{ "id": 139625, "name": "STATE OF NORTH CAROLINA v. KENNETH E. SMITH", "name_abbreviation": "State v. Smith", "decision_date": "1997-07-24", "docket_number": "No. 309PA96", "first_page": "794", "last_page": "801", "citations": [ { "type": "official", "cite": "346 N.C. 794" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "472 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": -1 }, { "cite": "123 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "year": 1996, "opinion_index": -1 }, { "cite": "49 ALR Fed. 511", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "weight": 2, "opinion_index": -1 }, { "cite": "4 ALR4th 1050", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "31 ALR2d 1078", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "opinion_index": -1 }, { "cite": "467 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "342 N.C. 882", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795976 ], "year": 1996, "pin_cites": [ { "page": "885" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0882-01" ] }, { "cite": "436 U.S. 128", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490215 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "138" }, { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/us/436/0128-01" ] }, { "cite": "517 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11746960 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "\" '[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional' \" (quoting Scott v. United States, 436 U.S. 128, 138, 56 L. Ed. 2d 168, 177 (1978)" }, { "page": "97-98", "parenthetical": "\" '[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional' \" (quoting Scott v. United States, 436 U.S. 128, 138, 56 L. Ed. 2d 168, 177 (1978)" } ], "opinion_index": 0, "case_paths": [ "/us/517/0806-01" ] }, { "cite": "407 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552935 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0363-01" ] }, { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "weight": 12, "year": 1973, "pin_cites": [ { "page": "222" }, { "page": "860" }, { "page": "227" }, { "page": "863" }, { "page": "227-28" }, { "page": "863" }, { "page": "231-32" }, { "page": "865" } ], "opinion_index": 0, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "445 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777746 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "586" }, { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/us/445/0573-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "69" } ], "opinion_index": 0 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "year": 1994, "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "130 L. Ed. 2d 649", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "513 U.S. 1089", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1330912, 1335109, 1330918, 1335077, 1335365, 1331497, 1331403, 1330808, 1334705, 1330705, 1331381, 1331288, 1332409, 1331131 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/513/1089-08", "/us/513/1089-06", "/us/513/1089-12", "/us/513/1089-05", "/us/513/1089-04", "/us/513/1089-10", "/us/513/1089-11", "/us/513/1089-13", "/us/513/1089-01", "/us/513/1089-02", "/us/513/1089-03", "/us/513/1089-09", "/us/513/1089-07", "/us/513/1089-14" ] }, { "cite": "423 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "64" } ], "opinion_index": 0 }, { "cite": "332 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503651 ], "year": 1992, "pin_cites": [ { "page": "592-93" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0583-01" ] } ], "analysis": { "cardinality": 695, "char_count": 16400, "ocr_confidence": 0.751, "pagerank": { "raw": 5.943492550163915e-07, "percentile": 0.9534424593866283 }, "sha256": "471dc8159d183175ff25c262586f1db9638a517dc2e1a9dda951510881c8756d", "simhash": "1:a437704227c486e1", "word_count": 2677 }, "last_updated": "2023-07-14T19:49:00.247328+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH E. SMITH" ], "opinions": [ { "text": "PARKER, Justice.\nOn 24 April 1995 defendant was indicted for possession of marijuana with intent to sell and deliver. Defendant filed a motion to suppress evidence seized during a warrantless search of defendant\u2019s residence on 20 January 1995. At the hearing on defendant\u2019s motion, the trial court concluded that defendant\u2019s constitutional rights were violated by the warrantless search and granted defendant\u2019s motion to suppress.\nThe order allowing defendant\u2019s motion to suppress contains the following findings of fact. Prior to 20 January 1995 Detective E.M. Ruiz of the Winston-Salem Police Department received information that defendant possessed drugs at his residence. Detective Ruiz obtained this information from defendant\u2019s girlfriend, Janet Abrams. On 20 January 1995 Abrams called Ruiz and informed Ruiz that the drugs were located in a black suitcase and a black trunk in the room Abrams shared with defendant. Detective Ruiz relayed this information to Detective J.D. Cooke, also with the Winston-Salem Police Department. The detectives concluded they did not have sufficient information to obtain a search warrant for defendant\u2019s residence and decided to use a procedure known as \u201cknock and talk.