              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1000

                                 Filed: 15 May 2018

Durham County, No. 16 CRS 51870

STATE OF NORTH CAROLINA

             v.

KAREEM STANLEY


      Appeal by defendant from judgment entered 13 February 2017 by Judge

Beecher R. Gray in Durham County Superior Court. Heard in the Court of Appeals

19 April 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Martin T.
      McCracken, for the State.

      Patterson Harkavy LLP, by Paul E. Smith, for defendant-appellant.


      DAVIS, Judge.


      This case presents the question of whether the Fourth Amendment permits

law enforcement officers to conduct a knock and talk at the back door of a residence

rather than at the clearly visible and unobstructed front door. Kareem Stanley

(“Defendant”) appeals from his convictions for trafficking in heroin by transportation;

trafficking in heroin by possession; possession with intent to manufacture, sell, or

deliver a Schedule I controlled substance; possession with intent to sell or deliver a

Schedule II controlled substance; and possession of drug paraphernalia. On appeal,
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                                   Opinion of the Court



he argues that the trial court erred by denying his motion to suppress evidence of the

drugs seized from his person as a result of an illegal knock and talk. Because we

conclude that (1) the knock and talk was unconstitutional; and (2) the evidence

obtained by the officers would not have been discovered but for the knock and talk,

we reverse the trial court’s denial of his motion to suppress.

                      Factual and Procedural Background

      In 2015, Investigator Joseph Honeycutt was working for the Special

Operations Division of the Durham Police Department.             In December 2015, a

confidential informant contacted the police department stating that he had

purchased heroin from a person at Apartment A at 1013 Simmons Street (“Apartment

A”) in Durham. The informant identified James Meager as the person from whom he

had bought heroin at Apartment A.

      Investigator Honeycutt subsequently became aware that Apartment A

belonged to an individual named James Hazelton.           Investigator Honeycutt also

learned that Meager did not actually live at the apartment.

      Nevertheless, Investigator Honeycutt used the informant to conduct controlled

drug sales involving Meager at Apartment A on three separate occasions. On 8

December 2015, Investigator Honeycutt observed the informant walk up the

driveway to the back door of the apartment in order to purchase heroin from Meager.

On 16 December 2015, Investigator Honeycutt once again used the informant to buy



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heroin from Meager at the back door of Apartment A. Finally, on a third occasion,

Investigator Honeycutt observed the informant purchase heroin from the back door

of the apartment.

      On 1 March 2016, Investigator Honeycutt, Investigator Thomas Thrall, and

four to five other members of the Durham Police Department approached Apartment

A in order to locate Meager and serve him with a warrant for his arrest. They were

dressed in protective vests with the word “Police” written across their chests. The

officers did not possess a warrant to search the apartment.

      Upon the officers’ arrival at the apartment, they immediately walked down the

driveway that led to the back of the apartment, and Investigator Honeycutt knocked

on the back door. In response to an inquiry from a person inside Apartment A as to

who was knocking, Investigator Honeycutt responded: “Joey.”

      Defendant, who had been staying with Hazelton as a houseguest at Apartment

A from January through March of 2016, answered the door, and Investigator

Honeycutt “immediately detected . . . the odor of marijuana.” He stepped into the

apartment and began conducting a protective sweep of the premises. One or two

other officers also entered Apartment A to assist him. During the protective sweep,

the officers located Hazelton and handcuffed him. A “crack pipe” was discovered on

the nightstand in one of the bedrooms of the residence. Investigator Honeycutt also

observed a handgun laying on a couch in the living room.



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      In the meantime, Investigator Thrall waited with several other officers outside

the back door. At some point, he directed Defendant to accompany him outside. After

Defendant complied with his request, Investigator Thrall told him to take his hands

out of his pockets and asked if he was carrying any weapons. Defendant denied

possessing any weapons but kept his hands in his pockets. Investigator Thrall asked

Defendant a second time to remove his hands from his pockets, and Defendant once

again failed to do so.

      At that point, Investigator Thrall pulled Defendant’s hands out of his pockets,

placed them on his head, and informed Defendant that he was going to search him

for safety reasons. He then proceeded to conduct a pat-down of Defendant’s person.

While patting down Defendant’s right pants pocket, he felt a bulge.         He asked

Defendant what was in the pocket, and Defendant responded that it was “some

Vaseline.” Investigator Thrall then patted down Defendant’s left pants pocket and

felt a larger bulge. He asked Defendant what was in that pocket, and Defendant

replied that it was cocaine.

