{ "id": 8350757, "name": "STATE OF NORTH CAROLINA v. GLENN DEVON McKINNEY", "name_abbreviation": "State v. McKinney", "decision_date": "2005-10-18", "docket_number": "No. COA04-1653", "first_page": "138", "last_page": "147", "citations": [ { "type": "official", "cite": "174 N.C. App. 138" } ], "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": "615 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633348 ], "pin_cites": [ { "page": "692-93" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0688-01" ] }, { "cite": "17 Crim. L. Bull. 156", "category": "journals:journal", "reporter": "Crim. L. Bull.", "year": 1981, "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "313 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "583", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "310 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403258 ], "year": 1984, "pin_cites": [ { "page": "586", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0581-01" ] }, { "cite": "318 F.2d 205", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 161936, 3648963 ], "year": 1963, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/f2d/318/0205-01" ] }, { "cite": "437 U.S. 385", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180644 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "392", "parenthetical": "quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)" }, { "page": "300", "parenthetical": "quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)" } ], "opinion_index": 0, "case_paths": [ "/us/437/0385-01" ] }, { "cite": "543 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155577, 1155619, 1155741, 1155582 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0370-02", "/nc/351/0370-04", "/nc/351/0370-03", "/nc/351/0370-01" ] }, { "cite": "524 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "365" }, { "page": "366", "parenthetical": "citations omitted" }, { "page": "390-91" }, { "page": "366", "parenthetical": "citations omitted" }, { "page": "366" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 386", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239703 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "390" }, { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0386-01" ] }, { "cite": "259 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "246", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "298 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572737 ], "year": 1979, "pin_cites": [ { "page": "471", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0465-01" ] }, { "cite": "392 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171394 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "368" }, { "page": "1159" } ], "opinion_index": 0, "case_paths": [ "/us/392/0364-01" ] }, { "cite": "239 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "463", "parenthetical": "quoting Mancusi v. DeForte, 392 U.S. 364, 368, 20 L. Ed. 2d 1154, 1159 (1968)" } ], "opinion_index": 0 }, { "cite": "293 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567044 ], "year": 1977, "pin_cites": [ { "page": "708", "parenthetical": "quoting Mancusi v. DeForte, 392 U.S. 364, 368, 20 L. Ed. 2d 1154, 1159 (1968)" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0702-01" ] }, { "cite": "484 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "357", "parenthetical": "concluding that the trial court's determination \"must be legally correct, reflecting a correct application of legal principles to the facts found.\"" } ], "opinion_index": 0 }, { "cite": "346 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139403 ], "year": 1997, "pin_cites": [ { "page": "11", "parenthetical": "concluding that the trial court's determination \"must be legally correct, reflecting a correct application of legal principles to the facts found.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0001-01" ] }, { "cite": "461 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "661", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "341 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793199 ], "year": 1995, "pin_cites": [ { "page": "580", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0569-01" ] }, { "cite": "311 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "285", "parenthetical": "\"Findings and conclusions are required in order that there may be a meaningful appellate review of the decision.\"" } ], "opinion_index": 0 }, { "cite": "310 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403051 ], "year": 1984, "pin_cites": [ { "page": "279", "parenthetical": "\"Findings and conclusions are required in order that there may be a meaningful appellate review of the decision.