by the police department\u2019s Selective Enforcement Unit (SEU), \u201ca tactical team . . . which [makes] dynamic entries for drugs [sic] raids or static entries for building searches, and any other kind of high risk situation.\u201d The SEU team was aware, due to the Drug Task Force\u2019s surveillance of Defendant\u2019s apartment, that Defendant was in the apartment at the time the search warrant was executed.\nSergeant T.L. Shermer (Sergeant Shermer) of the SEU testified that in \u201capproximately sixty-five percent of entries [involving drugs], ... a firearm is recovered; at least one. And we find out that out of that number that approximately seventy to seventy-five percent of them, there\u2019s multiple weapons, firearms recovered.\u201d Sergeant Shermer testified that the SEU team takes special precautions in entries involving drugs because of the high correlation between drugs and weapons, and that the SEU team that entered Defendant\u2019s apartment was aware that Defendant was a suspected drug-dealer. Sergeant Shermer stated that the fact that \u201cthe actual covert work was being performed by the Drug Task Force ... took me to a somewhat higher level, as far as being high risk, because . . . they usually deal with, ah \u2014 with high level drug \u2014 drug dealers and drug suppliers, drug traffickers.\u201d Sergeant Shermer testified that, in making the decision as to how long to wait before entering an apartment after the knock-and-announce procedure, his primary consideration is the safety of his officers.\nIt\u2019s basically for officer safety purposes. We don\u2019t want to \u2014 for people to be able to prepare, if we\u2019re going to make an entry, that could arm themselves and things such as that. We want to be as quiet as possible until the last second we make the entry, if we can. . . . My primary concern is officer safety; but as part of the operational plan, [another] concern, is destruction of evidence in the case.\nSergeant Shermer testified that it was his decision alone to decide how long to wait after the initial knock-and-announce before forcibly entering Defendant\u2019s apartment. He stated:\nI base it on several factors. One is, again, officer safety. How long are we going to wait before we go in? If somebody could arm themselves, I\u2019ve got to take that into account. If somebody has verbally or physically denied us entry; and again, basically I use it for an officer \u2014 you know, look at the officer safety is how I look at it.\nMaster Officer J.C. Wacenske (Officer Wacenske), a member of Sergeant Shermer\u2019s SEU team, testified that \u201cwhen we search for narcotics, historically there are usually weapons involved.... Therefore, we heighten our state of alert, obviously, because of that relationship between weapons and narcotics.\u201d Officer Wacenske testified that it was his \u201cspecific duty . . . when we make entry . . . [to] announce [], \u2018Police, search warrant.\u2019 I\u2019m also the one who checks to see if the door is unlocked, and I also knock on the door.\u201d Officer Wacenske testified that on this occasion, he knocked on Defendant\u2019s door and announced, \u201c \u2018Police, search warrant\u2019 . . . and instantaneously I\u2019m checking the handle of the door to see if the door is unlocked, and I\u2019m also listening to see if there \u2014 or, to hear if there is any movement inside the apartment.\u201d Detective Wacenske was asked to describe how he knocked on Defendant\u2019s door, and stated: \u201cI took with my left hand, knocked three times and announced \u2018Police, search warrant\u2019 in a rather loud voice to be sure I was heard.\u201d The prosecutor then asked: \u201cAnd you said that instantaneously you also were checking the door knob?\u201d Officer Wacenske responded: \u201cJust as soon as I got done knocking I used my left hand to check to see if the door knob \u2014 the door was unlocked, which it was not.\u201d Officer Wacenske further testified that after knocking and announcing \u201cPolice, search warrant,\u201d and checking the door knob, he \u201cturned back and looked at Sergeant Shermer just to confirm that he knew the door was locked .... We waited for two or three seconds at least, and then I knocked again and announced, \u2018Police, search warrant.\u2019 \u201d After announcing \u201cPolice, search warrant\u201d for the second time, Detective Wacenske \u201cturned back and looked at Sergeant Shermer again, . . . [then Sergeant Shermer gave the order for forcible entry] and forcible entry was made at that time.\u201d On cross-examination, Officer Wacenske agreed that ten seconds \u201cwould be a fair guesstimate of the time\u201d which elapsed between the first knock-and-announce and the forced entry into Defendant\u2019s apartment.\nSergeant Shermer testified that \u201c[tjhere was no \u2014 no movement or noise that we could hear or they could hear that somebody was attempting to open the door. There was no voice saying, \u2018I\u2019m coming to the door; I\u2019m going to open the door,\u2019 so we felt like our entry was being denied.