IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA20-40
Filed: 15 December 2020
Gaston County, Nos. 17 CRS 065590-91
STATE OF NORTH CAROLINA
v.
MICHAEL SHANE FALLS, Defendant.
Appeal by Defendant from judgments entered 20 May 2019 by Judge Daniel A.
Kuehnert in Gaston County Superior Court. Heard in the Court of Appeals 7 October
2020.
Attorney General Joshua H. Stein, by Assistant Attorney General J. Aldean Webster, III, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Hitchcock, for Defendant.
BROOK, Judge.
This case presents the following question: are three law enforcement officers
wearing dark clothing impliedly licensed to cut across a person’s front yard, swiftly
passing a no trespassing sign, and emerge from trees they were using for cover and
concealment in order to illuminate, surround, and stop that person’s departing car at
9:30 p.m. on a dark, cold mid-December evening? Or does this conduct instead
implicate the Fourth Amendment? Common sense tells us no Girl Scouts would STATE V. FALLS
Opinion of the Court
attempt such audacious efforts in peddling their cookies. Accordingly, we must
suppress the fruits of the officers’ unconstitutional search in this case.
I. Factual Background and Procedural History
At the suppression hearing, Gastonia Police Officer Clarence Belton testified
that he received an anonymous drug complaint that Michael Shane Falls
(“Defendant”) was selling and growing marijuana out of his home. Officer Belton also
received information that Defendant carried a silver revolver and determined that
Defendant was a convicted felon.
The next day, 16 December 2017, law enforcement decided to conduct a knock
and talk to “further investigate the complaint based on the details” they had received.
Around 9:30 p.m. on that “extremely cold” night, Officer Belton, along with Officers
J.C. Padgett and S.D. Hoyle, went to Defendant’s house to conduct their
investigation despite the fact that “[they] usually do the knock and talks . . . during
the daylight hours.”
The officers parked in a church parking lot next to Defendant’s house. They
then walked where “the road meets the [Defendant’s] property line[,]” or what they
later termed walking on the property’s right-of-way. Officer Belton then saw “a
white male get inside of a vehicle” and told Officers Padgett and Hoyle that he was
“possibly our suspect.”
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Wanting to make contact with him before he left, the officers made a beeline
for Defendant’s car. In so doing, they cut into Defendant’s front yard and “between
the tree[s] to go straight to the vehicle. [ ] [I]t g[a]ve [them] cover and concealment as
well, just in case there was an issue.” The officers “walked swiftly over to th[e]
vehicle,” passing a no trespassing sign that none of them appreciated in the moment.
The car was running and starting to reverse out of the driveway, and, as the officers
approached, they turned on their flashlights and shined them at Defendant’s vehicle.
Officers Belton and Padgett went to the driver side window while Officer Hoyle went
around to the passenger side. Officer Belton immediately noticed a silver
revolver lying in the passenger seat and within a few seconds also smelled “a pungent
odor of marijuana coming from the vehicle” on the driver side.
Officer Belton asked Defendant if he lived at the house and what his name was
before telling him they had received a drug complaint. He then asked Defendant to
step out of the vehicle and conducted a Terry frisk of Defendant for
weapons. According to Officer Belton, Defendant was “very belligerent . . . [and]
didn’t like the fact that we were there” and called someone on his cell phone; at that
point, Officer Belton put Defendant in handcuffs because he was not listening to
commands. Officer Padgett then recovered the gun from the vehicle and saw several
vials in the driver door, which he identified based on their odor and color as THC oil.
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Afterwards, Officers Belton and Padgett went to the front door of the residence
and knocked several times. Within a few minutes, Defendant’s fiancée, Summer Bolt,
came outside to speak with the officers. When she opened the door,
Officer Belton testified that he could smell the odor of marijuana coming out of the
residence. Ms. Bolt did not consent to a search of the residence, so Officer Padgett
applied for and received a search warrant. Once Officer Padgett returned with the
warrant, he read it to Defendant and Ms. Bolt, and then the officers executed the
warrant. Marijuana, paraphernalia, a pill that field-tested positive for
methamphetamine, and counterfeit $100 bills were found in the home.
Defendant was charged with possession of methamphetamine, possession of
counterfeit instruments, and possession of a firearm by a felon. Defendant moved to
suppress, and, during that hearing, Officer Padgett testified as follows regarding how
people might access Defendant’s front door:
The sidewalk would be what anybody that was going door- to-door selling anything would take, they would go down -- up the little sidewalk that jets off the driveway[.]
...
There was not a worn path in the grass [where we walked], or anything like that. I would think anybody, especially if you parked your vehicle on the roadway, you would go down the driveway. We did -- just because of the freedom of movement, and stuff, we’re not going [to] block the driveway. We don’t like parking our patrol cars on the road. So that’s why we took the path we did. If you were in a mail truck you would probably stop at the driveway
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and go down the sidewalk to the door. But that’s not the path that we took.
Officer Belton further testified that “due to the fact [of] it being dark, there’s no lights
right there, and us wearing dark clothing, we didn’t want to be struck by a vehicle
just doing a simple knock and talk.”
Judge Kuehnert denied the motion to suppress by written order on 6
November 2019. The trial court made the following pertinent findings of fact:
7. . . . [O]fficers decided to conduct a “knock and talk” at 2300 Davis Park Road to further investigate the information provided by the anonymous tipster.
8. At approximately 9:30 p.m. on December 16, Officers Belton, Padgett, Hoyle and Lewis arrived at 2300 Davis Park Road and parked in the adjacent church parking lot.
9. The officers walked along the highway right-of-way by the house on the grass portion of the highway as they walked up to the driveway.