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0274-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "619" }, { "page": "619" }, { "page": "621" }, { "page": "621-22" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "134" }, { "page": "134" }, { "page": "136-38" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "171 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8438167 ], "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0518-01" ] } ], "analysis": { "cardinality": 975, "char_count": 23010, "ocr_confidence": 0.751, "pagerank": { "raw": 2.134055213741436e-07, "percentile": 0.7662184165949444 }, "sha256": "d19a9ac0963b54899b453637e300bb377849b095c1e5c0452c87afd725cfd9d2", "simhash": "1:a76ef400636fa86e", "word_count": 3684 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GLENN DEVON McKINNEY" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nGlenn Devon McKinney (\u201cdefendant\u201d) appeals his conviction for first-degree murder. For the reasons stated herein, we reverse.\nThe State\u2019s evidence presented at trial tends to show the following: On 17 May 2003, law enforcement officers from the Greensboro Police Department discovered the body of Jerry Louis Alston (\u201cAlston\u201d) in the laundry room of his residence. Alston\u2019s body was inside a city-issued trash can, which had been covered with a towel and two candles. Beneath the candles and towel was a computer-generated note reading \u201cGlenn Devon McKinney did this.\u201d\nGreensboro Police Department Sergeant Jane Allen (\u201cSergeant Allen\u201d) was the first law enforcement officer to enter Alston\u2019s residence the day his body was discovered. Sergeant Allen had gone to Drexel Road in Greensboro, North Carolina, in an effort to investigate an \u201cassault [that] was supposed[] to have taken place.\u201d Earlier that day, Greensboro Police Department Sergeant D.S. Morgan (\u201cSergeant Morgan\u201d) notified Sergeant Allen that \u201csomeone named Phoenix may have killed someone named Jerry somewhere on Drexel Road.\u201d Sergeant Morgan subsequently informed Sergeant Allen that an individual named Amy Millikan (\u201cMillikan\u201d) \u201chad said that her roommate had told her that her roommate\u2019s friend had told her that her boyfriend named Phoenix had advised that he had killed or assaulted an individual named Jerry on Drexel Road.\u201d As Sergeant Allen was approaching Drexel Road, she was informed that Alston\u2019s residence was \u201cthe house that seemed to match the description that was being given\u201d by an individual named Aja Snipes (\u201cSnipes\u201d), as well as neighbors.\nWhen Sergeant Allen arrived at Alston\u2019s residence, she noticed that the residence \u201cappeared to be secure[,]\u201d that the curtains or blinds of the residence were drawn, and that there was a small dog tied to a short leash near the rear of the residence. Sergeant Allen did not force entry into the residence at that time, because \u201c[a]t that point [she] needed more to go on\u201d and \u201cdidn\u2019t know for sure that an assault had occurred in there.\u201d Shortly thereafter, Sergeant Morgan notified Sergeant Allen that defendant was reported to be driving Alston\u2019s vehicle. Sergeant Allen noticed that the vehicle was not in Alston\u2019s driveway, and she began to speak to Irma Alston (\u201cIrma\u201d), Alston\u2019s sister. Irma told Sergeant Allen that Alston lived at the residence. Alston\u2019s brother, Ricky Alston (\u201cRicky\u201d), subsequently arrived at the residence. Ricky informed Sergeant Allen that \u201che, like his sister, had not heard from [Alston] for at least several days . . . .\u201d Sergeant Allen thereafter contacted Alston\u2019s employer. Although Ricky was \u201cextremely concerned about the well-being of his brotherf,]\u201d based upon the information that had been presented to her, Sergeant Allen did not believe it was necessary to enter the residence. Instead, she believed she should continue her investigation in order to determine whether forced entry was necessary.\nSergeant Allen th\u00e9n \u201cleft briefly\u201d to use the restroom. When she returned, Ricky had removed an air conditioning unit from a window and entered the residence. After Ricky \u201callowed\u201d Sergeant Allen and Sergeant Morgan to enter, the officers walked through the residence. In a bedroom of the residence, Sergeant Allen observed \u201cwhat appeared to be some dark spots on the wall.\u201d Sergeant Allen believed the spots were \u201csome sort of high velocity spatter[,]\u201d and she \u201cconsidered the possibility\u201d that the spots might be blood and that \u201csome sort of an assault . . . might have taken place within the room.\u201d She noticed more dark colored liquid stains on the television, bed, chair, and carpet. Sergeant Allen asked Ricky whether he had seen the spots before. Ricky replied that he had not, and that he believed \u201cperhaps maybe it was paint or something.\u201d Sergeant Allen thereafter \u201cdecided that a search warrant would be needed to proceed any further inside the residence.