\u201d Sergeant Shermer stated that after \u201capproximately five to six seconds\u201d of silence following Officer Wacenske\u2019s second knock-and-announce at Defendant\u2019s door, he instructed the SEU team to use their battering ram to make forcible entry into Defendant\u2019s apartment. On cross-examination, Sergeant Shermer agreed that \u201cit was probably close to ten, fifteen seconds\u201d between the initial knock-and-announce and the forcible entry of Defendant\u2019s apartment.\nWhen the SEU team entered Defendant\u2019s apartment, he was standing near his bedroom in his underwear. The SEU team secured Defendant, who was alone in his apartment, and the Drug Task Force detectives came in to begin the actual search for cocaine.\nDetective Kennon testified that when he and the other detectives entered the apartment (after Defendant was secured by the SEU team), they read Defendant the search warrant and then began their search. Detective Wisniewski testified that \u201cI told [Defendant] if we were looking for drugs where would we look, so as to make it easier, and he said the kitchen in the refrigerator.\u201d Detective Kennon testified that they asked Defendant: \u201c[W]here would we look if we were looking for drugs [?]\u201d The detectives then searched the refrigerator and \u201cfound a quantity of drugs, at which time [Defendant] was placed under arrest.\u201d Detective Kennon stated that the \u201cnarcotics in the refrigerator weren\u2019t overly hid. They were just \u2014 they were in a place that we would have found, but in \u2014 to keep from doing damage or dis-ruptinsyfche apartment any more than we have to, sometimes we\u2019ll ask that a#h courtesy to the \u2014 to the people who live there.\u201d Detective Kennon stated that the drugs \u201cwere blatantly laying [sic] in the refrigerator\u201d and \u201cwould have been located\u201d whether or not Defendant told them where to look. Afterwards, \u201cwe took [Defendant] into a separate bedroom and set him down and mirandized him and then asked him some questions.\u201d Detective Kennon advised Defendant of his rights, and then Defendant \u201cindicated that he would like to talk to us, and I asked [Defendant] where he, had obtained the drugs from. He said that he had worked for another male that went by the name of \u2018Q\u2019 that resided in Durham, North Carolina . . . .\u201d Subsequently, \u201c[Defendant] started telling us stories that didn\u2019t make sense. They weren\u2019t logical, and said he didn\u2019t have the phone number for [\u2018Q\u2019] and different things, and we stopped questioning him.\u201d The officers arrested Defendant, and after the search was completed, the officers left a copy of the search warrant in Defendant\u2019s apartment on the dividing half-wall between his kitchen and living room.\nDefendant made a motion to suppress the evidence obtained in the search of his apartment and a motion to dismiss the case against him. The trial court found that the SEU team waited \u201capproximately 10 to 15 seconds\u201d after the first knock-and-announce prior to forcibly entering Defendant\u2019s apartment, and concluded that the officers gave Defendant sufficient notice of their presence prior to entry. The trial court also concluded:\n[Defendant was in custody and had not been advised nor waived his Miranda rights at the time he was asked where the drugs were located. That his response that the drugs were located in the refrigerator was made as a result of a custodial interrogation and in violation of his constitutional rights.\nThe trial court further concluded, however, that \u201cthe cocaine found in the refrigerator would have inevitably been discovered by lawful means without using [Defendant's statement and therefore that the inevitable discovery doctrine applies under these circumstances to allow admission of this evidence.\u201d Based on these conclusions, the trial court denied Defendant\u2019s motion to suppress the cocaine found in Defendant\u2019s refrigerator and denied Defendant\u2019s motion to dismiss. Defendant subsequently pleaded guilty to two counts of trafficking in cocaine by transportation, two counts of trafficking in cocaine by sale and delivery, and three counts of trafficking in cocaine by possession. Defendant, however, reserved his right to appeal the trial court\u2019s order denying his motion to suppress evidence and his motion to dismiss. Defendant received two consecutive thirty-five to forty-two month sentences.\nThe issues are whether: (I) the detective made a false statement in his affidavit invalidating the ensuing search warrant; (II) waiting only ten to fifteen seconds after a knock-and-announce prior to making a forcible entry was reasonable under the circumstances; (III) the cocaine located in Defendant\u2019s refrigerator would inevitably have been discovered by the officers; and (IV) the evidence was obtained from Defendant\u2019s apartment as a result of a substantial violation of N.C. Gen. Stat. \u00a7 15A-252.\nI\n[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant\u2019s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit\u2019s false material set to one side, the affidavit\u2019s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.