10. The house could be approached by walking up the driveway, which was obvious, or through the yard, which was not obvious.
11. At the end of the driveway was a sidewalk that ran parallel to the house and up to the front door.
12. There was a “no trespassing” sign posted on a tree in front of the property.1
13. As [ ] [O]fficers Padgett and Belton approached the driveway along the grass right-of-way they noticed a white
1 This finding is unchallenged and thus binding on us on appeal; we also note that the record
reflects Defendant had an additional no trespassing sign in his front yard.
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male in a Honda Civic start to back up[ ] (this was indicated because the backup lights came on the vehicle).
14. The officers passed the front door of the house but did not go directly to the front door because there was no obvious path.
15. All of the officers involved then walked over towards the vehicle cutting through the yard approximately 10-20 feet.
16. Officer Belton arrived at the vehicle on the driver side and Officer Padgett was right behind. Officer Hoyle went to the passenger side of the vehicle.
17. As [Officer] Belton arrived he noticed the window was rolled down and began speaking to the individual.
18. The individual identified himself as Michael Shane Falls.
19. Almost immediately, Officers Belton and Padgett noticed an odor of marijuana emanating from the vehicle.
20. At the same time, Officer Hoyle, on the passenger side of the vehicle noticed a silver handgun in plain view on the passenger side of the vehicle.
24. [Defendant] advised that his fiancé[e], Summer Bolt, was in the residence.
25. [ ] [O]fficer Padgett walked up the driveway to the sidewalk that was perpendicular to the house and walked up to the front door.
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27. According to testimony from [O]fficers Padgett and Belton, approximately 2-3 minutes later, Ms. Bolt came to the door. Upon the door opening, Officer[s] Padgett and Belton noticed an odor of marijuana.
The trial court then made the following pertinent conclusions of law:
39. A knock and talk is valid so long as it is reasonable and does not violate the normal customs of an invitation and is not physically intrusive. (Jardines, at 1416).
41. In the present case, Officer’s [sic] Padgett, Belton and Hoyle testified that [ ] they approached the driveway of 2300 Davis Park Road along the right of way open to the public along the side of the road.
42. Officer Belton also testified that himself, Padgett and Hoyle passed the front of the front door by the house. However, there was to [sic] sidewalk or direct path to the door, so the officers continued to the driveway adjacent to the front door.
43. In walking along the right-of-way, the officers followed a path that a person visiting 2300 Davis Park Road would follow if that individual was going to knock on the front door of the house.
44. That [ ] when Officer Padgett saw a white male getting into a car and the br[ake] lights turn on, they immediately cut across the normal path into the curtilage of the yard at 2300 Davis Park Road. Officer Belton testified that he believed that [the] individual was the owner of the house and wanted to talk to him about the drug complaint.
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46. Even though the police officers briefly entered the curtilage of the property[,] it was for talking to the potential homeowner leaving in their car.
47. That the intrusion on the curtilage of the property was brief and minimal. Further, the officers did not use any special equipment or use any special force to enter the property. As a result, it was not an unreasonable intrusion and therefore did not violate the Fourth Amendment to the United States Constitution.
On 20 May 2019, Defendant pleaded guilty to all charges, reserving his right
to appeal the denial of the motion to suppress. Judge Kuehnert consolidated the
charges and sentenced Defendant to 17 to 30 months’ imprisonment, suspended upon
60 months’ supervised probation and a 90-day split sentence. Defendant timely
noticed appeal.
II. Analysis
On appeal, Defendant argues that the trial court erred in denying his motion
to suppress because the officers exceeded the scope of the implied license to conduct
a knock and talk and therefore were not lawfully present when they observed
contraband in his vehicle. Defendant also argues that the trial court sentenced him
incorrectly.
We agree with Defendant that the trial court erred in denying his motion to
suppress and therefore do not reach the issue of whether he was sentenced correctly.
A. Standard of Review
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Our review of a trial court’s denial of a motion to suppress “is strictly limited
to determining whether the trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge’s ultimate conclusions of
law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “In addition,
the trial court’s unchallenged findings of fact are binding on appeal.” State v.
Ramseur, 226 N.C. App. 363, 366, 739 S.E.2d 599, 602 (2013). “This Court reviews
conclusions of law stemming from the denial of a motion to suppress de novo. . . .
Under a de novo review, the court considers the matter anew and freely substitutes
its own judgment for that of the lower tribunal.” State v. Borders, 236 N.C. App. 149,
157, 762 S.E.2d 490, 498-99 (2014) (citation omitted).
B. Governing and Persuasive Authority
The Fourth Amendment to the United States Constitution and Article 1,
Section 20 of the North Carolina Constitution protect against unreasonable searches.
U.S. Const. amend. IV; N.C. Const. art. I, § 20. “[W]hen it comes to the Fourth
Amendment, the home is first among equals. At the Amendment’s very core stands
the right of a man to retreat into his own home and there be free from unreasonable
governmental intrusion.” Florida v. Jardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 1414,
185 L. Ed. 2d 495, 501 (2013) (internal marks and citation omitted). “While law
enforcement officers need not shield their eyes when passing by the home on public
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thoroughfares, an officer’s leave to gather information is sharply circumscribed when
he steps off those thoroughfares and enters the Fourth Amendment’s protected
areas.” Id. at 7, 133 S. Ct. at 1415 (internal citation and marks omitted). This
constitutional protection extends to the “curtilage,” which is “the area immediately
surrounding and associated with the home[.]” Id. at 6, 133 S. Ct. at 1414 (internal
citation and marks omitted).