\u201d\nThe trial court made the following findings concerning the \u201cknock and talk\u201d procedure.\nThe \u201cknock and talk\u201d procedure is a tactic used by law enforcement in Winston-Salem when they get information that a certain person has drugs in a residence but the officers don\u2019t have probable cause for a search warrant. The officers then proceed to the residence, knock on the door, and ask to be admitted inside. Thereafter gaining entry, the officers inform the person that they\u2019re investigating information that drugs are in the house. The officers then ask for permission to search and apparently are successful in many cases in getting the occupant\u2019s \u201capparent consent\u201d.\nThe trial court found that in the instant case Abrams told Ruiz in advance that she would give consent to search the bedroom she shared with defendant. Detective Cooke and Detective Ruiz arrived at defendant\u2019s residence with three additional officers and a K-9 dog. The trial court also made the following findings:\nThat Detective Ruiz and Detective Cook approached the door, knocked on the door. That a James Walters came to the door. The two officers were in plainclothes with a badge and guns in holsters and that the other three officers and the dog remained in the van in front of the house. That the officers asked Mr. Walters if they could come in rather than stand outside. That they then went inside. That Officer Ruiz advised Mr. Walters they were investigating drugs and had information that Kenneth Smith had the drugs there in that residence. That Officer Ruiz asked Mr. Walters if they could search and he gave permission to search the common areas and said he had the bedroom in the basement where he slept on a couch.\nAdditional findings were that the other three officers and the K-9 dog then entered the house and conducted a search in these areas. No controlled substances were found. Detective Ruiz asked Abrams if the officers could search the bedroom she occupied with defendant, \u201cto which she had already stated that she would give consent.\u201d The K-9 dog entered the room and indicated that drugs were in a suitcase and a black trunk located in the bedroom closet. A bag of marijuana was also found in the closet.\nBased on these findings the trial court concluded that defendant\u2019s constitutional rights had been violated and granted defendant\u2019s motion to suppress. The State appealed to the Court of Appeals, which affirmed the order granting defendant\u2019s motion to suppress. On 16 July 1996 the State filed a petition for discretionary review pursuant to N.C.G.S. \u00a7 7A-31 and a notice of appeal of a constitutional question pursuant to N.C.G.S. \u00a7 7A-30. On 5 September 1996 this Court granted defendant\u2019s petition for discretionary review.\nIn reviewing the trial court\u2019s order following a motion to suppress, we are bound by the trial court\u2019s findings of fact if such findings are supported by competent evidence in the record; but the conclusions of law are fully reviewable on appeal. State v. Mahaley, 332 N.C. 583, 592-93, 423 S.E.2d 58, 64 (1992), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 649 (1995).\nWith the exception of a few immaterial discrepancies, the State does not take issue with the findings of fact set out by the trial court. The State does, however, contest the trial court\u2019s conclusions of law which were as follows:\nBASED ON THE FOREGOING, the Court concludes that the defendant\u2019s constitutional rights were violated in that the officers entered inside the house without a search warrant in an effort to circumvent the Fourth Amendment by searching the house without a search warrant. The Court further concludes that under the facts of this case the consent given by Mr. Walters was also to get around the Fourth Amendment and that initial entry into the house was a violation of the Fourth Amendment and that the later consent could not validate the search. Even if the officers had probable cause, it does not excuse their failure to obtain a search warrant.\nWe agree with the State that the trial court erred in its conclusions of law.\nThe Fourth Amendment to the United States Constitution protects the \u201cright of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.\u201d U.S. Const, amend. IV. The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994). Similarly, the Constitution of the State of North Carolina provides that \u201c[g]eneral 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.\u201d N.C. Const, art. I, \u00a7 20.\n\u201cIt is a \u2018basic principle of Fourth Amendment law\u2019 that searches and seizures inside a home without a warrant are presumptively unreasonable.\u201d Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d 639, 651 (1980). Consent, however, has long been recognized as a special situation excepted from the warrant requirement, and a search is not unreasonable within the meaning of the Fourth Amendment when lawful consent to the search is given. Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854 (1973). For the warrantless, consensual search to pass muster under the Fourth Amendment, consent must be given and the consent must be voluntary. Id. at 222, 36 L. Ed. 2d at 860. Whether the consent is voluntary is to be determined from the totality of the circumstances. Id. at 227, 36 L. Ed. 2d at 863.\nSimilarly, N.C.G.S. \u00a7 15A-221(a) provides for warrantless searches and seizures \u201cif consent to the search is given.\u201d Under N.C.G.S. \u00a7 15A-221(b) \u201c \u2018consent\u2019 means a statement to the officer, made voluntarily..., giving the officer permission to make a search.\u201d See also State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991).\nFrom the findings made by the trial court, we find no support for the conclusion that defendant\u2019s constitutional rights were violated \u201cin that the officers entered inside the house without a search warrant in an effort to circumvent the Fourth Amendment by searching the house without a search warrant.\u201d The fact that Detective Ruiz had previously obtained information concerning the location of drugs in the home and had previously spoken with one of the residents concerning her consent to search does not invalidate a lawful consent to search. In Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, the United States Supreme Court expressly recognized the situation presented by the evidence in this case. In determining the test for voluntariness of consent searches, the Court addressed the competing concerns raised by the need for consent searches and the necessity for such searches to be free from coercion. The Court stated:\nIn situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence. . . . And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent search may still be valuable. If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search pursuant to a warrant is not justified. In short, a search pursuant to consent may result in considerably less inconvenience for the subject of the search, and, properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.\nId. at 227-28, 36 L. Ed. 2d at 863. The Court further stated:\nConsent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person\u2019s home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning.\nId. at 231-32, 36 L. Ed. 2d at 865.\n\u201cKnock and talk\u201d is a procedure utilized by law enforcement officers to obtain a consent to search when they lack the probable cause necessary to obtain a search warrant. That officers approach a residence with the intent to obtain consent to conduct a warrantless search and seize contraband does not taint the consent or render the procedure per se violative of the Fourth Amendment. See Whren v. United States, 517 U.S. 806, -, 135 L. Ed. 2d 89, 97-98 (1996) (\u201c \u2018[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional\u2019 \u201d (quoting Scott v. United States, 436 U.S. 128, 138, 56 L. Ed. 2d 168, 177 (1978)). Therefore, the subjective state of mind of Detectives Cooke and Ruiz in this case does not invalidate the officers\u2019 otherwise lawful conduct.\nThe issue then is whether the officers\u2019 actions in conducting this search were in fact lawful. The two questions determinative of this issue are (i) whether Walters voluntarily gave consent for the detectives to enter the house, and (ii) whether Abrams voluntarily consented to the search of the room she shared with defendant. Defendant argues that the trial court correctly found that the officers gained their initial entry into the house in an unlawful, nonconsensual manner. The trial court found that after knocking on the door, \u201cthe officers asked Mr. Walters if they could come in rather than stand outside. That they then went inside.\u201d Defendant argues that the lack of a specific finding of fact as to Walters\u2019 consent for the detectives to enter the premises renders the initial entry into the residence illegal and that the illegal entry invalidated Walters\u2019 and Abrams\u2019 subsequent consents to search.\nWhen a trial court conducts a hearing on a motion to suppress, the court \u201cshould make findings of fact that will support its conclusions as to whether the evidence is admissible. If there is no conflict in the evidence on a fact, failure to find that fact is not error. Its finding is implied from the ruling of the court.\u201d State v. Munsey, 342 N.C. 882, 885, 467 S.E.2d 425, 427 (1996). In the instant case the evidence that Walters granted the officers permission to enter was uncontradicted, and no evidence suggested coercion or intimidation by the detectives. The conclusion by the trial court that \u201cthe consent given by Mr. Walters was also to get around the Fourth Amendment and that initial entry into the house was a violation of the Fourth Amendment\u201d implies that consent to enter the house was given by Mr. Walters. After reviewing the entire record in this case, we conclude that the trial court based its conclusion that defendant\u2019s constitutional rights were violated on the erroneous belief that the \u201cknock and talk\u201d procedure is unconstitutional rather than on any lack of permission for the detectives to enter the premises initially.