\nFranks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672 (1978). An officer\u2019s statement, in an affidavit seeking a search warrant, that he had \u201cbeen able to recover both marijuana and cocaine from inside of [the defendant\u2019s] residence, using investigative means\u201d is a false statement where the officer has not been inside of the defendant\u2019s residence, and had actually recovered the drugs from the defendant\u2019s trash can outside of the defendant\u2019s residence. State v. Severn, 130 N.C. App. 319, 323, 502 S.E.2d 882, - (1998). In Severn, the officer\u2019s use of the phrase \u201cusing investigative means\u201d left the issuing magistrate unaware that the officer had not actually recovered drugs from inside of the defendant\u2019s residence, as he had stated, notwithstanding the officer\u2019s argument that \u201cmost of the magistrates know that when . . . officers present something in this fashion . . . that it is a trash pickup.\u201d Id. at 321, 502 S.E.2d at \u2014, slip op. at 3.\nIn this case, Detective Wisniewski\u2019s affidavit requesting a search warrant for Defendant\u2019s apartment stated: \u201cAfter [Defendant] left his residence he drove directly to the location and met the informant therefore the cocaine came out of [Defendant\u2019s apartment].\u201d Defendant contends that this statement was false. We disagree. Detective Wisniewski did not falsely state anywhere in his affidavit that he had direct knowledge that Defendant kept cocaine in his apartment; rather, through the use of the word \u201ctherefore,\u201d Detective Wisniewski made clear in his affidavit that he had inferred that cocaine was in Defendant\u2019s apartment from the surrounding circumstances. See Webster\u2019s Third New International Dictionary 2372 (1968) (defining \u201ctherefore\u201d as \u201ca logical implication\u201d); American Heritage College Dictionary 1406 (3d ed. 1993) (defining \u201ctherefore\u201d as \u201c[f]or that reason or cause; consequently or hence\u201d). Detective Wisniewski\u2019s affidavit did not mislead the issuing magistrate, and therefore does not invalidate the subsequent search of Defendant\u2019s apartment.\nII\nAn officer executing a search warrant is generally required, prior to entering the premises, to \u201cgive appropriate notice of his identity and purpose to the person to be searched, or the person in apparent control of the premises to be searched.\u201d N.C.G.S. \u00a7 15A-249 (1997). After giving notice of his identity and purpose, an officer may enter a residence by force if he \u201creasonably believes either that admittance is being denied or unreasonably delayed or that the premises ... is unoccupied . . . .\u201d N.C.G.S. \u00a7 15A-251 (1997).\nThere is no dispute that the officers in this case knocked on Defendant\u2019s door and announced their purpose prior to entering Defendant\u2019s apartment. Defendant contends, however, that the officers could not have reasonably believed that their admittance was being denied or unreasonably delayed such that forced entry was necessary after only ten to fifteen seconds. The State counters that the officers\u2019 particular knowledge of Defendant, combined with the easy disposability of cocaine and the known high likelihood that drug suppliers possess weapons, made a ten- to fifteen-second delay reasonable in this case.\nThe amount of time that it is reasonable to wait between knock- and-announce and entry \u201cmust depend on the particular circumstances.\u201d State v. Gaines, 33 N.C. App. 66, 69, 234 S.E.2d 42, 44 (1977) (announcement and entry which were \u201calmost spontaneous\u201d held reasonable where officers were searching for heroin; a male had hurriedly left the residence as the officers approached; and the front screen door was closed but the inner door was ajar); see also State v. Jones, 97 N.C. App. 189, 194, 388 S.E.2d 213, 216-16 (1990) (forcible entry \u201capproximately one minute\u201d after knock-and-announce reasonable where the officers \u201ccould hear people talking and a television in the apartment, but nobody came to the door\u201d); State v. Marshall, 94 N.C. App. 20, 29-30, 380 S.E.2d 360, 366, appeal dismissed and disc. review denied, 325 N.C. 275, 384 S.E.2d 526 (1989) (forcible entry \u201ca couple of seconds\u201d after knock-and-announce reasonable where the officer \u201cheard the sounds of people running and faintly heard the word \u2018police\u2019 cocaine \u201cis easily disposed of\u2019; and \u201cquick entry is safer for the officers\u201d); State v. Edwards, 70 N.C. App. 317, 320, 319 S.E.2d 613, 615 (1984) (forcible entry thirty seconds after knock-and-announce was reasonable \u201csince the object of the search was a quantity of powdery contraband peculiarly susceptible to being almost instantly disposed of\u2019), reversed on other grounds, 315 N.C. 304, 337 S.E.2d 508 (1985).