“A knock and talk is a procedure by which police officers approach a residence
and knock on the door to question the occupant, often in an attempt to gain consent
to search when no probable cause exists to obtain a warrant.” State v. Marrero, 248
N.C. App. 787, 790, 789 S.E.2d 560, 564 (2016). While a knock and talk does not
implicate the Fourth Amendment, see Kentucky v. King, 563 U.S. 452, 469-70, 131 S.
Ct. 1849, 1862, 179 L. Ed. 2d 865, 880-81 (2011), it is, of course, a tactic employed “for
the purpose of gathering evidence[,]” Jardines, 569 U.S. at 21, 133 S. Ct. at 1423
(Alito, J., dissenting). But “[w]hen the Government obtains information by physically
intruding on persons, houses, papers, or effects, a search within the original meaning
of the Fourth Amendment has undoubtedly occurred.” Id. at 5, 133 S. Ct. at 1414
(internal marks omitted) (emphasis added) (quoting United States v. Jones, 565 U.S.
400, 406-07 n.3, 132 S. Ct. 945, 950-51 n.3, 181 L. Ed. 2d 911, 919 n.3 (2012)); see also
People v. Frederick, 500 Mich. 228, 235 n.2, 895 N.W.2d 541, 544 n.2 (2017) (“The
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violation of [the defendant’s] property rights, combined with the subsequent
information-gathering, constituted a search.”).
In Jardines, the Supreme Court utilized a property-rights framework to assess
whether the use of a drug-sniffing dog on a homeowner’s porch to investigate the
contents of the defendant’s home was a search within the meaning of the Fourth
Amendment. Holding first that the porch was “part of the home itself for Fourth
Amendment purposes[,]” the Court then turned to whether the officers’ investigation
“was accomplished through an unlicensed physical intrusion.” 569 U.S. at 6-7, 133
S. Ct. at 1414-15. Concluding that it was, the Court held that law enforcement may
not act outside the scope of the “implicit license [which] typically permits the visitor
to approach the home by the front path, knock promptly, wait briefly to be received,
and then (absent invitation to linger longer) leave.” Id. at 8, 133 S. Ct. at 1415.
Writing for the majority, Justice Scalia noted that “[c]omplying with the terms
of that traditional invitation does not require fine-grained legal knowledge; it is
generally managed without incident by the Nation’s Girl Scouts and trick-or-
treaters.” Id.
To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking
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out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.
Id. at 9, 133 S. Ct. at 1416. Justice Scalia emphasized that
[i]t is not the dog that is the problem, but the behavior that here involved use of the dog. We think a typical person would find it “a cause for great alarm” . . . to find a stranger snooping about his front porch with or without a dog.
Id. at 9 n.3, 133 S. Ct. at 1416 n.3 (internal citation omitted). Put simply, bloodhound
or not, law enforcement can do no more than the ordinary citizen would be expected
to do. Id. at 8, 133 S. Ct. at 1416 (“[A] police officer not armed with a warrant may
approach a home and knock, precisely because that is ‘no more than any private
citizen might do.’”) (emphasis added) (citation omitted).
Pursuant to the precedent established by the Supreme Court in Jardines, our
appellate courts have underlined “the right of police officers to conduct knock and
talk investigations, so long as they do not rise to the level of Fourth Amendment
searches.” Marrero, 248 N.C. App. at 790-91, 789 S.E.2d at 564. “This limitation is
necessary to prevent the knock and talk doctrine from swallowing the core Fourth
Amendment protection of a home’s curtilage.” State v. Huddy, 253 N.C. App. 148,
152, 799 S.E.2d 650, 654 (2017). We have emphasized that the implied license
“extends only to the entrance of the home that a ‘reasonably respectful citizen’
unfamiliar with the home would believe is the appropriate door at which to knock.”
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Id. (quoting Jardines, 569 U.S. at 8 n.2, 133 S. Ct. at 1415 n.2); see also id. at 155,
799 S.E.2d at 656 (Tyson, J., concurring) (“[E]ven a seldom-used front door is the door
uninvited members of the public are expected to use when they arrive.”). “Without
this limitation, law enforcement freely could wander around one’s home searching for
exterior doors and, in the process, search any area of a home’s curtilage without a
warrant.” Id. at 152, 799 S.E.2d at 654.
The scope of the implied license to conduct a knock and talk is governed by
societal expectations, and when law enforcement approach a home in a manner that
is not “customary, usual, reasonable, respectful, ordinary, typical, nonalarming,” they
are trespassing, and the Fourth Amendment is implicated. Jardines, 569 U.S. at 8
n.2, 133 S. Ct. at 1415 n.2. Relevant to distinguishing between a knock and talk and
a search is how law enforcement approach the home, the hour at which they did so,
and whether there were any indications that the occupant of the home welcomed
uninvited guests on his or her property.
First, law enforcement may not approach a home in a manner that “would not
have been reasonable for solicitors, hawkers[,] or peddlers.” State v. Stanley, 259
N.C. App. 708, 717, 817 S.E.2d 107, 113 (2018) (citation and marks omitted) (“Rather
than using the paved walkway that led directly to the unobstructed front door of the
apartment, the officers walked along a gravel driveway into the backyard in order to
knock on the back door, which was not visible from the street.”); see also Huddy, 253
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N.C. App. at 153, 799 S.E.2d at 655 (impermissible knock and talk where officer
walked around the entire residence to “clear” the sides of the home, checked the
windows for signs of a break-in, and then approached the home from the back door).
