             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-908

                               Filed: 2 August 2016

Mecklenburg County, No. 14 CRS 208478-81

STATE OF NORTH CAROLINA

            v.

ROLANDO MARRERO, Defendant.


      Appeal by defendant from judgment entered 12 January 2015 by Judge

Beecher R. Gray in Superior Court, Mecklenburg County. Heard in the Court of

Appeals on 27 January 2016.


      Attorney General Roy A. Cooper III, by Special Deputy Attorney General
      Richard E. Slipsky, for the State.

      Allegra Collins Law, by Allegra Collins, for defendant-appellant.


      STROUD, Judge.



      Defendant Rolando Marrero appeals from the trial court’s denial of his motion

to suppress. On appeal, defendant argues that the trial court erred and should have

granted his motion because officers violated his Fourth Amendment rights when they

entered his home. After review, we affirm the decision of the lower court, because

defendant was not illegally seized and exigent circumstances justified the officers’

warrantless entry into defendant’s home.

                                  I. Background
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                                  Opinion of the Court



      The trial court’s findings of fact are not challenged on appeal. On 2 March

2014, at 7:52 p.m., Sergeant Robert Wise of the Charlotte Mecklenburg Police

Department (“CMPD”) received a message from a confidential informant of a “home

invasion” robbery to take place at 9:00 p.m. that night “at a residence near Milton

Road.” The informant claimed that he had turned down an offer to join the robbery

and that there was a red pickup truck in the driveway of the targeted residence. The

informant also alleged that the two suspects had attempted to obtain an AK-47

assault rifle and would be in a small red Hyundai vehicle.

      Sergeant Wise was able to confirm that the informant’s information was

reliable and dispatched officers to monitor the location.       Officers identified a

particular house on Bell Plaine Drive as the location of the targeted residence. While

monitoring, the officers observed a small red Hyundai drive past the house twice.

Thereafter, the officers were informed that detectives and other patrol officers were

en route to the house to conduct a “knock and talk” to investigate drug activity. The

officers on scene were instructed to watch the back of the house and positioned

themselves near the intersection of the end of the driveway, the backyard, and back

right corner of the residence to ensure no one attempted to enter from the back. At

least two officers were in the front of the residence with shotguns pointed downward

in “low ready position.”




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      At 9:15 p.m., CMPD detectives Brett Riggs and Messer1 arrived wearing

tactical vests with “POLICE” written across them. The other six officers were in full

uniform at various locations surrounding the residence, facing away from the house

in anticipation of robbery suspects armed with an AK-47. Detective Riggs did not

know whether a robbery had already occurred, was in progress, or had not yet

occurred. With Detective Messer at his side, Detective Riggs approached defendant’s

front porch, shined his flashlight into the windows on either side of the front door,

and then knocked. In response to a muffled voice, Detective Riggs loudly stated,

“Charlotte-Mecklenburg Police Department.” After receiving no response, Detective

Riggs knocked on the door once more and, after a few moments, defendant opened

the door. Only two or three minutes elapsed from the initial knock to the moment

defendant opened the door. During the encounter, Detective Riggs did not see any

blue lights emitting from any of the patrol vehicles.

      When the door was opened, Detective Riggs immediately smelled unburned, or

“green,” marijuana from inside the house. Detective Riggs attempted to explain to

defendant that the officers were there to investigate potential drug activity and

protect against a potential home invasion, but quickly realized defendant did not

speak or understand English. Based on the odor of marijuana, Detective Riggs




      1   Detective Messer is never identified by his first name in the record on appeal.

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decided to detain defendant, perform a protective sweep of the residence, and apply

for a search warrant.

      Two officers conducted a protective sweep of the house to ensure there was no

one else inside who could harm them. Soon after, Detectives Riggs and Messer

obtained a search warrant and a Spanish-speaking CMPD officer read the warrant

to defendant. During the execution of the search warrant, 149 living marijuana

plants and 20 pounds of vacuum-sealed marijuana were found in defendant’s

basement. About 30 pounds of marijuana were seized as a result of the search.

      Defendant was indicted on 10 March 2014 for (1) Trafficking in Drugs; (2)

Manufacture of a Controlled Substance; (3) Maintaining a Place to Keep Controlled

Substances; and (4) Possession of Drug Paraphernalia. Defendant filed a motion to

suppress evidence seized at his residence on 24 July 2014, arguing that the evidence

was obtained as a result of a non-consensual knock and talk, which amounted to a

seizure of defendant in violation of the Fourth Amendment.