\u201d Sergeant Allen instructed Ricky to leave the residence, and she directed those officers outside the residence to secure the residence while she obtained a search warrant.\nAfter obtaining a search warrant, Sergeant Allen returned to Alston\u2019s residence with Greensboro Police Department Detective David Spagnola (\u201cDetective Spagnola\u201d). While crime scene technicians investigated the bedroom, Sergeant Allen and Detective Spagnola noticed a large, city-issued trash can in the laundry room of the residence. The officers believed it was unusual for the trash can to be inside, and Detective Spagnola attempted to lift it. After Detective Spagnola was unable to lift it, Sergeant Allen believed that there might be a victim inside the trash can. The officers thereafter asked the crime scene technicians to photograph the trash can and its contents. When the officers opened the trash can, they discovered Alston\u2019s body inside.\nGreensboro Police Department Corporal Michael McIntosh (\u201cCorporal McIntosh\u201d) was speaking with Snipes while Alston\u2019s residence was being searched. Corporal McIntosh had learned that Snipes was defendant\u2019s girlfriend, and that defendant was living with Alston at the residence. During their ensuing conversations, Snipes informed Corporal McIntosh that she had spoken with defendant earlier that week and that defendant had admitted killing Alston. Snipes also informed Corporal McIntosh that defendant called her to apologize for \u201cg[etting] her involved in the situation\u201d and to request that she wire him money in Florida. Corporal McIntosh thereafter asked Snipes to aid him in convincing defendant to turn himself over to the police.\nDefendant subsequently turned himself over to the Greensboro Police Department and, on 21 July 2003, he was indicted for the first-degree murder of Alston. Defendant\u2019s trial began the week of 12 April 2004. Prior to trial, defendant filed a motion to suppress the evidence seized during the search of Alston\u2019s residence. Following a hearing on 8 April 2004, the trial court denied defendant\u2019s motion. At trial, defendant testified that he and Alston had been fighting the night of Alston\u2019s death, and that he killed Alston in self-defense. On 16 April 2004, the jury found defendant guilty of the first-degree murder of Alston. After finding that defendant had a prior felony record level III, the trial court sentenced defendant to life imprisonment without parole. Defendant appeals.\nThe dispositive issue on appeal is whether the trial court erred by denying defendant\u2019s motion to suppress the evidence found during the search of Alston\u2019s residence. Defendant argues that the police officers\u2019 initial entry into the residence was unlawful, and that the subsequent search warrant was based upon \u201cfruit of the \u2018poisonous\u2019 tree.\u201d We agree.\nWe note initially that while defendant filed a pretrial motion to suppress the evidence seized during the search of Alston\u2019s residence, he failed to object at each instance during the trial when this evidence was presented. Although our legislature has recently amended the Rules of Evidence to provide that \u201c[o]nce the [trial] court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal[,]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) (2003), this Court has more recently held that this amendment was unconstitutional as it is inconsistent with N.C.R. App. P. 10(b)(1). State v. Tutt, 171 N.C. App. 518, 521, 615 S.E.2d 688, 692-93 (No. COA04-821) (Filed 19 July 2005). Nevertheless, recognizing that the amendment to Rule 103 went into effect before the instant case went to trial, and that therefore defense counsel was operating under an assumption of its constitutionality, in our discretion pursuant to N.C.R. App. P. 2, we have chosen to review defendant\u2019s argument.\nOur review of a trial court\u2019s denial of a motion to suppress is \u201cstrictly limited to determining whether the trial judge\u2019s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge\u2019s ultimate conclusions of law.\u201d State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Although our case and statutory law encourages trial courts to be specific in their orders regarding suppression motions, see, e.g., State v. Horner, 310 N.C. 274, 279, 311 S.E.2d 281, 285 (1984) (\u201cFindings and conclusions are required in order that there may be a meaningful appellate review of the decision.\u201d) and N.C. Gen. Stat. \u00a7 15A-977(f) (2003) (requiring the trial court to \u201cset forth in the record [its] findings of fact and conclusions of law\u201d regarding a suppression motion), our Supreme Court has previously stated that \u201c[i]f there is no material conflict in the evidence on voir dire, it is not error to admit the challenged evidence without making specific findings of fact.... In that event, the necessary findings are implied from the admission of the challenged evidence.