Similarly, law enforcement cannot “overstay[ ] their ‘knock and talk’ welcome on the
property.” State v. Ellis, 266 N.C. App. 115, 121, 829 S.E.2d 912, 916 (2019) (violation
of Fourth Amendment where detective received no response after knocking on front
door and second detective walked around to rear door and then to sides of the
defendant’s yard); see also State v. Gentile, 237 N.C. App. 304, 309-10, 766 S.E.2d 349,
353 (2014) (detectives engaged in “trespassory invasion of defendant’s curtilage”
where they knocked on front door, received no response, and then proceeded to back
of house where they smelled the odor of marijuana).
Relatedly, the hour at which officers conduct their knock and talk is relevant
to whether officers have exceeded the scope of the implied license. While this Court
has not held that knock and talks are impermissible during a certain time-window,
we have approvingly noted that “a number of courts have found late-night inquiries
unreasonable because of the societal expectation that members of the public would
not knock on one’s front door in the middle of the night.” State v. Hargett, 251 N.C.
App. 926, 795 S.E.2d 828, 2017 N.C. App. LEXIS 70, at *6 (2017) (unpublished). Even
the dissent in Jardines acknowledged that “as a general matter . . . a visitor [may
not] come to the front door in the middle of the night without an express invitation.”
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569 U.S. at 20, 133 S. Ct. at 1422 (Alito, J., dissenting). Noting agreement on this
point between the majority and dissenting opinions in Jardines, the Michigan
Supreme Court unanimously concluded “that a nighttime visit would be outside the
scope of the implied license (and thus a trespass).” Frederick, 500 Mich. at 238, 895
N.W.2d at 546. Accordingly, “as the Supreme Court suggested in Jardines, [ ] the
scope of the implied license to approach a house and knock is time-sensitive” and
assessed by reference to whether Girl Scouts would do so at the hour in question. Id.
Finally, we consider whether a resident has signaled that uninvited guests are
not welcome to approach his or her home. Even before Jardines, we noted that plainly
visible no trespassing signs are “evidence of the homeowner’s intent that the [area
protected by the sign is] not open to the public[,]” regardless of whether officers have
seen the sign or not. State v. Pasour, 223 N.C. App. 175, 179, 741 S.E.2d 323, 326
(2012). While a sign alone may not be “sufficient to revoke the implied license[,]” it
is one factor to be considered among others, such as the presence of a consistently
locked gate or fence and the homeowner or occupant’s conduct upon the officers’
arrival. State v. Smith, 246 N.C. App. 170, 178, 783 S.E.2d 504, 510 (2016). In Smith,
we held that the presence of a sign alone did not expressly revoke the implied license
where the defendant “emerged from his home and greeted the detectives and deputy”
and “engaged them in what the record reflects was a calm, civil discussion.” Id. at
179, 783 S.E.2d at 510; see also Huddy, 253 N.C. App. at 151, 799 S.E.2d at 654
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(“[O]fficers are permitted to approach the front door of a home, knock, and engage in
consensual conversation with the occupants.”) (emphasis added). We also noted that
the defendant had inconsistently displayed a no trespassing sign and the gate to his
driveway was open on the date the officers arrived, all of which “did not reflect a clear
demonstration of an intent to revoke the implied license to approach.” Smith, 246
N.C. App. at 179, 783 S.E.2d at 510 (internal marks omitted).
This guidance is pertinent here because “an officer must have a lawful right of
access to any contraband he discovers in plain view in order to seize it without a
warrant” and thus “[a] plain-view seizure [ ] cannot be justified if it is effectuated by
unlawful trespass.” Collins v. Virginia, ___ U.S. ___, ___, 138 S. Ct. 1663, 1672, 201
L. Ed. 2d 9, 21 (2018) (citation omitted). If law enforcement goes beyond the bounds
of a knock and talk and, in so doing, sees or smells contraband, then, absent an
applicable exception to the warrant requirement, they do not have the right to seize
that evidence. Id. Accordingly, evidence seized pursuant to a knock and talk that
has strayed into a search must be suppressed as fruit of the poisonous tree. See
Stanley, 259 N.C. App. at 718, 817 S.E.2d at 114.
C. Application to the Instant Case
Since the scope of the implied license is governed by “background social norms,”
a knock and talk does not implicate the Fourth Amendment so long as officers behave
as a Girl Scout or trick-or-treater would. The officers here decidedly did not.
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The trial court found and Defendant challenges on appeal the following
findings of fact:
10. The house could be approached by walking up the driveway, which was obvious, or through the yard, which was not obvious.
14. The officers passed the front door of the house but did not go directly to the front door because there was no obvious path.
Defendant also challenges the following conclusion of law:2
43. In walking along the right-of-way, the officers followed a path that a person visiting 2300 Davis Park Road would follow if that individual was going to knock on the front door of the house.
Turning to the evidence presented at the suppression hearing, Officer Padgett
testified explicitly as to the path that the ordinary person would take and the reasons
why he and Officers Belton and Hoyle did not take that path:
The sidewalk would be what anybody that was going door- to-door selling anything would take, they would go down -- up the little sidewalk that juts off the driveway[.]
There was not a worn path in the grass [where we walked], or anything like that. I would think anybody, especially if you parked your vehicle on the roadway, you would go down the driveway. We did -- just because of the
2 Though labeled a conclusion of law, this is more properly classified as a finding of fact because
it is a determination reached through “logical reasoning from evidentiary facts.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657-58 (1982).
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freedom of movement, and stuff, we’re not going up block the driveway. We don’t like parking our patrol cars on the road. So that’s why we took the path we did. If you were in a mail truck you would probably stop at the driveway and go down the sidewalk to the door. But that’s not the path that we took. (Emphasis added.)