      Defendant’s motion came on for hearing on 12 January 2015. Three of the

CMPD officers who were involved in the encounter testified, including Detective Brett

Riggs, who was in charge of the operation. After a three-hour evidentiary hearing,

the trial court denied defendant’s motion. The court’s written order included findings

that the CMPD were onsite in response to information from a reliable informant that

an armed robbery of 30 or more pounds of marijuana was to take place at defendant’s



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                                  Opinion of the Court



residence; Detective Riggs and Detective Messer approached defendant’s front door

to conduct a “knock and talk”; before knocking Detective Riggs used a flashlight to

locate the house number and to determine if anyone inside the house was peering

out; “[i]t took the Defendant two to three minutes to answer the door” after Detective

Riggs first knocked; as soon as defendant opened the door Detective Riggs smelled a

strong odor of marijuana; and “[b]ased upon the odor of marijuana, and the

Defendant’s inability to understand English,” Detective Riggs made the decision to

enter and secure the residence. Based on these and other findings, the trial court

concluded that no illegal seizure of the defendant occurred during the course of the

knock and talk and that exigent circumstances justified CMPD’s warrantless entry

into defendant’s home.

      Following the trial court’s ruling, defendant pled guilty to the charges against

him. Defendant timely reserved his right to appeal and now appeals the denial of his

motion to suppress.

                               II. Motion to Suppress

      Defendant’s lone issue on appeal is whether the trial court erred in denying his

motion to suppress. Defendant claims his Fourth Amendment rights were violated

(1) because he was illegally seized inside his home as a result of police coercing him

to open his front door, (2) because he did not consent to the police entering his home,

and (3) because no exigent circumstances existed to justify a warrantless entry.



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                                   Opinion of the Court



Therefore, defendant asks this Court to reverse the lower court’s order and suppress

all evidence obtained as a result of his interaction with CMPD officers.

      The standard of review for determining whether a defendant’s motion to

suppress was properly denied is “ ‘whether the trial court’s findings of fact are

supported by the evidence and whether the findings of fact support the conclusions of

law.’ ” State v. Isenhour, 194 N.C. App. 539, 541, 670 S.E.2d 264, 266-67 (2008)

(quoting State v. Cockerham, 155 N.C. App. 729, 736, 574 S.E.2d 694, 699 (2003)).

“The trial court’s findings of fact are conclusive on appeal if supported by competent

evidence, even if the evidence is conflicting.” State v. Blackstock, 165 N.C. App. 50,

55, 598 S.E.2d 412, 416 (2004). Conclusions of law, on the other hand, are fully

reviewable on appeal. Isenhour, 194 N.C. App. at 541, 670 S.E.2d at 267. In carrying

out this analysis deference is given to the trial judge as he is in the best position to

weigh the evidence. Blackstock, 165 N.C. App. at 56, 598 S.E.2d at 416.

                                          1. Seizure

      Defendant first contends that he was illegally seized as a result of being

coerced into opening the front door of his house during a knock and talk carried out

by the CMPD. Whether defendant was coerced to open the door for a knock and talk

encounter is a novel question for this Court. While there is no case law directly on

point, there are many cases involving illegal seizures which guide this decision.




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                                   Opinion of the Court



      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. Smith, 346

N.C. 794, 800, 488 S.E.2d 210, 214 (1997).         This Court and the North Carolina

Supreme Court 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.

State v. Wallace, 111 N.C. App. 581, 585, 433 S.E.2d 238, 241 (1993) (“Law

enforcement officers have the right to approach a person’s residence to inquire

whether the person is willing to answer questions.”); State v. Grice, 367 N.C. 753, 762,

767 S.E.2d 312, 319 (discussing the limiting principle of knock and talk

investigations), cert. denied, __ U.S. __, 192 L. Ed. 2d 882 (2015).       The Fourth

Amendment ensures “[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures[.]”        U.S. Const.

amend. IV. “ ‘The touchstone of the Fourth Amendment is reasonableness.’ ” Grice,

367 N.C. at 756, 767 S.E.2d at 315 (quoting Florida v. Jimeno, 500 U.S. 248, 250, 114

L. Ed. 2d 297, 302 (1991).

      The seizure of an individual can take place through the application of physical

force or without the officer ever laying his hands on the person seized. Isenhour, 194

N.C. App. at 543, 670 S.E.2d at 267. An individual is seized by an officer and falls

within the protection of the Fourth Amendment when officer conduct “ ‘would have



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                                    Opinion of the Court



communicated to a reasonable person that he was not at liberty to ignore the police

presence and go about his business.’ ” State v. Icard, 363 N.C. 303, 308, 677 S.E.2d

