State v. Nicholson ( 1982 )

MORRIS, Chief Judge.

The state appeals on the question whether the trial court erred in suppressing the evidence, despite the fact that the state expressly stated it was offering no evidence obtained under the authority of the search warrant. This is the only issue addressed in the briefs. We are unable to reach it, however.

Standing to claim the protection of the Fourth Amendment of freedom from unreasonable searches and seizures is based upon the “legitimate expectations of privacy” of the individual asserting that right in the place which has allegedly been unreasonably invaded. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed. 2d 387 (1978), rehearing denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed. 2d 83 (1979), citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967). In this case, the record does not contain facts necessary to determine whether defendant had a sufficient interest in the searched premises to attack the constitutionality of the search.

We therefore remand the case to the Superior Court for determination of whether defendant had standing to object and for the entry of an order containing findings of fact and conclusions as to whether defendant had, for Fourth Amendment purposes, a protected interest in the searched premises, State v. Prevette, 39 N.C. App. 470, 250 S.E. 2d 682, disc. rev. den. 297 N.C. 179, 254 S.E. 2d 38 (1979). The order shall be certified to this Court. Defendant may, should he be so advised, file exceptions and assignments of error to the order, and if, upon a determination that he had no standing, he should file exceptions and assignments of error. The parties may file with this Court additional briefs upon those assignments of error.

Error and remanded.

Judges Clark and Martin (Harry C.) concur.