And Officer Belton testified that they took a different path because “of vehicles
coming by, and the fact that the night being dark and us wearing dark clothing.” He
also testified that they “went straight to the driveway” because he saw “a white male
getting inside a vehicle, possibly [the] suspect.” To get to the driveway, the officers
“cut between the tree to go straight to the vehicle. [ ] [I]t g[a]ve us cover and
concealment as well, just in case there was an issue.” There was no testimony to the
contrary on any of these points.
While the above testimony is competent evidence in support of finding of fact
10 as persons could approach the house through its yard, it offers no support for
finding of fact 14 or conclusion of law 43. The testimony from the suppression hearing
conclusively established that the officers did not follow the path that “a person
visiting 2300 Davis Park Road would follow if that individual was going to knock on
the front door of the house.” (Emphasis added.) Instead of “stop[ping] at the driveway
and go[ing] down the sidewalk to the door”—like “anybody” would do—the officers
took a path that offered them “cover[,] [ ] concealment[,]” and safety since they were
out at night in dark clothing. And Officer Belton specifically testified that they did
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not go to the front door because they saw Defendant getting into his car—not because
there was no “obvious path” to the front door.
The unbidden deviations from the ordinary path that the officers took here for
the purposes of obtaining information are of the type that our Court has held time
and time again violate the Fourth Amendment. See, e.g., Stanley, 259 N.C. App. at
717, 817 S.E.2d at 113 (unlawful knock and talk where officers ignored paved
walkway to front door and walked along gravel driveway to back door); see also
Huddy, 253 N.C. App. at 149, 799 S.E.2d at 652 (same where officers walked around
the entire residence before proceeding to back of house to knock). But this case
presents far more than a 10- to 20-foot intrusion into Defendant’s front yard.
First, the manner in which the officers approached the home here, including
but not limited to the physical intrusion, was contrary to that of the “reasonably
respectful citizen.” Instead of parking in Defendant’s driveway, they parked in a lot
beside Defendant’s home. Clad in dark clothing, the three officers walked along
Defendant’s property line. Then, when they saw Defendant enter his car, they briskly
crossed onto his property, cutting through trees because it gave them “cover and
concealment[,]” shining flashlights at and surrounding his moving vehicle. While the
State granted at oral argument such behavior would mark Girl Scouts as “ambitious,”
this conduct, as Justice Scalia put it, “would inspire most of us to—well, call the
police[,]” Jardines, 569 U.S. at 9, 133 S. Ct. at 1416, if not resort to self-defense.
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Relatedly, the officers here also conducted their “knock and talk” at 9:30 p.m.
on a cold, mid-December night. Ordinary citizens are not generally expected so late
at night. In fact, this was out of the ordinary even for these officers, who testified
that their usual practice was to conduct knock and talks during the daylight hours.
The atypical, potentially alarming time of this investigation is difficult to square with
the implied license discussion in Jardines. Id. at 8 n.2, 133 S. Ct. at 1415 n.2.3
Not only was the manner and time contrary to that of the “reasonably
respectful citizen,” there also was a plainly visible no trespassing sign in Defendant’s
yard, evincing an intent to signal that the front yard was not open to the public.
Jardines, 569 U.S. at 8 n.2, 133 S. Ct. at 1415 n.2; see also Pasour, 223 N.C. App. at
179, 741 S.E.2d at 326. Whereas in Smith, the defendant engaged officers in a “calm,
3 When questioned about the late hour at oral argument, the State noted that the survivor of
a car accident might knock on a homeowner’s front door at any time to seek help. This is undoubtedly so. But, instead of bolstering the State’s argument, it underlines its fundamental weakness. The test here turns on social norms in routine circumstances—again, how a Girl Scout, trick- or-treater, or “reasonably respectful citizen unfamiliar with the house” would behave—not how someone responds to a potentially life-threatening emergency. Jardines, 569 U.S. at 8 n.2, 133 S. Ct. at 1415 n.2; see, e.g., Frederick, 500 Mich. at 240, 895 N.W.2d at 547 (“[T]he fact that a visitor may approach a home in an emergency does not mean that a visitor who is not in an emergency may approach. Emergencies justify conduct that would otherwise be unacceptable; they are exceptions to the rule, not the rule.”). Like those individuals, and unlike the survivor of a car accident, law enforcement has control over when it conducts a knock and talk. It stands to reason these officers generally performed knock-and-talks during the day because late-night efforts are more likely to cause alarm—a consideration in whether someone has an implicit license to approach a person’s front door. See Jardines, 569 U.S. at 8 n.2, 133 S. Ct. at 1415 n.2; see also id. at 20, 133 S. Ct. at 1422 (Alito, J., dissenting). Returning to the State’s car accident example, one need not look far into North Carolina’s past to find such a late-night knock on a front door stemming from those exigent circumstances leading a homeowner to “call the police[,]” id. at 9, 133 S. Ct. at 1416, with tragic consequences, see Michael Gordon, Jonathan Ferrell was just starting his life in Charlotte, The Charlotte Observer (19 July 2015), https://www.charlotteobserver.com/news/local/crime/article27558442.html.
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civil discussion” inconsistent with “an intent to revoke the implied license to
approach[,]” 246 N.C. App. at 179, 783 S.E.2d at 510, Defendant’s conduct here
underlined the intent demonstrated by his no trespassing sign. Namely, he
questioned the officers’ presence on his property and was so “belligerent” in so doing
that he was handcuffed. Though Defendant did not have a fence surrounding his
property, Smith emphasized that it is not the presence of a gate or fence that indicates
that a person’s property is off-limits to the public, it is the consistent presence of a
sign or the consistent locking of a gate that evinces this intent.4 Here, Defendant’s
own conduct plus the lack of any findings or evidence that Defendant did not
consistently display a no trespassing sign demonstrated, at the very least, that his
yard was not open to the public.