822, 826 (2009) (quoting Florida v. Bostick, 501 U.S. 429, 437, 115 L. Ed. 2d 389, 400

(1991)) (quotation marks omitted). In determining whether a reasonable person

would feel free to decline an officer’s request to communicate, a reviewing court must

examine the totality of the circumstances. Id. at 308-09, 677 S.E.2d at 826. This test

focuses on the coercive effect of police conduct, taken as a whole. Id. at 309, 677

S.E.2d at 826. Circumstances which might indicate a seizure include, but are not

limited to, “the threatening presence of several officers, the display of a weapon by an

officer, some physical touching of the person of the citizen, or the use of language or

tone of voice indicating that compliance with the officer’s request might be

compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509

(1980).

          Defendant’s argument relies on a 7th Circuit case, United States v. Jerez, 108

F.3d 684 (7th Cir. 1997), and a comparison between the police conduct in Jerez and

the conduct of the officers in this case. In Jerez, the 7th Circuit held that a Fourth

Amendment seizure occurred based upon a knock and talk carried out by police

officers at a Wisconsin motel. Id. at 692-93. The officers in Jerez performed a knock

and talk after 11:00 p.m. at night and persistently knocked on the defendants’ motel

door for 3 minutes straight.       Id. at 687.      The officers made verbal demands



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                                  Opinion of the Court



encouraging the occupants to open the door, knocked on the window of the motel

room, and even shined a flashlight through the window illuminating one of the

defendants as he lay in his bed. Id. Based on the totality of the circumstances, the

7th Circuit concluded the police conduct during the knock and talk compelled the

defendants to open the door and amounted to a Fourth Amendment seizure. Id. at

692-93.

      Defendant’s reliance on Jerez is misplaced. Not only are 7th Circuit opinions

not binding on this Court, but the facts of Jerez are distinguishable from the facts of

the present case. Unlike Jerez, neither officer banged on windows, demanded the

door be opened, or looked for alternative methods of ensuring defendant was aware

of their presence. Here, the officers simply knocked on defendant’s front door a few

times and stated they were with the CMPD once over the course of the two to three

minutes it took defendant to answer the door. Detective Riggs did use a flashlight

before knocking, but only to identify the house number and for officer safety, not in

an attempt to rouse defendant as the officers in Jerez.

      North Carolina case law regarding “illegal seizures” offers the best instruction

for the present case. In Isenhour, the defendant appealed the denial of his motion to

suppress, claiming he was illegally seized and that the consent he gave officers to

search his vehicle was given involuntarily, due to the coercive conduct of those

officers. 194 N.C. App. at 541, 670 S.E.2d at 266. The police officers in Isenhour



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                                   Opinion of the Court



parked eight feet behind the defendant’s car, approached the defendant while armed

and in full uniform, and stood on either side of his car as they spoke with him. Id. at

540, 670 S.E.2d at 266. The defendant eventually consented to a search of his car

and was subsequently arrested. Id. at 541, 670 S.E.2d at 266. After conducting a

totality of the circumstances review, this Court affirmed the lower court’s denial of

the defendant’s motion to suppress, noting that the defendant’s consent was

voluntary and that the officers did not create any psychological or physical barriers

which would have led a reasonable person to believe that they were not free to leave

or terminate the encounter. Id. at 544, 670 S.E.2d at 268.

       In contrast, in Icard, a police officer pulled behind a parked vehicle, in which

the defendant was a passenger, and activated his blue lights. 363 N.C. at 304, 677

S.E.2d at 824. The officer called for back-up and a fellow officer arrived in his patrol

car and activated his takedown lights, illuminating the passenger side of the truck.

Id. at 305, 677 S.E.2d at 824. During the encounter, one officer rapped on the

passenger door of the vehicle. Id. After receiving no response the officer opened the

door himself and proceeded to ask for the defendant’s license and to search her purse.

Id.   The North Carolina Supreme Court concluded the interaction between the

defendant and the officers was non-consensual. Id. at 310-11, 677 S.E.2d at 827-28.

The Court noted that the actions of the officers amounted to a show of authority and




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                                  Opinion of the Court



that a reasonable person in the defendant’s position would not have felt free to leave

or terminate the encounter. Id.