\u201d State v. Vick, 341 N.C. 569, 580, 461 S.E.2d 655, 661 (1995) (citations omitted).\nIn the instant case, the transcript of the suppression hearing reflects that, after eliciting testimony from Sergeant Allen, the State argued that defendant had no standing to object to the initial war-rantless entry of Alston\u2019s residence, and, in the alternative, that there were sufficient exigent circumstances authorizing law enforcement officials to enter the residence. The trial court thereafter concluded that \u201cin its discretion, [it would] deny the motion to suppress and deny the motion to throw out the search warrant and the evidence [which] relied upon information that was illegally obtained by law enforcement.\u201d The trial court offered no reasoning for its decision at that time. In an order filed 12 April 2004, the trial court made the following findings of fact:\n1. Members of the Greensboro Police Department obtained information as to a possible homicide at the residence of 1917 Drexel Road.\n2. Upon arriving at said address, the residence was secure, meaning locked.\n3. Officers received other information that family members had not heard from the owner of the residence, [Alston],\n4. That [Alston] was the possible victim in the residence.\n5. A family member was contacted in order to gain entry.\n6. The family member, [Ricky], arrived at 1917 Drexel Road, and did not have a key to the residence.\n7. [Ricky] then went through a window of the residence. Once inside, [Ricky] invited members of the Greensboro Police Department inside.\n8. Greensboro Police Department conducted a cursory search to see if anyone was in need of medical assistance.\n9. Once inside the residence, officers observed a bedroom with possible blood stains and spatter throughout the room and walls.\n10.At that point officers exited the residence to obtain a search warrant.\nBased upon these findings of fact, the trial court ruled as follows:\n1. [Defendant\u2019s] motion to suppress evidence illegally seized is denied.\n2. [Defendant\u2019s] motion to suppress evidence obtained by virtue of a search without a warrant is denied.\nAs detailed above, in its order denying defendant\u2019s motion to suppress, the trial court merely summarized the evidence presented at voir dire and offered a blanket conclusion regarding the ultimate issue before it. Assuming arguendo that this was proper considering the circumstances, and even according that \u201cgreat deference\u201d given to the trial court in reaching its determination, Cooke, 306 N.C. at 134, 291 S.E.2d at 619, because we conclude that the trial court\u2019s conclusions were not legally correct, we reverse. See State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997) (concluding that the trial court\u2019s determination \u201cmust be legally correct, reflecting a correct application of legal principles to the facts found.\u201d).\n\u201c[I]t is clear that \u2018capacity to claim the protection of the [Fourth] Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion.\u2019 \u201d State v. Boone, 293 N.C. 702, 708, 239 S.E.2d 459, 463 (1977) (quoting Mancusi v. DeForte, 392 U.S. 364, 368, 20 L. Ed. 2d 1154, 1159 (1968)). \u201cThus, the lack of property rights in an invaded area is not necessarily determinative of whether an individual\u2019s Fourth Amendment rights have been infringed.\u201d State v. Alford, 298 N.C. 465, 471, 259 S.E.2d 242, 246 (1979) (citations omitted). Instead, to assert standing and successfully challenge the legality of a search, a defendant may demonstrate that the search occurred in an area in which he had a reasonable expectation of privacy. See id.\nIn the instant case, defense counsel attached an affidavit to defendant\u2019s motion to suppress alleging that defendant was a \u201clawful resident[]\u201d of Alston\u2019s home at the time it was searched. At the suppression hearing, Sergeant Allen admitted that when she and other law enforcement officers first arrived at Alston\u2019s residence, they \u201chad information that [defendant] was a resident of\u201d Alston\u2019s residence, and that either Millikan or Snipes \u201cbelieved that he resided there.\u201d At trial, various witnesses described defendant as Alston\u2019s \u201croommate,\u201d including those law enforcement officers who entered Alston\u2019s residence and acted pursuant to similar information from informants. In light of the foregoing, we conclude that there is no issue regarding whether defendant had standing to object to the warrantless search of Alston\u2019s residence. Accordingly, to the extent that it relied upon defendant\u2019s standing in reaching its decision, we conclude that the trial court erred.