While there may be circumstances where cutting across a person’s yard does
not exceed the scope of the implied license, see State v. Grice, 367 N.C. 753, 754, 767
S.E.2d 312, 314 (2015) (entering curtilage to approach defendant’s side door
4 At oral argument, the State suggested the outcome might differ if the officers had seen the
no trespassing sign, crossed over a moat filled with alligators, and scaled a fence that surrounded Defendant’s property. The dissent similarly argues that Defendant did not revoke the implied license to approach his front door because, in part, he “did not have a fence surrounding his property[.]” Falls, infra at ___ (Berger, J., dissenting). We need only note in response that the protections of the Fourth Amendment extend to us all regardless of our ability to invest in physical barriers and reptiles. See United States v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 2171, 72 L. Ed. 2d 572, 592 (1982) (“[T]he most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion[.]”).
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appropriate where front door obscured and inaccessible),5 and while knocking on
Defendant’s door at 9:30 p.m. is arguably, as the State contends, just “ambitious” as
opposed to plainly beyond the pale, see Hargett, 2017 N.C. App. LEXIS 70, at *6-7,
and while the presence of a no trespassing sign, by itself, might not expressly revoke
the implied license, see Smith, 246 N.C. App. at 178, 783 S.E.2d at 510, the
“reasonably respectful citizen” would have taken each of these facts into account in
determining whether “background social norms” licensed him or her to quickly
emerge from trees in a stranger’s yard at night with two of his or her colleagues in
order to illuminate, surround, and stop a moving car, Jardines, 569 U.S. at 8-9 n.2,
133 S. Ct. at 1415-16 n.2. Taken together, the officers’ conduct went far beyond the
“implied license” that “typically permits the visitor to approach the home by the front
path, knock promptly, wait briefly to be received, and then (absent invitation to linger
longer) leave.” Id. at 8, 133 S. Ct. at 1415.6
5 Defendant notes both that “[t]he continuing validity of Grice’s ultimate holding is questionable following the United States Supreme Court’s later decision in Collins[,]” and that it is not necessary for us to weigh in on this issue because of the distinguishing features of the current controversy. We agree on both counts. 6 The dissent primarily relies on pre-Jardines and/or pre-Collins, non-binding case law in
arguing that this was a knock and talk instead of a search, most notably United States v. Walker, 799 F.3d 1361 (11th Cir. 2015). Of course, Walker is at most persuasive authority to this Court, State v. Woods, 136 N.C. App. 386, 390, 524 S.E.2d 363, 365 (2000) (“[W]ith the exception of the United States Supreme Court, federal appellate decisions are not binding upon either the appellate or trial courts of this State.”), and, as with Grice, there are serious questions as to whether Walker’s holding survives Collins, ___ U.S. at ___, 138 S. Ct. at 1672 (“[S]earching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage.”). Regardless of Walker’s dubious legal force, it is also factually distinguishable for several material reasons. First, law enforcement in Walker approached the defendant’s “main door” via a
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The officers here strayed beyond the bounds of a knock and talk; therefore, the
seizure of evidence based on their trespassory invasion cannot be justified under the
plain view doctrine. Collins, ___ U.S. at ___, 138 S. Ct. at 1672 (“[A]n officer must
have a lawful right of access to any contraband he discovers in plain view in order to
seize it without a warrant[.]”). Officers Padgett, Belton, and Hoyle did not have a
right to be where they were when they saw the revolver and when they smelled
marijuana in Defendant’s car. Thus, the trial court erred in denying Defendant’s
motion to suppress.
IV. Conclusion
We “are not required to exhibit a naivete from which ordinary citizens are free.”
United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977). It takes no fine-
grained legal knowledge to appreciate that a Girl Scout troop, a trio of teenage
pranksters down the block, or perhaps more sinister characters are not impliedly
licensed to emerge from trees that they were using for cover and concealment and cut
across a person’s yard, swiftly passing a no trespassing sign, to illuminate, surround,
and stop that person’s departing car on a dark, mid-December evening. It only
requires common sense.
gravel driveway leading to it—starting on the path the Girl Scouts would take. 799 F.3d at 1362. Law enforcement also did not take steps to conceal their appearance or approach from the defendant as they did in the present case. Id. Furthermore, there was no evidence that the defendant displayed a visible no trespassing sign on his property. Id. Finally, the defendant was sleeping inside of his stationary vehicle, which was turned off—not reversing out of his driveway—when approached by law enforcement. Id.
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Because law enforcement can do no more than a private citizen in this context,
the conduct in question implicated the Fourth Amendment. And because the officers
lacked a warrant supported by probable cause and no other exception to the Fourth
Amendment’s warrant requirement applied in this case, we conclude that the
evidence in question was illegally obtained. Accordingly, we reverse the trial court’s
denial of the motion to suppress.
REVERSED.
Judge ZACHARY concurs.
Judge BERGER dissents by separate opinion.
- 24 - No. COA20-40 – State v. Falls
BERGER, Judge, dissenting in separate opinion.
Because the officers did not exceed the scope of their implied license, I
respectfully dissent.
Our review of a trial court’s denial of a motion to suppress “is strictly limited
to determining whether the trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge’s ultimate conclusions of
law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court’s
conclusions of law . . . are fully reviewable on appeal.” State v. Reaves-Smith, ___
N.C. App. ___, ___, 844 S.E.2d 19, 22 (2020) (citation and quotation marks omitted).