      Defendant’s argument here mirrors the argument made by the defendant in

Isenhour. Although defendant seemingly consented to the knock and talk by opening

his door, he claims his response was involuntary and compelled by coercive police

conduct. Here, however, while other officers were on the scene outside the house,

there was no evidence that defendant was aware of their presence while he was in

the house and before he opened the door. During the knock and talk, Detective Riggs

could not see any blue lights from the police cars nearby.      Detective Riggs and

Detective Messer were the only officers on the defendant’s porch during the knock

and talk. Unlike in Icard, Detective Riggs and Detective Messer did not perform the

knock and talk with takedown lights shining into defendant’s home. Detective Riggs

did use a flashlight, but only to identify the house number and ensure that no one

was looking out from inside defendant’s house. As in Icard, Detective Riggs’ first few

knocks were ignored, but neither Detective Riggs nor Detective Messer reacted like

the officer in Icard. They did not attempt to open the front door themselves or

demand that the door be opened in an effort to engage with defendant. Instead, they

knocked once more and defendant eventually opened the door himself. Similar to

Isenhour, the officers here did not mount a show of authority or engage in intrusive

conduct.



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                                    Opinion of the Court



        Based on the totality of the circumstances, the trial court correctly concluded

that the officers in this case did not act in a physically or verbally threatening manner

and that no seizure of defendant occurred during the course of the knock and talk.

This conclusion is supported by the findings of fact in the record. Therefore, the trial

court did not err in concluding that the defendant was not illegally seized during the

knock and talk procedure carried out by CMPD officers.

                                  2. Exigent Circumstances

        Defendant next contends he did not consent to the search of his home by CMPD

officers and that no exigent circumstances existed to justify a warrantless entry of

his home after he opened the door. The trial court made no findings or conclusions of

law regarding a consent theory, as it concluded that probable cause and exigent

circumstances were present. When probable cause and exigent circumstances exist,

consent is not necessary. Therefore, this Court’s review focuses only on whether

exigent circumstances existed to justify the CMPD’s warrantless entry of defendant’s

home.

        We note that defendant’s only specific argument to any of the trial court’s

findings of fact is that “the evidence does not support the findings of fact” as to exigent

circumstances, but there is no such finding of fact.        Defendant argues that the

“finding” of exigent circumstances is in error based only upon testimony by Detective

Riggs that on the paperwork he completed after the search, he had answered “no” to



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                                   Opinion of the Court



a question about “whether this raid and search was for exigent circumstances.” The

trial court made only conclusions of law regarding exigent circumstances. Although

Detective Riggs did testify as defendant notes, a witness’s statement about a question

of law is not binding upon the trial court. In addition, Detective Riggs and the other

officers did testify about their safety concerns, particularly in light of the report of a

potential armed robbery, and the need to secure any evidence which may be readily

disposed during any delay while they obtained a warrant. Defendant does not raise

any objection to any of the findings of fact as unsupported by the evidence. We

therefore review this argument only to determine if the unchallenged findings of fact

support the trial court’s conclusion of law.

      The Fourth Amendment dictates that “a governmental search and seizure of

private property unaccompanied by prior judicial approval in the form of a warrant

is per se unreasonable unless the search falls within a well-delineated exception to

the warrant requirement . . . .” State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618,

620 (1982). The existence of probable cause and exigent circumstances is one such

exception. See State v. Harper, 158 N.C. App. 595, 602, 582 S.E.2d 62, 67 (2003)

(“Generally, warrantless searches are not allowed absent probable cause and exigent

circumstances[.]”). Here, defendant does not challenge the existence of probable

cause, so our review focuses solely on whether exigent circumstances were present.




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                                   Opinion of the Court



      “ ‘[A]n exigent circumstance is found to exist in the presence of an emergency

or dangerous situation.’ ” State v. Stover, 200 N.C. App. 506, 511, 685 S.E.2d 127,

131 (2009) (quoting State v. Frazier, 142 N.C. App. 361, 368-69, 542 S.E.2d 682, 688

(2001)) (quotation marks omitted). The State has the burden of proving that exigent

circumstances necessitated the warrantless entry. Cooke, 306 N.C. at 135, 291 S.E.2d

at 620. Determining whether exigent circumstances exist depends on the totality of

the circumstances. State v. Nowell, 144 N.C. App. 636, 643, 550 S.E.2d 807, 812

(2001), aff’d per curiam, 355 N.C. 273, 559 S.E.2d 787 (2002). Factors considered in

determining whether exigent circumstances exist include, but are not limited to:

             (1) the degree of urgency involved and the time necessary
             to obtain a warrant; (2) the officer’s reasonably objective
             belief that the contraband is about to be removed or
             destroyed; (3) the possibility of danger to police guarding
             the site; (4) information indicating the possessors of the
             contraband are aware that the police are on their trail; and
             (5) the ready destructibility of the contraband.

