State v. Ellis, ___ N.C. App. ___, ___ S.E.2d ___ (Jun. 18, 2019)

After discovering stolen property at a home across the street, officers approached the front door of the defendant’s residence after being informed by a witness that the person who stole the property was at the residence. No one answered the knock, and officers observed a large spiderweb in the door frame. After knocking several minutes, an officer observed a window curtain inside the home move. An officer went to the back of the home. No one answered the officer at the back door either, despite the officer again knocking for several minutes. That officer then left the back door and approached the left front corner of the home. There, the officer smelled marijuana. Another officer confirmed the smell, and they observed a fan loudly blowing from the crawl space area of the home. The odor of marijuana was emanating from the fan and an officer looked between the fan slats, where he observed marijuana plants. A search warrant was obtained on this basis, and the defendant was charged with trafficking marijuana and other drug offenses. The trial court denied the motion to suppress, finding that the smell and sight of the marijuana plants were in plain view. The court of appeals unanimously reversed.  Florida v. Jardines, 569 U.S. 1 (2013), recognizes the importance of the home in the Fourth Amendment context and limits the authority of officers conducting a knock and talk. Jardines found a search had occurred when officers conducting a knock and talk used a drug sniffing dog on the suspect’s front porch, and that such action exceeded the permissible boundaries of a knock and talk. Even though no police dog was present here, “[t]he detectives were not permitted to roam the property searching for something or someone after attempting a failed ‘knock and talk’. Without a warrant, they could only ‘approach the home by the front path, knock promptly, and then (absent invitation to linger longer) leave.” (citing Jardines). North Carolina applies the home protections to the curtilage of the property, and officers here exceeded their authority by moving about the curtilage of the property without a warrant. Once the knocks at the front door went unanswered, the officers should have left. The court discounted the State’s argument that the lack of a “no trespassing” sign on the defendant’s property meant that the officers could be present in and around the yard of the home. In the words of the court: 

While the evidence of a posted no trespassing sign may be evidence of a lack of consent, nothing . . . supports the State’s attempted expansion of the argument that the lack of such a sign is tantamount to an invitation for someone to enter and linger in the curtilage of the residence.

Because the officers here only smelled the marijuana after leaving the front porch and lingering in the curtilage, officers were not in a position they could lawfully be, and the plain view exception to the Fourth Amendment did not apply. Even if officers were lawfully present in the yard, the defendant had a reasonable expectation of privacy in his crawl space area, and officers violated that by looking through the fan slats. The denial of the motion to suppress was therefore reversed.