“Unchallenged findings of fact, where no exceptions have been taken, are presumed
to be supported by competent evidence and binding on appeal.” State v. McLeod, 197
N.C. App. 707, 711, 682 S.E.2d 396, 398 (2009) (purgandum).
On appeal, Defendant contends that the trial court erred when it denied his
motion to suppress because the officers (1) exceeded the scope of their implied license
to conduct a knock and talk by cutting across “approximately 10-20 feet” of his front
yard to approach his vehicle; and (2) were not lawfully present when they observed
the contraband in plain view in his vehicle. In support of this argument, Defendant
specifically challenges findings of fact 10 and 14, which state:
10. The house could be approached by walking up the driveway, which was obvious, or through the yard, which was not obvious. STATE V. FALLS
BERGER, J., dissenting
14. The officers passed the front door of the house but did not go directly to the front door because there was no obvious path.
In addition, Defendant challenges conclusions of law 42, 43, and 47, which are
set forth below:
42. Officer Belton also testified that himself, Padgett, and Hoyle passed the front of the front door by the house. However, there was no sidewalk or direct path to the door, so the officers continued to the driveway.
43. In walking along the right-of-way, the officers followed a path that a person visiting 2300 Davis Park Road would follow if that individual was going to knock on the front door of the house.
47. That the intrusion on the curtilage of the property was brief and minimal. Further, the officers did not use any special equipment or use any special force to enter the property. As a result, it was not an unreasonable intrusion and therefore did not violate the Fourth Amendment of the United States Constitution.
Although conclusions of law 42 and 43 are mixed findings of fact and
conclusions of law, “we do not base our review of findings of fact and conclusions of
law on the label in the order, but rather, on the substance of the finding or
conclusion.” Reaves-Smith, ___ N.C. App. at ___, 844 S.E.2d at 24 (citation and
quotation marks omitted). We review these conclusions to determine whether they
are supported by competent evidence. Id. at ____, 844 S.E.2d at 22.
Because Defendant challenges no other findings of fact, all remaining findings
are presumed to be supported by competent evidence and are binding on appeal. See
McLeod, 197 N.C. App. at 711, 682 S.E.2d at 398 (“Unchallenged findings of fact . . .
are presumed to be supported by competent evidence and binding on appeal” (citation
and quotation marks omitted)).
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. “The touchstone of the Fourth Amendment is
reasonableness.” State v. Grice, 367 N.C. 753, 756, 767 S.E.2d 312, 315 (2015)
(citation and quotation marks omitted).
“Because an individual ordinarily possesses the highest expectation of privacy
within the curtilage of his home, that area typically is afforded the most stringent
Fourth Amendment protection.” State v. Smith, 246 N.C. App. 170, 180, 783 S.E.2d
504, 511 (2016) (citation and quotation marks omitted). “[C]urtilage . . . is the area
immediately surrounding and associated with the home. . . [and] law enforcement
ordinarily cannot enter the curtilage of one’s home without either a warrant or
probable cause and the presence of exigent circumstances that justify the warrantless
intrusion.” State v. Huddy, 253 N.C. App. 148, 151, 799 S.E.2d 650, 654 (2017)
“A knock and talk is a procedure by which police officers approach a residence
and knock on the door to question the occupant, often in an attempt to gain consent
to search when no probable cause exists to obtain a warrant.” State v. Stanley, 259
N.C. App. 708, 714, 817 S.E.2d 107, 112 (2018) (citations and quotation marks
omitted). Accordingly, “law enforcement [is not] absolutely prohibited from crossing
the curtilage and approaching the home, based on our society’s recognition that the
knocker on the front door is treated as an invitation or license to attempt an entry,
justifying ingress to the home by solicitors, hawkers, and peddlers[.]” Grice, 367 N.C.
at 759-60, 767 S.E.2d at 318. “[W]hen officers enter private property for the purpose
of a general inquiry or interview, their presence is proper and lawful[.]” State v.
Church, 110 N.C. App. 569, 573-74, 430 S.E.2d 462, 465 (1993) (citation omitted).
Defendant argues that the officers exceeded their implied license by cutting
across “approximately 10-20” feet of his front yard because such conduct would not
have been reasonable for an uninvited guest. At the suppression hearing, Officer
Belton testified that there was no path directly to the front door from the road and
that to approach the front door you would have to “[e]ither come up behind the tree,
or beside the tree, and go straight to it, or the path that we took to go down the
driveway.” Further, Officer Belton testified that the driveway was the only paved
path to get to the front door. This testimony supports findings of fact 10, 14, and 43,
namely that the officers had to walk past the front door to get to the driveway and
that the obvious path to the house was down the driveway and through the sidewalk.
Therefore, these findings are supported by competent evidence.
Defendant also challenges conclusion of law 43, which again, is a mixed finding
of fact. However, at the hearing, Officer Belton testified that “[w]hen we arrived at
the residence we walked pretty much where the road meets the property line . . .
[t]here’s no sidewalk, so we pretty much had to [walk] on the street but a little off on
the road . . . just because of vehicles coming by, and the fact that the night being
dark[.]” This testimony supports that a reasonable person approaching the house
would have to walk along the right of way to approach the driveway because there is
no sidewalk. Therefore, this finding is supported by competent evidence.
Next, we must determine whether the trial court’s findings of fact support
conclusion of law 47 that officers cutting across “approximately 10-20 feet” of
Defendant’s yard was not an “unreasonable intrusion and therefore did not violate
the Fourth Amendment of the United States Constitution.”