\nUnder the general rule, prior to searching the residence of a private citizen, law enforcement officials are required to secure a Warrant based upon probable cause. See, e.g, State v. Woods, 136 N.C. App. 386, 390, 524 S.E.2d 363, 365, disc. review denied, 351 N.C. 370, 543 S.E.2d 147 (2000). However, \u201cwhere law enforcement officers are responding to an emergency and there is a \u2018compelling need for official action and no time to secure a warrant,\u2019 \u201d exigent circumstances exist which allow the officers to enter a residence without a warrant. Id. at 390, 524 S.E.2d at 366 (citations omitted). Thus, \u201c[w]here . . . officers believe that persons are on the premises in need of immediate aid, or where there is a need \u2018to protect or preserve life or avoid serious injury,\u2019 the Supreme Court has held that a warrantless search does not violate the Fourth Amendment.\u201d Id. at 390-91, 524 S.E.2d at 366 (citations omitted). In such situations, \u201c \u2018[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.\u2019 \u201d Mincey v. Arizona, 437 U.S. 385, 392, 57 L. Ed. 2d 290, 300 (1978) (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)). However, where a defendant challenges the circumstances justifying a warrant-less search, the burden is on the State to prove the existence of such exigent circumstances. Woods, 136 N.C. App. at 391, 524 S.E.2d at 366.\n\u201cFacts and circumstances sufficient to constitute \u2018exigent circumstances\u2019 in the context of [F]ourth [A]mendment searches vary widely and have been the subject of a significant number of cases.\u201d State v. Johnson, 310 N.C. 581, 586, 313 S.E.2d 580, 583 (1984) (citations omitted). \u201cDespite the numerous fact situations giving rise to the characterization of \u2018exigency,\u2019 it appears to be the essence of \u2018exigent circumstances\u2019 that there was \u2018the lack of time to obtain a warrant without thwarting the arrest or making it more dangerous. Where time was adequate, failure to obtain a warrant should not be excused.\u2019 \u201d Id. (quoting Latzer, Enforcement Workshop: Police Entries to Arrest\u2014Payton v. New York, 17 Crim. L. Bull. 156, 165 (1981)) (emphasis in original).\nIn the instant case, we are not convinced that the circumstances created an exigency requiring that law enforcement officials immediately enter Alston\u2019s residence. At the suppression hearing, Sergeant Allen agreed that the information she had obtained was \u201crelated to [her], maybe second or third hand,\u201d and it indicated only that \u201csomething had happened [at Alston\u2019s residence] several days before perhaps [.]\u201d When asked whether she could \u201cstate to the Court that there was an emergency to go in there and help someone that had been dead two to three days,\u201d Officer Allen replied as follows:\nNo, sir. However, we frequently \u2014 we police officers frequently get information from citizens who express concern over the welfare of a relative or a friend and we will respond to residences. When we get this information, when it\u2019s coming third hand or secondhand, we attempt to verify all the facts that we can, of course. And in doing so when Miss Snipes was spoken to, the officers, as they related to me, said that she had said something bad had happened, that he had possibly been killed. As an officer I can\u2019t conclude that [] I have a victim of an assault because someone has said secondhand that that person may have been killed if they were not actually a witness to the assault that that person was actually killed. Therefore, to me, there was still the possibility that there might be someone inside the residence in need of medical attention or some sort of assistance.\nSergeant Allen later testified that she also had received \u201cinformation from [Alston\u2019s] relatives and his co-workers that he had not been seen since Thursday .... [and] that this was unusual for him not to show up for work.\u201d Nevertheless, as detailed above, Sergeant Allen testified at trial that the residence appeared to be secure upon her arrival, that the curtains or blinds of the residence were drawn, and that there were no cars in the driveway. She also testified that she \u201cneeded more to go on\u201d and \u201cdidn\u2019t know for sure\u201d whether an assault had occurred in Alston\u2019s residence or whether it was necessary for her to enter the residence. We conclude that this evidence, when viewed in its entirety, does not establish an immediate need of entry into Alston\u2019s residence. Although law enforcement officers were notified of a possible homicide, other pertinent information indicated that if a homicide had occurred, it had occurred more than two days prior to the officers\u2019 arrival at Alston\u2019s residence. Sergeant Allen and the other officers