State v. Wallace, 111 N.C. App. at 586, 433 S.E.2d at 241-42 (1993). In conducting

this analysis, the United States Supreme Court has instructed courts to look to

objective factors, rather than subjective intent. Kentucky v. King, 563 U.S. 452, 464,

131 S. Ct. 1849, 1859 (2011) (quotations, citations, and italics omitted).

      When there is a possibility of danger to police, officers “may conduct a

protective sweep of a residence in order to ensure that their safety is not in jeopardy.”

Stover, 200 N.C. App. at 511, 685 S.E.2d at 132. A protective sweep is reasonable if



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                                  Opinion of the Court



based on “ ‘articulable facts which, taken together with the rational inferences from

those facts, would warrant a reasonably prudent officer in believing that the area to

be swept harbors an individual posing a danger to those on the arrest scene.’ ” State

v. Dial, 228 N.C. App. 83, 87, 744 S.E.2d 144, 148 (2013) (quoting State v. Bullin, 150

N.C. App. 631, 640, 564 S.E.2d 576, 583 (2002)). Furthermore, the North Carolina

Supreme Court has acknowledged, “[t]he immediate need to ensure that no one

remains in the dwelling preparing to fire a yet unfound weapon . . . constitutes an

exigent circumstance which makes it reasonable for the officer to conduct a limited,

warrantless, protective sweep of the dwelling.” State v. Taylor, 298 N.C. 405, 417,

259 S.E.2d 502, 509 (1979).

      Here, the trial court found that officers arrived at defendant’s residence

because of a tip from a reliable informant that “suspects were going to rob a

marijuana plantation that was inside a residence house off of Milton Road[.]” The

informant explained that “at least one of the suspects would be armed with an AK-

47 rifle.” The court also found that during the knock and talk Detective Riggs was

“unaware as to whether a robbery had occurred, was in progress, or was imminent”.

In addition, as soon as defendant opened his door Detective Riggs smelled a strong

odor of marijuana.    Based on the detection of a strong odor of marijuana, and

defendant’s inability to understand English, Detective Riggs made the decision to

enter defendant’s home and secure it in preparation for obtaining a search warrant.



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                                   Opinion of the Court



Given these findings, and the rational inferences which can be drawn from them, an

officer in Detective Riggs’ position could have reasonably believed that there was an

undiscovered dangerous individual within defendant’s home with an AK-47. The

CMPD’s need to ensure that no one remained in the residence carrying an AK-47

constituted an exigent circumstance. See Taylor, 298 N.C. at 417, 259 S.E.2d at 509

(“The immediate need to ensure that no one remains in the dwelling preparing to fire

a yet unfound weapon . . . constitutes an exigent circumstance”). Therefore, Detective

Riggs’ decision to initiate a protective sweep for officer safety was reasonable.

      Furthermore, the ready destructibility of contraband and the belief that

contraband might be destroyed have long been recognized as exigencies which justify

warrantless seizures/entries. Grice, 367 N.C. at 763, 767 S.E.2d at 320. In the

present case, the trial court found that officers were advised that defendant’s

residence contained “a marijuana plantation” with “at least 30 pounds of marijuana

inside[.]” Additionally, the trial court found that when defendant opened the door

the officers immediately smelled a strong odor of marijuana. Given these findings, it

is objectively reasonable to conclude that an officer in Detective Riggs’ position would

have worried that defendant would destroy evidence when he and Detective Messer

left the scene to obtain a search warrant, especially given the ready destructibility of

marijuana.




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                                  Opinion of the Court



      Based on the totality of the circumstances, a dangerous and emergent situation

existed at the time Detective Riggs initiated a protective sweep of defendant’s

residence. Therefore, the trial court did not err in concluding that exigent

circumstances warranted a protective sweep for officer safety and to ensure

defendant or others would not destroy evidence.

                                       III. Conclusion

      The lower court did not err in concluding that the knock and talk carried out

by CMPD officers did not rise to the level of a Fourth Amendment seizure and that

exigent circumstances justified the CMPD’s warrantless entry into defendant’s home.

Its conclusions on these matters were supported by findings of fact in the record and

those findings were based on competent evidence, namely the testimony of CMPD

officers at the hearing on defendant’s motion to suppress. Therefore, we affirm the

trial court’s denial of defendant’s motion to suppress.

      AFFIRMED.

      Judges ELMORE and DIETZ concur.




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