State v. Brown , 35 N.C. App. 634 ( 1978 )

242 S.E.2d 184 (1978) 35 N.C. App. 634

STATE of North Carolina
v.
Jeffrey Allen BROWN.

No. 7721SC898.

Court of Appeals of North Carolina.

March 21, 1978.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. William Woodward Webb, Raleigh, for the State.

Johnson & Walker, by Gary J. Walker, Winston-Salem, for defendant-appellant.

WEBB, Judge.

Defendant's appeal presents the question whether the law enforcement officers in the execution of the search warrant, under the facts in this case, were justified in making a forcible, unannounced entry into defendant's residence when it reasonably appeared that notice of their entry would cause the destruction of secreting of contraband or evidence. We answer in the negative.

G.S. 15A-249 defines the procedures law enforcement officers must follow when executing a search warrant. It reads:

The officer executing a search warrant must, before entering the premises, give appropriate notice of his identity and purpose to the person to be searched, or the person in apparent control of the premises to be searched. If it is unclear whether anyone is present at the premises to be searched, he must give the notice in a manner likely to be heard by anyone who is present. (Emphasis added.)

No one disputes that the provisions of G.S. 15A-249 were not complied with during the search of defendant's house. Judge Lupton, however, found in his order that:

". . . the defendant was not prejudiced by this deviation from the requirements of North Carolina General Statute 15A-249 since the reason for complying with the above statute is to show that the officers were not trespassers and that the deviation from lawful conduct was minor, and that the lawfulness of the deviation was somewhat justified by the word received through the confidential informant that the contraband may be destroyed and that to exclude the seized evidence would not tend to deter future deviation of G.S. 15A-249, because again the officers had word that the destruction of the contraband was probable."

We do not read G.S. 15A-249 so narrowly as to have as its main purpose the protection of law enforcement officers from homeowner assaults, nor do we read the statute so broadly as to justify its violation when the destruction of contraband is probable. As we interpret the statute, it is also designed to protect the public from unreasonable searches and seizures and to guard the right to privacy in our homes. Unannounced, forcible entries by officers are authorized by statute in situations in which life or safety of any person is endangered. G.S. 15A-251(2).

Finding, as we have, that G.S. 15A-249 was violated during the search of defendant's residence, we must determine if this violation of statute requires the evidence seized to be excluded. We hold that the motion to suppress should have been granted. The statutory test for the exclusion or suppression of unlawfully obtained evidence is found in G.S. 15A-974. It provides:

Upon timely motion, evidence must be suppressed if:

(1) Its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina; or

(2) It is obtained as a result of a substantial violation of the provisions of this Chapter. In determining whether a violation is substantial, the court must consider all the circumstances, including:

a. The importance of the particular interest violated;

b. The extent of the deviation from lawful conduct;

c. The extent to which the violation was willful;

d. The extent to which exclusion will tend to deter future violations of this Chapter.

We concede, without deciding, that the officer's conduct in gaining entry to search defendant's house would not require the exclusion of evidence under federal Constitutional standards and, a fortiori, State Constitutional standards. See Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). However, regardless of the constitutionality of the search, we hold that the evidence seized must be suppressed because the officers obtained their evidence "as a result of a substantial violation" of the Criminal Procedure Act. See State v. Williams, 31 N.C.App. 237, 229 S.E.2d 63 (1976). Consideration of the circumstances cited under subsection (2) of G.S. 15A-974 leads us to conclude that the provisions of the Criminal Procedure Act were substantially violated. First, the protection of the public from unreasonable searches and seizures and the right to privacy in our homes are two interests that have been violated. We consider these interests to be of utmost importance. Second, Deputy McGee did not knock, identify himself (nor was he dressed in uniform so as to give rise to constructive notice of his authority), or state his purpose before entering defendant's house. This was a total deviation from the procedures outlined in G.S. 15A-249. Third, as to whether the violation of the statute was willful, it is evident from the record that the officers planned their diversionary chase to enable Deputy McGee to secretly enter defendant's residence. A prearranged scheme to circumvent the statute's requirements establishes that the violation was willful. Finally, we believe that the exclusion of evidence under the facts of this case will tend to deter future violations of G.S. 15A-249.

In so far as State v. Watson, 19 N.C.App. 160, 198 S.E.2d 185 (1973) is inconsistent with this opinion, we believe that it has been overruled by G.S. 15A-251.

We reverse. The motion to suppress evidence should have been granted.

BRITT and HEDRICK, JJ., concur.