      At that point, Investigator Thrall handcuffed Defendant and reached into

Defendant’s pockets to retrieve the items contained therein. Inside Defendant’s left

pants pocket, Investigator Thrall discovered a “plastic baggy that contained some

small yellow baggies with a white substance that [he] believed . . . to be cocaine.” He




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also found three smaller tan baggies that appeared to contain heroin. Investigator

Thrall retrieved a small bag of marijuana from Defendant’s right pants pocket.

      After Defendant had been searched, Investigator Honeycutt returned to the

back door with Hazelton in handcuffs. He informed Investigator Thrall that he was

going to obtain a search warrant for the apartment. Investigator Thrall and the other

officers then waited outside Apartment A with Hazelton and Defendant, both of

whom remained handcuffed.       Once a search warrant was obtained, the officers

searched the apartment and found a digital scale near the crack pipe on the

nightstand.

      Defendant was arrested and charged with trafficking in heroin by

transportation; trafficking in heroin by possession; possession with intent to

manufacture, sell, or deliver a Schedule I controlled substance; possession with intent

to sell or deliver a Schedule II controlled substance; and possession of drug

paraphernalia. On 10 February 2017, Defendant filed a motion to suppress all of the

evidence that had been seized from his pockets on the ground that the seizure violated

his rights under the Fourth Amendment. A hearing was held before the Honorable

Beecher R. Gray in Durham County Superior Court on 13 February 2017, and the

trial court denied Defendant’s motion.

      On that same day, Defendant pled guilty to all of the charged offenses but

expressly reserved his right to appeal the denial of his motion to suppress. The trial



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court consolidated all five offenses and sentenced Defendant to a term of 70 to 93

months imprisonment.

                                      Analysis

      Defendant’s sole argument on appeal is that the trial court erred in denying

his motion to suppress. Specifically, he argues that the officers violated his Fourth

Amendment rights by (1) unlawfully conducting a knock and talk at the back door of

Apartment A rather than the front door; (2) entering the apartment without the

existence of probable cause and exigent circumstances; and (3) conducting an illegal

pat-down search of his person.

      “When a motion to suppress is denied, this Court employs a two-part standard

of review on appeal: The standard of review in evaluating the denial of a motion to

suppress is whether competent evidence supports the trial court’s findings of fact and

whether the findings of fact support the conclusions of law.” State v. Jackson, 368

N.C. 75, 78, 772 S.E.2d 847, 849 (2015) (citation and quotation marks omitted).

“Unchallenged findings of fact are deemed to be supported by competent evidence and

are binding on appeal. Conclusions of law are reviewed de novo and are subject to

full review.” State v. Warren, 242 N.C. App. 496, 498, 775 S.E.2d 362, 364 (2015)

(internal citations and quotation marks omitted), aff’d per curiam, 368 N.C. 756, 782

S.E.2d 509 (2016).




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      In its written order denying Defendant’s motion to suppress, the trial court

made the following findings of fact:

             1.   On March 01, 2016, Investigator Honeycutt and other
                  members of the Special Operations Division of the
                  Durham Police Department conducted a knock and
                  talk at 1013 Simmons Street, Apartment A to locate
                  James Meagher [sic], for whom they had an
                  outstanding arrest warrant and who had been
                  identified by a confidential informant as the person the
                  informant had purchased cocaine from on at least three
                  (3) previous occasions from the back door of the
                  residence identified as Apartment A, 1013 Simmons
                  Street in Durham, including cocaine purchases on
                  December 08, 2015 and December 16, 2015.

             2.   Each time the confidential informant purchased
                  narcotics under the surveillance and supervision of the
                  investigators, the confidential informant went to the
                  back door at 1013 Simmons Street, Apartment A. The
                  back door of Apartment A is more hidden from public
                  view than the front door of Apartment A at 1013
                  Simmons Street.

             3.   On March 01, 2016, Investigator Honeycutt went
                  directly to the back door of 1013 Simmons Street,
                  Apartment A and knocked, identifying himself as Joey
                  Honeycutt.

             4.   Kareem Stanley (hereinafter “Defendant”) opened the
                  door.

             5.   As soon as the door was opened, Investigators could
                  smell a strong odor of marijuana coming from inside of
                  the residence. The police officers were wearing vests
                  which had the word “Police” across the front of each
                  vest. No weapons were drawn by police officers at any
                  time during this visit to 1013 Simmons Street,
                  Apartment A.