\nThe trial court did not make a specific finding as to whether Abrams voluntarily consented to the search of the room which she and defendant occupied, and the evidence on this point is conflicting. For this reason we cannot determine as a matter of law whether the warrantless search of the room where the drugs were seized violated defendant\u2019s Fourth Amendment rights. Accordingly, we reverse the decision of the Court of Appeals and remand to that court for further remand to the Superior Court, Forsyth County, for reconsideration of, and further findings on, defendant\u2019s motion to suppress in light of this opinion.\nREVERSED AND REMANDED.\nAlthough present in the courtroom, Walters was not called to testify by either the State or defendant.", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Jane R. Garvey, Assistant Attorney General, for the State-appellant.", "Daniel S. Johnson for defendant-appellee.", "Winston-Salem Police Department, by Mary Claire McNaught, on behalf of North Carolina Association of Police Attorneys, North Carolina Association of Chiefs of Police, and North Carolina Police Executives Association, amici curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH E. SMITH\nNo. 309PA96\n(Filed 24 July 1997)\n1. Searches and Seizures \u00a7 68 (NCI4th)\u2014 consent to search\u2014 previous information about drugs \u2014 previous conversation . about consent\nThe fact that an officer had previously obtained information concerning the location of drugs in a home and had previously spoken with one of the residents concerning her consent to search does not invalidate a lawful consent to search.\nAnn Jur 2d, Searches and Seizures \u00a7 92.\nAuthority to consent for another to search or seizure. 31 ALR2d 1078.\nAdmissibility of evidence discovered in search of defendant\u2019s property or premises authorized by one, other than relative, who is cotenant or common resident with defendant \u2014 state cases. 4 ALR4th 1050.\nAdmissibility of evidence discovered in warrantless search of property or premises authorized by one having ownership interest in property or premises other than relative. 49 ALR Fed. 511.\n2. Searches and Seizures \u00a7 68 (NCI4th)\u2014 consent to search\u2014 knock and talk procedure\nA \u201cknock and talk\u201d procedure whereby officers approach a residence with the intent to obtain consent to conduct a warrant-less search and seize contraband when they lack the probable cause necessary to obtain a search warrant does not taint the consent or render the procedure per se violative of the Fourth Amendment.\nAm Jur 2d, Searches and Seizures \u00a7 92.\nAuthority to consent for another to search or seizure. 31 ALR2d 1078.\nAdmissibility of evidence discovered in search of defendant\u2019s property or premises authorized by one, other than relative, who is cotenant or common resident with defendant \u2014 state cases. 4 ALR4th 1050.\nAdmissibility of evidence discovered in warrantless search of property or premises authorized by one having ownership interest in property or premises other than relative. 49 ALR Fed. 511.\n3. Searches and Seizures \u00a7 60 (NCI4th)\u2014 consent to search\u2014 voluntariness \u2014 remand for findings\nDefendant\u2019s motion to suppress is remanded for reconsideration and further findings where the trial court failed to make a specific finding as to whether a resident of a house voluntarily consented to the search of a room she shared with defendant, and the appellate court is thus unable to determine as a matter of law whether defendant\u2019s Fourth Amendment rights were violated by a warrantless search of the room and the seizure of drugs found therein.\nAm Jur 2d, Searches and Seizures \u00a7 83.\nValidity, under Federal Constitution\u2019s Fourth Amendment, of search conducted pursuant to consent\u2014 Supreme Court cases. Ill L. Ed. 2d 850.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 and on appeal of a constitutional question pursuant to N.C.G.S. \u00a7 7A-30 of a unanimous, unpublished decision of the Court of Appeals, 123 N.C. App. 162, 472 S.E.2d 610 (1996), affirming the order granting defendant\u2019s motion to suppress entered by Rousseau, J., on 20 July 1995 in Superior Court, Forsyth County. Heard in the Supreme Court 15 May 1997.\nMichael F. Easley, Attorney General, by Jane R. Garvey, Assistant Attorney General, for the State-appellant.\nDaniel S. Johnson for defendant-appellee.\nWinston-Salem Police Department, by Mary Claire McNaught, on behalf of North Carolina Association of Police Attorneys, North Carolina Association of Chiefs of Police, and North Carolina Police Executives Association, amici curiae." }, "file_name": "0794-01", "first_page_order": 832, "last_page_order": 839 }