\nIn this case, the evidence reveals that the police officers approached Defendant\u2019s apartment during afternoon hours. The officers were aware, due to their surveillance of Defendant\u2019s apartment, that he was inside. At the time the officers were executing the search warrant, they were aware that Defendant had sold large amounts of cocaine to confidential informants on at least two recent occasions. Detective Kennon testified that he \u201cfelt like [Defendant] was dangerous the day we made entry.\u201d The officers loudly knocked on Defendant\u2019s door and announced that they were police officers executing a search warrant, waited at least \u201ctwo or three seconds,\u201d and then proceeded to knock-and-announce a second time. Approximately ten to fifteen seconds elapsed between the initial knock-and-announce and the officers\u2019 forcible entry into Defendant\u2019s apartment. During this ten- to fifteen-second delay, the officers heard no sound from inside Defendant\u2019s apartment, and assumed that entry was being denied. The officers\u2019 assumption, reached after ten to fifteen seconds, that entry was being denied or unreasonably delayed was reasonable under these circumstances; therefore the trial court did not err in denying Defendant\u2019s motion to suppress the evidence recovered from Defendant\u2019s apartment.\nIll\nThe trial court herein concluded as a matter of law that Defendant was in custody and had neither waived nor been advised of his rights at the time Detectives Wisniewski and Kennon asked him where the cocaine was located. The trial court further concluded that Defendant\u2019s response that the drugs were located in the refrigerator was the result of a custodial interrogation in violation of Defendant\u2019s constitutional rights. We agree with these conclusions of the trial court. We likewise agree with the trial court that the \u201cinevitable discovery doctrine\u201d applied to allow admission of the cocaine found in Defendant\u2019s refrigerator.\n\u201cWhen evidence is obtained as the result of illegal police conduct, not only should that evidence be suppressed, but all evidence that is the \u2018fruit\u2019 of that unlawful conduct should be suppressed.\u201d State v. Pope, 333 N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992). The United States Supreme Court has held, however, that evidence which would otherwise be excluded due to the illegal nature of its seizure may be admitted into evidence if the State proves by a preponderance of the evidence that officers would inevitably have discovered the evidence. Nix v. Williams, 467 U.S. 431, 444, 81 L. Ed. 2d 377, 387-88 (1984); accord State v. Garner, 331 N.C. 491, 500, 417 S.E.2d 502, 507 (1992) (adopting the inevitable discovery doctrine \u201cas a logical and meaningful extension of our law\u201d).\nIn this case, officers testified that \u201cthe narcotics in the refrigerator weren\u2019t overly hid. . . . [T]hey were in a place that we would have found.\u201d The officers further testified that the cocaine was \u201cblatantly laying [sic] in the refrigerator\u201d and \u201cwould have been located.\u201d These statements reveal that it was more likely than not that the officers of the Drug Task Force would have found the cocaine lying in the refrigerator even without their initial illegal interrogation of Defendant; therefore the trial court did not err in admitting the cocaine found in Defendant\u2019s refrigerator into evidence.\nIV\nBefore undertaking any search or seizure pursuant to the [search] warrant, the officer must read the warrant and give a copy of the warrant application and affidavit to the person to be searched, or the person in apparent control of the premises or vehicle to be searched. If no one in apparent and responsible control is occupying the premises or vehicle, the officer must leave a copy of the warrant affixed to the premises or vehicle.\nN.C.G.S. \u00a7 15A-252 (1997). Evidence discovered during a search must be suppressed if it \u201cis obtained as a result of a substantial violation\u201d of section 15A-252. N.C.G.S. \u00a7 15A-974 (1997); State v. Fruitt, 35 N.C. App. 177, 179, 241 S.E.2d 125, 126-27, disc. review denied, 295 N.C. 93, 244 S.E.2d 261 (1978). In determining whether a violation is substantial, courts must consider \u201call the circumstances,\u201d including:\na. The importance of the particular interest violated;\nb. The extent of the deviation from lawful conduct;\nc. The extent to which the violation was willful;\nd. The extent to which exclusion will tend to deter future violations ....\nN.C.G.S. \u00a7 15A-974(2). Even where a substantial violation has occurred, however, evidence will only be suppressed where there is a causal connection between the violation and the evidence obtained. State v. Richardson, 295 N.C. 309, 323, 245 S.E.2d 754, 763 (1978). \u201c[I]f the challenged evidence would have been obtained regardless of [the] violation . . . , such evidence has not been obtained \u2018as a result of such official illegality and is not, therefore, to be suppressed by reason of G.S. 15A-974(2).\u201d Id.