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6.   Officer Honeycutt and 1 or 2 other officers entered
     1013 Simmons Street, Apartment A and conducted a
     safety sweep based on the odor of marijuana and prior
     drug sales occurring at 1013 Simmons Street,
     Apartment A. This safety sweep lasted an estimated
     one to one and one-half minutes in this small duplex
     apartment.      During the safety sweep, Officer
     Honeycutt and other officers found a single individual
     identified as James Hazleton [sic], observed in plain
     view what appeared to be a crack pipe, and observed in
     plain view a handgun. James Meagher [sic], the object
     of an outstanding arrest warrant, was not in the
     apartment. Following the completion of this safety
     sweep, Officer Honeycutt departed 1013 Simmons
     Street in order to obtain a search warrant for the
     Apartment, the individuals found there, and any
     automobile located there.

7.   As officers entered Apartment A to begin the safety
     sweep, the Defendant stepped out of the 1013 Simmons
     Street Apartment A, upon request by officer Thomas
     Thrall.

8.   The Defendant had his hands in his pockets and was
     asked twice by Investigator Thrall to take his hands
     out of his pockets.       Rather than comply with
     Investigator Thrall’s request to remove his hands from
     his pockets for officer safety, Defendant pushed his
     hands deeper into his pockets.

9.   After the Defendant did not comply with Investigator
     Thrall’s requests[,] Investigator Thrall removed the
     Defendant’s hands from his pockets and placed the
     Defendant’s hands on top of his head, as he had been
     trained to do.

10. Investigator Thrall verbally notified the Defendant
    that he was about to conduct a pat down and then
    conducted a Terry frisk to check whether any kind of


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                weapon was being concealed in the Defendant’s
                pockets that could be used to harm Investigator Thrall
                or one of the other investigators present.

            11. Investigator Thrall patted down on the Defendant’s
                right front pocket and felt a small bulge. The
                Investigator asked about the bulge in Defendant’s
                right front pocket and the Defendant responded
                “Vaseline.” The bulge on the pat down of Defendant’s
                right front pocket did not feel like Vaseline to
                Investigator Thrall, but since the item did not feel like
                a weapon when patted, Investigator Thrall moved on
                to the Defendant’s left side front pocket.

            12. Investigator Thrall patted down on the Defendant’s
                left front pocket and felt an even larger bulge. When
                asked about the larger bulge in his left pocket, the
                Defendant said “cocaine.”

            13. After the Defendant told Investigator Thrall the bulge
                in his left front pocket was cocaine, the Defendant was
                handcuffed and placed in custody. Defendant was not
                questioned further, except for his identification, until
                after Investigator Honeycutt’s search warrant was
                served on the Defendant at 1220 p.m. on March 01,
                2016; he was transported to the Durham Police
                Department; and given Miranda warnings prior to
                being interrogated.

      Based on these findings of fact, the trial court determined that the officers did

not violate Defendant’s Fourth Amendment rights by conducting the knock and talk,

entering the apartment, or conducting a pat-down search of Defendant’s person.

Therefore, the court denied Defendant’s motion to suppress.

      As an initial matter, Defendant challenges the second sentence of Finding No.

2 to the extent it implies that (1) the front door was partially obstructed and not


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clearly visible from the street; and (2) the back door was not hidden from public view.

We agree with Defendant that photographs of the apartment contained in the record

on appeal reveal that the front door was, in fact, clearly visible from the street and

unobstructed whereas the back door could not be seen.

       The remaining pertinent findings of fact made by the trial court are

unchallenged and, therefore, binding on appeal. See Warren, 242 N.C. App. at 498,

775 S.E.2d at 364 (holding that unchallenged findings in order denying motion to

suppress are deemed to be supported by competent evidence and binding on appeal).

       We first address Defendant’s argument that the knock and talk conducted by

the officers constituted an unlawful search for purposes of the Fourth Amendment.1

“A ‘knock and talk’ is a procedure by which police officers approach a residence and

knock on the door to question the occupant, often in an attempt to gain consent to

search when no probable cause exists to obtain a warrant.” State v. Marrero, __ N.C.

App. __, __, 789 S.E.2d 560, 564 (2016). Our appellate courts “have recognized the

right of police officers to conduct knock and talk investigations, so long as they do not

rise to the level of Fourth Amendment searches.” Id. at __, 789 S.E.2d at 564.




