              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-305

                                  Filed: 1 March 2016

Buncombe County, Nos. 13 CRS 396-399, 58561-562, 58627

STATE OF NORTH CAROLINA

             v.

DAVID DWAYNE SMITH, Defendant.


      Appeal by Defendant by writ of certiorari from judgment entered 19 August

2014 by Judge Marvin P. Pope in Buncombe County Superior Court. Heard in the

Court of Appeals 23 September 2015.


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

      Appellate Defender Staples Hughes, by Assistant Appellate Defender Jon H.
      Hunt, for Defendant-Appellant.


      INMAN, Judge.


      A sign on a rural highway advertising pony rides generally prompts nostalgic

thoughts for passing motorists. But a grandfather who noticed such a sign near

Arden, North Carolina, found his interest rewarded with gunfire, followed by a series

of events giving rise to this appeal.

      Defendant David Dwayne Smith (“Defendant”), who resided on the Double “S”

Ranch, was convicted of firing into the grandfather’s occupied vehicle and other

related weapons offenses. He contends that law enforcement officers’ entrance into
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his driveway to investigate the shooting violated his Fourth Amendment protections

against unreasonable searches and seizures, and that the trial court therefore erred

in denying his motion to suppress evidence gathered as a result of that investigation.

After careful review, we affirm the trial court’s ruling because at the time of the

investigation, Defendant had not revoked the implied license for visitors to approach

his home, and the officers’ actions did not exceed the scope of a lawful “knock and

talk.”

                            Factual and Procedural History

         On the afternoon of 30 July 2013, Danny Wilson (“Mr. Wilson”) drove his two

adult children and a family friend to 2516 Hendersonville Road in Arden, where he

had seen a sign advertising “pony rides,” to inquire about a ride for his grandson. The

pony ride sign, which listed a phone number, was located near the edge of

Hendersonville Road and could be seen from the road. Defendant and his wife,

Brenda Smith (“Mrs. Smith”), resided at that address. The property was known as

the Double “S” Ranch.1

         A gate consisting of a piece of wire stock fencing separated Defendant’s

driveway and Hendersonville Road. Mr. Wilson and his passengers (“the Wilsons”)

observed a “No Trespassing” sign affixed to the gate. Mr. Wilson pulled off to the side


         1
         Another sign near the pony rides sign and visible from the highway was labeled “Double ‘S’
Ranch” and advertised “Riding Lessons, Lead-Line Rides and Temp[orary] Boarding.” That sign listed
the same phone number as the pony rides sign. Defendant owns the property jointly with his wife and
other members of her family.

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of Hendersonville Road, just onto Defendant’s driveway but outside the gate, and

dialed the phone number listed on the sign.

       While Mr. Wilson placed the call, the passengers in his car heard a “pop” or

“thump” noise. They observed a white male approximately 100 yards away from the

road, holding what appeared to be a rifle, which they believe the male fired. The

Wilsons left the premises and drove to a store to shop. When they returned to the

car, they noticed a flat or nearly flat tire, so they drove to a tire store. Shortly

thereafter, while the Wilsons were in a restaurant, the manager of the tire store came

and showed them a small-caliber bullet that had been found in the flat tire during

the repair. The tire store manager gave Mr. Wilson the bullet. Mr. Wilson then

contacted the Asheville Police Department, which referred the matter to the

Buncombe County Sheriff’s Office.

      The following day, 31 July 2013, Buncombe County Detectives Walt Thrower

(“Detective Thrower”) and Benjamin McKay (“Detective McKay”) (collectively “the

detectives”) interviewed the Wilsons at Mr. Wilson’s home. In separate interviews,

each of the four witnesses gave the same account of the previous day’s events. The

detectives then went to the tire shop, where they interviewed the manager. Based on

these interviews, the detectives drove to Defendant’s property.

      When they arrived at Defendant’s property, Detective Thrower saw the pony

ride sign and called the number listed to no avail. The gate was open. The detectives



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did not recall observing the “No Trespassing” sign the passengers had reported seeing

the previous day.

         The detectives, who were armed with pistols, put on bulletproof vests bearing

the word “Sheriff” over their plain clothes and called for a uniformed deputy in a

marked patrol car to accompany them onto the property. Once the uniformed deputy

arrived, both the detectives’ car and the marked patrol car drove through the open

gate and onto the driveway leading to Defendant’s residence. The detectives parked

in a parking area beside another vehicle, which was later identified as Defendant’s,

but they stayed in their car because a large dog was running around. The uniformed

deputy remained in his patrol car behind the detectives’ car.

