State v. Smith, 246 N.C. App. 170 (Mar. 1, 2016)

No fourth amendment violation occurred when officers entered the defendant’s driveway to investigate a shooting. When detectives arrived at the defendant’s property they found the gate to his driveway open. The officers did not recall observing a “no trespassing” sign that had been reported the previous day. After a backup deputy arrived, the officers drove both of their vehicles through the open gate and up the defendant’s driveway. Once the officers parked, the defendant came out of the house and spoke with the detectives. The defendant denied any knowledge of a shooting and denied owning a rifle. However, the defendant’s wife told the officers that there was a rifle inside the residence. The defendant gave verbal consent to search the home. In the course of getting consent, the defendant made incriminating statements. A search of the home found a rifle and shotgun. The rifle was seized but the defendant was not arrested. After leaving and learning that the defendant had a prior felony conviction from Texas, the officers obtained a search warrant to retrieve the other gun seen in his home and a warrant for the defendant’s arrest. When officers returned to the defendant’s residence, the driveway gate was closed and a sign on the gate warned “Trespassers will be shot exclamation!!! Survivors will be shot again!!!” The team entered and found multiple weapons on the premises. At trial the defendant unsuccessfully moved to suppress all of the evidence obtained during the detectives’ first visit to the property and procured by the search warrant the following day. He pled guilty and appealed. The court rejected the defendant’s argument that a “no trespassing” sign on his gate expressly removed an implied license to approach his home. While the trial court found that a no trespassing sign was posted on the day of the shooting, there was no evidence that the sign was present on the day the officers first visited the property. Also, there was no evidence that the defendant took consistent steps to physically prevent visitors from entering the property; the open gate suggested otherwise. Finally, the defendant’s conduct upon the detectives’ arrival belied any notion that their approach was unwelcome. Specifically, when they arrived, he came out and greeted them. For these reasons, the defendant’s actions did not reflect a clear demonstration of an intent to revoke the implied license to approach. The court went on to hold that the officers’ actions did not exceed the scope of a lawful knock and talk. Finally, it rejected the defendant’s argument his fourth amendment rights were violated because the encounter occurred within the curtilage of his home. The court noted that no search of the curtilage occurs when an officer is in a place where the public is allowed to be for purposes of a general inquiry. Here, they entered the property by through an open driveway and did not deviate from the area where their presence was lawful.