State v. Gentile, 237 N.C. App. 304 (Nov. 18, 2014)

A search of the defendant’s garage pursuant to a search warrant was improper. Following up on a tip that the defendant was growing marijuana on his property, officers went to his residence. They knocked on the front door but received no response. They then went to the back of the house because they heard barking dogs and thought that an occupant might not have heard them knock. Once there they smelled marijuana coming from the garage and this discovery formed the basis for the search warrant. The court concluded that “the sound of barking dogs, alone, was not sufficient to support the detectives’ decision to enter the curtilage of defendant’s property by walking into the back yard of the home and the area on the driveway within ten feet of the garage.” The court went on to conclude that when the detectives smelled the odor of marijuana, “their purported general inquiry about the information received from the anonymous tip was in fact a trespassory invasion of defendant’s curtilage, and they had no legal right to be in that location.” The subsequent search based, in part, on the odor of marijuana was unlawful.

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