         Defendant came out of the house, which was visible from the driveway, and

spoke with the detectives, who at that time exited their vehicle and remained in the

driveway. During this initial encounter, Defendant denied having any knowledge of

a shooting on his property the previous day. When asked what he had been doing the

day before, Defendant invited the detectives and the deputy to see some animal pens

he was working on behind the house. When they returned to the driveway, the

detectives asked Defendant if he owned any guns. Defendant told them he owned an

“air soft” gun, a non-lethal weapon that shoots plastic pellets. He denied owning a

rifle.




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      Shortly thereafter, Mrs. Smith walked out of the house and spoke to Detective

McKay. She told him that there was a .22 caliber rifle inside the residence. Detective

Thrower asked Defendant for permission to search the residence for the rifle;

Defendant gave his verbal consent.       Subsequently, Detective Thrower drafted a

handwritten consent form, which he asked Mrs. Smith to sign. Mrs. Smith initially

expressed hesitation and asked whether she and Defendant should speak to a lawyer,

but after conferring separately with Defendant, she signed the consent form.

      According to Detective McKay, during the time when Detective Thrower was

drafting the handwritten consent and then speaking separately with Mrs. Smith,

Detective McKay told Defendant, “this [incident] could have been a lot worse because

nobody got hurt,” to which Defendant replied, “[the passengers] didn’t get hurt

because I didn’t mean them to get hurt. I hit what I shot at.” While still in the

driveway, Defendant wrote and signed a statement saying he “aimed at the right

front tire of [Mr. Wilson’s] truck and struck it.”

      Detective McKay searched Defendant’s house and found a .22 caliber rifle with

a scope as well as another shotgun. Detective McKay seized the rifle and then

prepared a handwritten receipt, which Defendant signed.           The detectives and

uniformed deputy then left Defendant’s home. As Detective Thrower was getting into

the car, Defendant commented that Detective Thrower’s bulletproof vest would “only

stop[] up to a .45 [caliber bullet] and that would not do [Detective Thrower] any good.”



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At this time, Defendant was not arrested, confined, advised of his rights, or charged

with a crime. The detectives were present on Defendant’s property for a total of

approximately 40 to 45 minutes.

      After leaving Defendant’s residence, Detective Thrower ran a criminal

background check on Defendant that revealed prior felony convictions from Texas.

Based on Defendant’s convicted felon status and the detectives’ interaction with him,

the detectives applied for a search warrant to retrieve the other gun that Detective

McKay had observed in Defendant’s home. The detectives also obtained an arrest

warrant charging Defendant with various offenses including firing a .22 caliber rifle

into an occupied vehicle in operation and unlawful firearm possession. Based on

Defendant’s criminal history, known possession of a firearm, and his comment to

Detective Thrower about the bulletproof vest (which was perceived as a threat), the

detectives’ supervisors recommended that a SWAT team accompany them to

Defendant’s home to execute the warrants.

      On 1 August 2013, the SWAT team arrived at Defendant’s residence. The

driveway gate was closed. Instead of a “No Trespassing” sign like the one the Wilsons

described seeing on 30 July 2013, there was a sign on the gate warning, “Trespassers

will be shot!!! Survivors will be shot again!!!” The SWAT team drove through the

gate in an armored vehicle. While searching Defendant’s residence, officers found

multiple firearms including a shotgun, a Russian style sniper rifle, and a black



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powder muzzle-loading rifle. At the time the officers were executing the search

warrant, Defendant was arrested by different officers away from his residence.

      On 4 November 2013, Defendant was indicted for the following offenses:

discharging a weapon into an occupied vehicle in operation; possession of a firearm

by felon (three counts); and having attained the status of a habitual felon (three

counts). On 23 June 2014, Defendant filed in Buncombe County Superior Court a

motion to suppress all evidence obtained during the detectives’ first visit to the

property and the evidence procured by the search warrant the following day. Judge

William H. Coward denied Defendant’s motion to suppress.

