State v. Tarantino

368 S.E.2d 588, 322 N.C. 386, 1988 N.C. LEXIS 373
CourtSupreme Court of North Carolina
DecidedJune 2, 1988
Docket30PA87
StatusPublished
Cited by15 cases

This text of 368 S.E.2d 588 (State v. Tarantino) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tarantino, 368 S.E.2d 588, 322 N.C. 386, 1988 N.C. LEXIS 373 (N.C. 1988).

Opinions

EXUM, Chief Justice.

The sole issue this case presents is whether, in light of the United States Supreme Court’s decision in Dunn v. United States, 480 U.S. —, 94 L.Ed. 2d 326 (1987), the Court of Appeals correctly upheld the trial court’s decision to grant defendant’s motion to suppress evidence seized from his building because the information furnishing probable cause for the search warrant was obtained in violation of the Fourth Amendment of the United States Constitution. We answer yes, and affirm the Court of Appeals.

I.

On 10 April 1986 Judge Gray conducted a hearing on defendant’s motion to suppress evidence seized from a building he owned. After the hearing, he made findings of fact to which neither the state nor defendant except. He found that on 30 August 1985 B. R. Baker, Jr., a detective in the Avery County Sheriffs Department, received a telephone call from a confidential informant who said he had seen marijuana plants growing on the second floor of the old “Aldridge Store Building.” The caller informed Detective Baker that the plants could be observed by looking through cracks in the building’s back wall. Detective Baker concluded he lacked probable cause to obtain a search warrant because he knew the caller to be unreliable. At approximately 11 p.m. he went to the building, without a warrant, to investigate the caller’s claims.

The building which Detective Baker investigated was a two-story frame structure built into a hillside. It was in poor repair when he made his inspection. The windows were boarded from the inside, the solid-wood front door was padlocked, and the back doors — one solid and the other with a paneless window covered by wood — were nailed shut. The back doors opened directly to the building’s second floor from a porch which had a large open entrance. At the bottom of the wall between the porch doors were several cracks where the wooden boards did not join com[388]*388pletely. These cracks were no more than one-quarter of an inch wide.

Detective Baker began his investigation by knocking on the front door. He then climbed the hill to the second-story porch, using a flashlight to guide his way along a little-used path. He entered the porch and knocked on one of the doors inside. Receiving no answer, he searched the back wall until he found cracks in the wall between the doors. By maneuvering his body and shining his flashlight through the cracks, Detective Baker illuminated a small part of the building’s interior and saw marijuana plants. He returned to the Avery County Sheriffs Department, executed an affidavit, obtained a search warrant from a magistrate, returned to the premises and seized the marijuana.

After making these findings, Judge Gray concluded, as a matter of law, that Detective Baker’s first inspection of the building constituted a warrantless search in violation of the Fourth Amendment. He determined defendant had a reasonable expectation of privacy in the premises searched. He further adjudged that the search fell within no exception to the Fourth Amendment’s requirement of a valid warrant. On the basis of his factual findings and legal conclusions, Judge Gray granted defendant’s motion to suppress.

The Court of Appeals affirmed Judge Gray’s decision. State v. Tarantino, 83 N.C. App. 473, 350 S.E. 2d 864 (1986). Subsequently, the United States Supreme Court decided United States v. Dunn, 480 U.S. —, 94 L.Ed. 2d 326. The state petitioned for discretionary review in light of the Dunn decision. We granted the state’s petition and remanded the case to the Court of Appeals for further consideration in light of Dunn. The Court of Appeals reaffirmed its previous decision, holding that the facts in the present case and those in Dunn are sufficiently distinguishable such that Dunn's holding does not require a different result. State v. Tarantino, 86 N.C. App. at 442, 358 S.E. 2d at 132.

II.

In Dunn the United States Supreme Court held that Drug Administration Enforcement agents did not violate the Fourth Amendment when they peered into the “essentially open front” of the defendant’s barn and saw what they thought to be a drug lab[389]*389oratory. United States v. Dunn, 480 U.S. at —, 94 L.Ed. 2d at 334. The agents made their observations at night after crossing several fences encircling the barn, which was located about 60 yards from the defendant’s ranch house residence. A locked wooden fence with a waist-high gate barred the agents from entering the barn. The barn’s front section was open, covered only by netting material stretching from the barn’s ceiling to the gate’s top. By standing next to the netting and shining flashlights inside the barn, the agents acquired sufficient information to obtain a search warrant. Pursuant to the warrant, the agents seized chemicals and equipment and arrested the defendant. Id. at —, 94 L.Ed. 2d at 332-34.

The primary issue confronting the Court in Dunn, as the Court of Appeals noted in its opinion below, was whether the agents’ search violated the defendant’s Fourth Amendment rights because the barn lay within the curtilage of his home. The Court held the barn did not lie within the house’s curtilage, applying a four-part test drawn from prior cases. Id. at —, 94 L.Ed. 2d at 334. However one might view the Court’s determination of the curtilage question in Dunn, it has no bearing in the instant case, for no curtilage question is here presented.

The second issue addressed in Dunn was whether the defendant possessed a reasonable expectation of privacy, independent from his home’s curtilage, in the barn and its contents. The Court assumed, for argument’s sake, that the barn itself could not be entered or its contents seized without a warrant, but went on to hold that the officers properly peered into its interior over the front gate. It reasoned, on the basis of its resolution of the curtilage question, that the officers lawfully approached and stood next to the barn because the land surrounding it was a constitutionally unprotected “open field.” From this vantage point the officers rightfully used flashlights to peer through the netting material covering the barn’s opening. The Court held “the officers’ use of the beam of a flashlight, directed through the essentially open front of [the defendant’s] barn, did not transform their observations into an unreasonable search within the meaning of the Fourth Amendment.” United States v. Dunn, 480 U.S. at —, 94 L.Ed. 2d at 337. In so holding the Court drew support from its recent decision in California v. Ciraolo in which it stated “the Fourth Amendment ‘has never been extended to require law en[390]*390forcement officers to shield their eyes when passing by a home on a public thoroughfare’.” Id. at —, 94 L.Ed. 2d at 337 (quoting California v. Ciraolo, 476 U.S. 207, 213, 90 L.Ed. 2d 210, 216 (1986)).

The Dunn decision, as the Court of Appeals correctly noted, does not alter the rule that the Fourth Amendment applies if a person exhibits a subjective expectation of privacy in the object of the challenged search, and that expectation is one which society is prepared to recognize as reasonable. O'Conner v. Ortega, 480 U.S. —, —, 90 L.Ed. 2d 714, 722 (1987); California v. Ciraolo, 476 U.S. at 211, 90 L.Ed. 2d at 215; Smith v. Maryland,

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State v. Tarantino
368 S.E.2d 588 (Supreme Court of North Carolina, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
368 S.E.2d 588, 322 N.C. 386, 1988 N.C. LEXIS 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tarantino-nc-1988.