noted that Alston\u2019s residence was secure upon their arrival. After he was allowed to remove an air conditioning unit from a window of the residence in order to enter it, Ricky informed the officers that there was no one inside. At trial, Ricky testified that he, his sisters, and wife all walked through the residence prior to inviting the officers in, and that no one had seen \u201cany bodies\u201d in the residence. There is no indication that, had the officers left the scene in order to obtain a warrant, defendant\u2019s arrest would have been thwarted or Alston would have survived. In light of the foregoing, we conclude that the State failed to establish any exigent circumstances authorizing the officers\u2019 warrantless entry into Alston\u2019s residence. Accordingly, to the extent that the trial court relied upon exigent circumstances in reaching its decision, we conclude that the trial court erred.\nWe note that in its brief, the State asserts various other reasons that the trial court could have relied upon in denying defendant\u2019s motion to suppress, including that defendant had abandoned the residence and that the evidence would have been discovered inevitably. However, in Cooke, our Supreme Court noted that \u201c[i]t would clearly be unfair\u201d for an appellate court to consider on appeal those contentions not originally argued at the trial level, and the Court refused to allow the State \u201ca gratuitous second chance\u201d to develop new theories on remand. 306 N.C. at 136-38, 291 S.E.2d at 621. In the instant case, as there is \u201cno affirmative indication in the record that the State intended to, or tried to, rely upon\u201d the alleged inevitable discovery of the evidence or defendant\u2019s abandonment of the residence to defeat the motion to suppress, in light of Cooke, we are compelled to conclude that the State has abandoned both arguments. Id. at 138, 291 S.E.2d at 621-22.\nIt is a fundamental principle of our legal system that an individual\u2019s Fourth Amendment rights should not be violated, regardless of what charge that individual faces. Thus, even in the most grisly of cases, an individual\u2019s right to be free from illegal search and seizure must be strictly upheld. Where a trial court fails to suppress unconstitutionally seized evidence, the defendant is entitled to a new trial unless the State demonstrates that the error was harmless beyond a reasonable doubt. N.C. Gen. Stat. \u00a7 15A-1443(b) (2003). In the instant case, after reviewing the pertinent case law and the record of defendant\u2019s trial, we conclude that the warrantless entry of Alston\u2019s residence was impermissible under those theories advanced by the State. Because we are not persuaded that the State produced overwhelming evidence to support defendant\u2019s conviction notwithstanding that evidence thereafter seized, we reverse defendant\u2019s conviction and order a new trial.\nReversed; new trial.\nJudges HUDSON and ELMORE concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Edwin W. Welch, for the State.", "Paul F. Herzog for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GLENN DEVON McKINNEY\nNo. COA04-1653\n(Filed 18 October 2005)\nSearch and Seizure\u2014 motion to suppress evidence \u2014 unlawful entry \u2014 fruit of the poisonous tree\nThe trial court erred in a first-degree murder case by denying defendant\u2019s motion to suppress the evidence found during the search of the victim\u2019s residence at which defendant also resided, and defendant is entitled to a new trial, where the victim\u2019s brother removed a window air conditioner in order to enter the residence and allowed officers to enter, officers entered without a search warrant and discovered what appeared to be bloodstains, and officers then obtained a search warrant and discovered the victim\u2019s body in the residence, because: (1) defendant had an expectation of privacy in the residence and had standing to challenge the officers\u2019 initial warrantless entry into the residence; (2) exigent circumstances did not exist to justify the officers\u2019 warrantless entry into the residence; (3) the State waived claims that defendant had abandoned the residence and that the evidence would have been inevitably discovered by its failure to rely on those claims to defeat defendant\u2019s motion to suppress at trial; and (4) the officers\u2019 initial warrantless entry into the residence was unlawful and the subsequent search warrant was based upon \u201cfruit of the poisonous tree.\u201d\nAppeal by defendant from judgment entered 16 April 2004 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 25 August 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General Edwin W. Welch, for the State.\nPaul F. Herzog for defendant-appellant." }, "file_name": "0138-01", "first_page_order": 168, "last_page_order": 177 }