      On 19 August 2014, before Judge Marvin P. Pope Jr., Defendant pled guilty to

the charged offenses while preserving his right to appeal the denial of the suppression

motion. Defendant was sentenced, as a prior record level III offender, to an active

term of imprisonment lasting from 96 months to 128 months. Defendant gave notice

of appeal in open court.

                                      Analysis

                             I. Appellate Jurisdiction

      As an initial matter, we must address the issue of whether appellate

jurisdiction exists over Defendant’s appeal. Rule 4 of the North Carolina Rules of

Appellate Procedure provides that a defendant may appeal a judgment or order




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rendered in a criminal action by giving oral notice of appeal at trial. N.C. R. App. P.

4(a).

        On 20 August, the day after Defendant pled guilty to the charged offenses,

Defendant’s trial counsel gave oral notice of appeal, stating that Defendant was

“giving notice of appeal in court to the North Carolina Court of Appeals of the denial

of the suppression motion.” Because Defendant’s trial counsel did not state that

Defendant was appealing from the judgment of conviction, but only from the

suppression motion, the notice of appeal was deficient. See State v. Miller, 205 N.C.

App. 724, 725, 696 S.E.2d 542, 542 (2010) (“Defendant has failed to appeal from the

judgment of conviction and our Court does not have jurisdiction to consider

Defendant's appeal.”). Recognizing the deficiency in his notice of appeal, Defendant

filed a petition for writ of certiorari asking this Court to review the 20 August 2014

judgment of conviction. The State concedes that “it is clear that [D]efendant was

attempting to notice his appeal of the judgment.” In light of the fact Defendant

intended to appeal the judgment, we exercise our discretion and allow the petition

for writ of certiorari. See N.C. R. App. P. 21(a)(1); see also State v. McCoy, 171 N.C.

App. 636, 638, 615 S.E.2d 319, 320 (2005) (“While this Court cannot hear defendant's

direct appeal [for failure to properly give notice of appeal], it does have the discretion

to consider the matter by granting a petition for writ of certiorari.”).

                               II. Motion to Suppress



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

following pertinent conclusions:

             14. After considering and weighing these factors, this court
             concludes that the curtilage of Defendant’s house did not
             extend to the gate.

             15. The Court further concludes that the curtilage did not
             extend into the driveway, where the detectives initiated
             their investigations, and generally where the interactions
             of the parties occurred.

             16. Even if the curtilage can be extended out into the open
             driveway area, the Court concludes that the actions of the
             detectives and the deputy were the equivalent of a “knock
             and talk” encounter and did not violate the Fourth
             Amendment.

      Defendant challenges the trial court’s conclusion that “the actions of the

detectives and deputy were the equivalent of a ‘knock and talk’ encounter and did not

violate the Fourth Amendment.” Specifically, Defendant contends the investigation

was unlawful because the detectives had no implied license to enter Defendant’s

property and because the detectives exceeded the general inquiry within the limits of

a lawful “knock and talk.” Defendant also challenges the trial court’s conclusion that

“the curtilage did not extend into the driveway, where the detectives initiated their

investigations, and generally where the interactions of the parties occurred.” We

reject Defendant’s arguments and hold that the detectives did not violate the Fourth




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Amendment in entering Defendant’s property by way of his driveway to ask questions

about the previous day’s shooting.

      In our review of trial court orders addressing motions to suppress,

             the trial court’s findings of fact are conclusive on appeal if
             supported by competent evidence, even if the evidence is
             conflicting. This Court must not disturb the trial court’s
             conclusions if they are supported by the trial court’s factual
             findings. However, the trial court’s conclusions of law are
             fully reviewable on appeal.

State v. Harwood, 221 N.C. App. 451, 454–55, 727 S.E.2d 891, 895–96 (2012) (internal

quotation marks and citations omitted).

      The Fourth Amendment protects “[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 Fourth Amendment indicates with some precision the

places and things encompassed by its protections: persons, houses, papers, and

effects.” Florida v. Jardines, 569 U.S. __, __,185 L. Ed. 2d 495, 501 (2013) (internal

quotation marks and citations omitted). “At the very core [of the Fourth Amendment]

stands the right of a man to retreat into his own home and there be free from

unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505,

511, 5 L. Ed. 2d 734, 739 (1961).

