The Constitution had a pretty good day at the North Carolina Court of Appeals yesterday. Out of ten criminal decisions issued, four convictions were reversed; two for insufficient evidence, one for a jury instruction that was not supported by evidence during the trial, and one for an unlawful search. Notably, two of the cases involved the issue of "constructive possession", commonly used by the government to get around the pesky little issue of charging someone with a crime when they didn't actually possess contraband but were found near it. Actual and constructive possession were defined neatly in State v. Billinger (context of illegal possession of a firearm):
A person has actual possession of a firearm if it is on his person, he is aware of its presence, and either by himself or together with others he has the power and intent to control its disposition or use. In contrast, a person has constructive possession of a firearm when, although not having actual possession, the person has the intent and capability to maintain control and dominion over the firearm.
In State v. Battle, issued yesterday, police were searching for an ex-con in the woods, and found an assault-style rifle. They later found the defendant, roughly 75-100 yards away. Mr. Battle was convicted of possessing the weapon, but the Court of Appeals reversed the conviction, because there was no evidence that the defendant actually or constructively possessed it, aside from a canine tracking a scent that involved the gun, and eventually, the defendant. In between the two, the k-9 also led the posse to another individual in the same woods. Even viewed "in the light most favorable to the state" (the standard of review for a sufficiency of evidence challenge to a conviction after trial) the Court ruled that "the evidence raises only a 'suspicion or conjecture' that Defendant possessed the rifle. It is important to note that the Defendant's trial attorney did preserve the sufficiency issue below by moving to dismiss at the close of the prosecution's case.
Expectation of Privacy in the Curtilage of One's Home
Another interesting defense win yesterday involved a court finding of a 4th Amendment violation in the area directly around a house. In State v. Huddy, a deputy drove up a 150 yard driveway to investigate a vehicle left with its doors open. He testified that he suspected that, based upon the state of the vehicle, the house might be the scene of a home invasion robbery... After inspecting the car, he went to the front door, and noted it had cob-webs and did not appear to be used. He checked to see if it was locked, but did not knock. He then checked the side windows of the house, "cleared" the sides of the house, proceeded through a gate in a chain-link fence to the backyard, went to the storm-door at the back of the house, in the vicinity of which he smelled marijuana (cannabis). He did all of this without first obtaining a search warrant.
Again, it is important to note that the search warrant issue regarding the deputy's presence on the curtilage of the property was preserved at the trial level. If a motion to suppress is not made pre-trial, and then preserved during the trial by renewing the objection prior to presentation of the evidence a defendant wants to suppress, the issue may be deemed waived.
The Court rejected the government's arguments invoking the "knock and talk" and "community caretaker" exceptions to the general search warrant requirement, noting that the deputy did more than knock on the front door as allowed under the former, and that a vehicle with open doors is "not the sort of emergency that justifies the community caretaker exception." The analysis portion of the decision begins with a recitation of the 4th Amendment warrant requirement in the context of a home:
“[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, 133 This protection extends not only to the interior of one's home, but also to the “curtilage,” which is “the area immediately surrounding and associated with the home.” Id. As a result, 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. Id.
The court noted that there were plenty of lawful alternatives that would have achieved the deputy's stated objective of investigating the possibility of a home-invasion robbery, rejected the state's arguments regarding exceptions to the warrant requirement, and ruled that the trial court erred in denying the defendant's motion to suppress the marijuana that was found on-site.
Asking a court to suppress evidence of a crime is always tough, because quite obviously the person is guilty. However, the purpose of the exclusionary doctrine is to deter unconstitutional intrusions by law enforcement, and U.S. courts have consistently ruled that allowing some guilty people to go unpunished is the acceptable cost of enforcing the constitutional rights of everyone. Our firm has experience successfully moving to suppress evidence of drugs in trial courts and is available for consultation and/or representation in Wake County criminal cases.