\nIn this case, the evidence reveals that the officers read the search warrant to Defendant prior to asking Defendant any questions and prior to conducting their search for narcotics. The evidence further reveals, however, that instead of giving Defendant a copy of the warrant application and affidavit prior to searching his apartment, the officers left a copy of the search warrant on the dividing half-wall between the kitchen and the living room of Defendant\u2019s apartment at the conclusion of their search. This constitutes a violation of the plain language of section 15A-252, which requires officers, prior to executing a search warrant, to \u201cgive a copy of the warrant application and affidavit to . . . the person in apparent control of the premises ... to be searched.\u201d Even assuming that this violation was \u201csubstantial,\u201d however, the evidence in Defendant\u2019s apartment was not obtained \u201cas a result\u201d of the officers\u2019 failure to strictly comply with the language of the statute, because the evidence would still have been obtained had the officers given Defendant a copy of the warrant prior to their search. The trial court therefore did not err by denying Defendant\u2019s motion to suppress.\nHaving determined that the search of Defendant\u2019s apartment as conducted pursuant to a validly obtained search warrant that the officers waited a reasonable amount of time after knocking on Defendant\u2019s door and announcing their purpose prior to entering Defendant\u2019s apartment, that the drugs found in Defendant\u2019s refrigerator pursuant to an illegal interrogation would inevitably have been discovered, and that the evidence was not obtained as a result of a substantial violation of section 15A-252, we reject Defendant\u2019s final contention that the search of his apartment, as a whole, was unreasonable.\nAffirmed.\nJudges LEWIS and HORTON concur.\n. We note that there are situations in which an officer may enter a residence without giving notice, but the State does not contend that this case presented such a situation. See N.C.G.S. \u00a7 15A-251.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General John G. Barnwell, for the State.", "George B. Currin, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DANNY SYLVESTER VICK\nNo. COA97-1002\n(Filed 21 July 1998)\n1. Search and Seizure\u2014 probable cause \u2014 officer\u2019s statement\nIn a cocaine trafficking prosecution, a detective\u2019s affidavit did not mislead the magistrate issuing a search warrant and therefore did not invalidate the subsequent search of defendant\u2019s apartment where the detective stated that \u201cafter defendant left his residence he drove directly to the location and met the informant therefore the cocaine came out of defendant\u2019s apart-merit.\u201d Through the use of the word \u201ctherefore\u201d the detective made clear that he had inferred that cocaine was in defendant\u2019s apartment and he did not falsely state anywhere in the affidavit that he had direct knowledge that defendant kept cocaine in his apartment.\n2. Search and Seizure\u2014 forcible entry \u2014 time between knock- and-announce and entry\nThe trial court did not err by denying defendant\u2019s motion to suppress evidence recovered from his apartment where defendant contended that officers could not have reasonably believed that their admittance was being denied or unreasonably delayed after only ten to fifteen seconds. The amount of time that it is reasonable to wait between knock-and-announce and entry must depend on the particular circumstances.\n3. Search and Seizure\u2014 inevitable discovery doctrine\u2014 improper custodial interrogation\nThe trial court did not err by admitting cocaine found in defendant\u2019s refrigerator where defendant\u2019s statement that the drugs were located in the refrigerator was a result of a custodial interrogation in violation of his constitutional rights, but the officers\u2019 statements revealed that it was more likely than not that they would have found the cocaine even without the initial illegal interrogation. The inevitable discovery doctrine applied to allow admission of the cocaine.\n4. Search and Seizure\u2014 warrant \u2014 not given to person in control of premises \u2014 evidence not suppressed\nThe trial court did not err by denying defendant\u2019s motion to suppress cocaine found in his apartment where officers read the search warrant to defendant prior to asking any questions and prior to conducting their search, but left a copy of the warrant in the apartment at the conclusion of the search rather than giving a copy to defendant. This constitutes a violation of the plain language of N.C.G.S. \u00a7 15A-252, but the evidence in defendant\u2019s apartment was not obtained as a result of officers\u2019 failure to strictly comply with the language of the statute and would have been obtained had officers given defendant a copy of the warrant prior to their search.\nAppeal by defendant from judgments dated 10 March 1997 by Judge Robert L. Farmer, and from orders dated 17 June 1997 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 29 April 1998.\nAttorney General Michael F. Easley, by Assistant Attorney General John G. Barnwell, for the State.\nGeorge B. Currin, for defendant appellant." }, "file_name": "0207-01", "first_page_order": 239, "last_page_order": 252 }