       1  The State does not challenge the fact that Defendant possessed a reasonable expectation of
privacy in Apartment A for purposes of the Fourth Amendment based on his status as a houseguest
who had been living there for over a month. See Minnesota v. Olson, 495 U.S. 91, 96-97, 109 L. Ed. 2d
85, 93 (1990) (holding that defendant’s “status as an overnight guest is alone enough to show that he
had an expectation of privacy in the home that society is prepared to recognize as reasonable”).

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      In Florida v. Jardines, 569 U.S. 1, 185 L. Ed. 2d 495 (2013), the United States

Supreme Court explained the permissible scope of a knock and talk as follows:

             [T]he knocker on the front door is treated as an invitation
             or license to attempt an entry, justifying ingress to the
             home by solicitors, hawkers and peddlers of all
             kinds. . . . This implicit license typically permits the
             visitor to approach the home by the front path, knock
             promptly, wait briefly to be received, and then (absent
             invitation to linger longer) leave. Complying with the
             terms of that traditional invitation does not require fine-
             grained legal knowledge; it is generally managed without
             incident by the Nation’s Girl Scouts and trick-or-treaters.
             Thus, a police officer not armed with a warrant may
             approach a home and knock, precisely because that is no
             more than any private citizen might do.

Id. at 8, 185 L. Ed. 2d at 502 (internal citations, quotation marks, and footnote

omitted).

      “[I]n North Carolina, law enforcement officers may approach a front door to

conduct ‘knock and talk’ investigations that do not rise to the level of a Fourth

Amendment search.” State v. Smith, __ N.C. App. __, __, 783 S.E.2d 504, 509 (2016)

(citation and quotation marks omitted). We recently addressed the legality of a knock

and talk conducted at the back door of a residence in State v. Huddy, __ N.C. App. __,

__, 799 S.E.2d 650, 654 (2017). In Huddy, an officer was patrolling an area that he

believed to be “at risk of home invasions” and observed a parked vehicle with the car

doors open at the end of a long driveway leading to the rear of the defendant’s home.

Id. at __, 799 S.E.2d at 653. The officer became suspicious and approached the front



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door of the house. He observed that the front door of the residence was covered in

cobwebs and walked to the back of the residence. Id. at __, 799 S.E.2d at 653.

      The officer entered the backyard and “approached a storm door on the rear

porch, which was not visible from the street” in order to conduct a knock and talk.

Id. at __, 799 S.E.2d at 653. As he got closer to the storm door, the officer smelled

marijuana. He knocked on the back door and spoke to the defendant, who opened the

door. Based on the odor of marijuana at the storm door, the officer later obtained a

search warrant for the home. During a search of the residence, the officer ultimately

discovered a large quantity of marijuana.          The defendant was charged with

possession of marijuana with intent to sell or deliver and moved to suppress the

evidence seized from the home. Id. at __, 799 S.E.2d at 653.

      On appeal, we held that the defendant’s Fourth Amendment rights had been

violated. In so ruling, we stated the following:

                    We begin with the knock and talk doctrine. Because
             no search of the curtilage occurs when an officer is in a
             place where the public is allowed to be, such as at the front
             door of a house, officers are permitted to approach the front
             door of a home, knock, and engage in consensual
             conversation with the occupants. . . . Put another way, law
             enforcement may do what occupants of a home implicitly
             permit anyone to do, which is approach the home by the
             front path, knock promptly, wait briefly to be received, and
             then (absent invitation to linger longer) leave.

                    Importantly, law enforcement may not use a knock
             and talk as a pretext to search the home’s curtilage. No
             one is impliedly invited to enter the protected premises of


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               the home in order to do nothing but conduct a search.
               Likewise, the knock and talk doctrine does not permit law
               enforcement to approach any exterior door to a home. An
               officer’s implied right to knock and talk extends only to the
               entrance of the home that a reasonably respectful citizen
               unfamiliar with the home would believe is the appropriate
               door at which to knock. . . . This limitation is necessary to
               prevent the knock and talk doctrine from swallowing the
               core Fourth Amendment protection of a home’s curtilage.
               Without this limitation, law enforcement freely could
               wander around one’s home searching for exterior doors
               and, in the process, search any area of a home’s curtilage
               without a warrant.