Conduct that would be unreasonable for “solicitors, hawkers or peddlers . . . is
also unreasonable for law enforcement officers.” Stanley, 259 N.C. App. at 717, 817
S.E.2d at 113 (purgandum). “Law enforcement may not use a knock and talk as a
pretext to search the home’s curtilage [because] no one is impliedly invited to enter
the protected premises of the home in order to do nothing but conduct a search.”
Huddy, 253 N.C. App. at 152, 799 S.E.2d at 654 (purgandum). In fact, our courts
have repeatedly held that an officer exceeds the scope of their implied license when
they approach a home from the backyard, or snoop around the property to investigate
the home. See id. at 149, 799 S.E.2d at 655 (finding that the officer exceeded the
scope of implied license where officer ran a license plate on a car not visible from the
street, checked windows for signs of a break-in, and walked around the entire
residence to clear the sides of the home); see also Stanley, 259 N.C. App. at 717, 817
S.E.2d at 113 (determining that the officers exceeded the scope of implied license
where they walked along a gravel driveway to the back door instead of using a paved
walkway to the front door).
Here, after seeing a white male matching Defendant’s description get into a
vehicle, officers cut through “approximately 10-20 feet” of Defendant’s front yard to
approach the vehicle and to see if Defendant would speak with them – a valid purpose
of a knock and talk. See Church, 110 N.C. App. at 573-74, 430 S.E.2d at 465 (finding
that “when officers enter private property for the purpose of a general inquiry or
interview, their presence is proper and lawful.”); see also United States v. Raines, 243
F.3d 419, 421 (8th Cir. 2001) (“We have previously recognized that law enforcement
officers must sometimes move away from the front door when attempting to contact
the occupants of a residence.”); see also United States v. Taylor, 458 F.3d 1201, 1205
(11th Cir. 2006) (“Such a minor departure from the front door [when officers
proceeded to the curtilage of the defendant’s property after defendant yelled ‘Don’t
shoot my dog!’] does not remove the initial entry from the “knock and talk” exception
to the warrant requirement.”). In fact, a driveway is an access route to the front door
where officers are allowed to approach to conduct a “knock and talk.” Smith, 246 N.C.
App. at 181, 783 S.E.2d at 511. Accordingly, the officers did not exceed the scope of
their implied license by cutting across “approximately 10-20 feet” of Defendant’s front
yard to approach the driveway.
Defendant also argues that the “No Trespassing” sign on a tree in his front
yard expressly removed the officers’ implied license to approach his home. However,
a “No Trespassing” sign, alone, is not “sufficient to revoke the implied license to
approach.” Id. at 178, 783 S.E.2d at 510; see, e.g., United States v. Bearden, 780 F.3d
887, 893-94 (8th Cir. 2015) (upholding “knock and talk” where officers entered
property through an open driveway gate marked with “No Trespassing” signs).
Rather, the homeowner must clearly demonstrate, through either a physical
obstruction or verbal instructions, their intention to revoke the implied license. See
Smith, 246 N.C. App. at 178, 783 S.E.2d at 510. Here, Defendant had only one “No
Trespassing” sign, did not have a fence surrounding his property, and did not express
his intention to revoke the implied license to approach until after the officers noticed
the contraband in plain view. Therefore, Defendant did not effectively revoke the
officers’ implied license to approach.
Finally, Defendant contends under Florida v. Jardines, 569 U.S. 1 (2013) that
the officers conducted an investigatory search when they approached his vehicle and
exceeded the scope of their implied license by approaching his vehicle at 9:30 at night.
However, Jardines is distinguishable. Here, the officers did not approach
Defendant’s car with the purpose of discovering incriminating evidence, nor did the
officers approach with a forensic narcotics dog. See Jardines, 569 U.S. at 9-10
(holding that using a police dog to sniff for drugs on the front porch in hopes of
discovering incriminating evidence exceeds the scope of the knock and talk
exception). Rather, the officers approached Defendant’s property with the intent to
speak with him after receiving an anonymous tip, which led to a “knock and talk.”
Id. at 8 (“[A] police officer not armed with a warrant may approach a home and knock,
precisely because that is ‘no more than any private citizen might do.’ ” (citation
omitted)).
This case is similar to United States v. Walker, 799 F.3d 1361 (11th Cir. 2015).
In Walker, officers went to the defendant’s residence at 5:04 a.m. to conduct a knock
and talk to see if a man with an outstanding warrant was inside his house. Id. at
1362. Rather than first going to the front door, officers approached the defendant in
his carport. The Eleventh Circuit held that the officers “small departure from the
front door [to go to the carport] when seeking to contact the occupants [was]
permissible[,]” and that the officers did not conduct an investigatory search when
they approached the vehicle because “the officers’ behavior did not objectively reveal
a purpose to search[.]” Id. at 1363-64. Further, the Eleventh Circuit held that going
to someone’s house before sunrise was not unreasonable because “although many
people might normally be asleep at that early hour, the light on in the car indicated
otherwise.” Id. at 1364.
Here, as in Walker, the officers did not approach to conduct a search; rather,
their main purpose was to follow up on the anonymous tip. Additionally, it was a
small departure when the officers cut across “10-20” feet of Defendant’s grass to then
approach Defendant, who was outside of his house in a running car at 9:30 p.m. Thus,
the officers’ actions in approaching Defendant were permissible and not unreasonable
under the Fourth Amendment.
Accordingly, the officers did not exceed the scope of their implied license, they
were lawfully present when they arrived at Defendant’s vehicle, and the subsequent
searches were valid under the Fourth Amendment.
-9-