Id. at __, 799 S.E.2d at 654 (internal citations, quotation marks, and brackets omitted

and emphasis added).2

       Huddy is consistent with prior decisions from this Court in which we have held

that knock and talks taking place at a home’s back door were unconstitutional. See,

e.g., State v. Gentile, 237 N.C. App. 304, 310, 766 S.E.2d 349, 353 (2014) (motion to

suppress properly granted where detectives briefly knocked on front door and then

attempted knock and talk at back door); State v. Pasour, 223 N.C. App. 175, 179, 741

S.E.2d 323, 326 (2012) (trial court erred in denying motion to suppress where officers

attempted knock and talk at back door after no one answered knock on front door).

       In the present case, the officers knew that Meager did not live at Apartment A

but believed that they could either locate him at the apartment or learn more about



       2We note that the trial court did not have the benefit of our decision in Huddy at the time it
denied Defendant’s motion to suppress as Huddy was decided approximately two months later.


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his whereabouts by conducting a general inquiry of the occupants. Therefore, they

elected to utilize a knock and talk. However, in order to pass constitutional muster,

the officers were required to conduct the knock and talk by going to the front door,

which they did not do. Rather than using the paved walkway that led directly to the

unobstructed front door of the apartment, the officers walked along a gravel driveway

into the backyard in order to knock on the back door, which was not visible from the

street. Such conduct would not have been reasonable for “solicitors, hawkers [or]

peddlers . . . .”   See Jardines, 569 U.S. at 8, 185 L. Ed. 2d at 502 (citation and

quotation marks omitted).       Thus, it was also unreasonable for law enforcement

officers.

       The trial court determined that the officers had an implied license to approach

the back door of Apartment A because a confidential informant had been observed

purchasing drugs from Meager by utilizing the back door on three separate occasions.

However, the fact that the resident of a home may choose to allow certain individuals

to use a back or side door does not mean that similar permission is deemed to have

been given generally to members of the public. As we made clear in Huddy, “[a]n

officer’s implied right to knock and talk extends only to the entrance of the home that

a reasonably respectful citizen unfamiliar with the home would believe is the

appropriate door at which to knock.” Huddy, __ N.C. App. at __, 799 S.E.2d at 654

(citation and quotation marks omitted and emphasis added); see also id. at __, 799



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S.E.2d at 656-57 (Tyson, J., concurring) (“The home’s occupants, family, or frequent

invitees may use a closer side or back door or a door within a garage to enter the

home, rather than walk further to use a front door. Nonetheless, even a seldom-used

front door is the door uninvited members of the public are expected to use when they

arrive. . . . Even if the back door was the entrance primarily used by [the defendant]

or regular visitors, an uninvited visitor would not necessarily acquire any ‘implied

license’ to also use that door.” (internal citation omitted)).

      We recognize that the existence of unusual circumstances in some cases may

allow officers to lawfully approach a door of a residence other than the front door in

order to conduct a knock and talk. See, e.g., State v. Grice, 367 N.C. 753, 754, 761,

767 S.E.2d 312, 314, 318 (2015) (holding that officers were “implicitly invited into the

curtilage to approach the home” where front door was “inaccessible, covered with

plastic, and obscured by furniture” and side door “appeared to be used as the main

entrance”), cert. denied, __ U.S. __, 192 L. Ed. 2d 882 (2015). However, no such

unusual circumstances are presented here. As a result, the knock and talk was

unconstitutional.

      Finally, it is clear from the record that absent the unlawful knock and talk at

Apartment A the officers would not have had any contact at all with Defendant much

less had occasion to conduct a pat-down search of his person resulting in the discovery

of the drugs in his pockets. Thus, because the knock and talk itself was unlawful the



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evidence of the drugs seized from him as a result was required to be suppressed. See

State v. Jackson, 199 N.C. App. 236, 244, 681 S.E.2d 492, 498 (2009) (holding that

drugs “discovered as a direct result of the illegal search . . . should have been

suppressed as fruit of the poisonous tree”).

      Therefore, the trial court erred in denying Defendant’s motion to suppress.

Accordingly, we reverse the trial court’s order.3

                                           Conclusion

      For the reasons stated above, we reverse the trial court’s order denying

Defendant’s motion to suppress and remand for further proceedings not inconsistent

with this opinion.

      REVERSED AND REMANDED.

      Judges INMAN and MURPHY concur.




      3   In light of our holding, we need not reach the other arguments raised by Defendant.

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