      The United States Supreme Court has articulated two tests for assessing a

search under the Fourth Amendment: the reasonable expectation of privacy test

based on Justice Harlan's concurrence in Katz v. United States, 389 U.S. 347, 360, 19


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L. Ed. 2d 576, 587 (1967), and the “trespassory test” employed in United States v.

Jones, 565 U.S. __, __,181 L. Ed. 2d 911, 920–21 (2012), and Jardines, 569 U.S. at __,

185 L. Ed. 2d at 503–04.

      In Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, the Supreme

Court held that the government conduced an unreasonable Fourth Amendment

search by placing an electronic listening device outside of a public telephone booth.

“As Justice Harlan’s oft-quoted concurrence [in Katz] described it, a Fourth

Amendment search occurs when the government violates a subjective expectation of

privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27,

33, 150 L. Ed. 2d 94, 101 (2001).

      In Jones, the Supreme Court held that the government’s installation of a GPS

device on a target’s vehicle and use of the GPS device to monitor the vehicle's

movements constituted a Fourth Amendment search. 565 U.S. at __, 181 L. Ed. 2d at

919. Noting that “our Fourth Amendment jurisprudence was tied to common-law

trespass, at least until the latter half of the 20th century[,]” id. at __, 181 L. Ed. 2d.

at 918, the Jones Court held that “the Katz reasonable-expectation-of-privacy test has

been added to, not substituted [by], the common-law trespassory test.” Id. at __, 181

L. Ed. 2d at 921. In Jardines, 569 U.S. at __, 185 L. Ed. 2d at 502, the Supreme Court

held that law enforcement officers’ use of a drug-sniffing dog on the front porch of a

home to investigate a tip that marijuana was being grown inside was a physical



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intrusion of the curtilage which constituted a “search” for Fourth Amendment

purposes. The Supreme Court explained that officers “gathered that information by

physically entering and occupying the area to engage in conduct not explicitly or

implicitly permitted by the homeowner.” Id. at __, 185 L. Ed. 2d at 502. The Supreme

Court held that there is an implied license for visitors to “approach the home by the

front path, knock promptly, wait briefly to be received, and then (absent invitation to

linger longer) leave.” Id. A police officer, like any other private citizen, may accept

this implied invitation and approach the home by the front path. Id.

      Accordingly, in 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. See State v. Tripp, 52 N.C. App. 244, 249, 278 S.E.2d 592, 596

(1981) (“Law enforcement officers have the right to approach a person's residence to

inquire as to whether the person is willing to answer questions.”) (internal citations

omitted); see also State v. Church, 110 N.C. App. 569, 573–74, 430 S.E.2d 462, 465

(1993) (“[W]hen officers enter private property for the purpose of a general inquiry or

interview, their presence is proper and lawful . . . . [O]fficers are entitled to go to a

door to inquire about a matter; they are not trespassers under these circumstances.”)

(internal quotation marks and citation omitted).

                                 A. Implied License




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      Defendant argues that the “No Trespassing” sign on his gate “expressly

removed” the implied license to approach his home, and thus “any information

gathered by the officers following their warrantless entry onto the property should

[have been] suppressed.” We disagree because the sign alone, particularly in the

context of other relevant facts, was insufficient to revoke the implied license to

approach.

      As recognized by Jardines, the implied license to approach a home is not

absolute.   State v. Grice, 367 N.C. 753, 762, 767 S.E.2d 312, 319 (2015) (citing

Jardines, 569 U.S. at __, 185 L. Ed. 2d at 502). Provided that the homeowner displays

“clear demonstrations” of his intent, the license to approach the home may be limited

or rescinded entirely. Id. The dispositive question is whether, at the time of the

approach by law enforcement officers, Defendant had made the requisite “clear

demonstration” that the license to enter his property has been rescinded. Id.

      Prior to Jardines, this Court held that the presence of a “No Trespassing” sign

on its own is not dispositive for Fourth Amendment analysis. State v. Pasour, 223

N.C. App. 175, 178–79, 741 S.E.2d 323, 326 (2012) (“Further, while not dispositive, a

homeowner’s intent to keep others out . . . may be demonstrated by the presence of

‘no trespassing’ signs.”). Moreover, while a few jurisdictions in the wake of Jardines

have reached mixed results in interpreting when and how revocation may occur, we

are not aware of any court that has ruled that a sign alone was sufficient to revoke



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the implied license to approach. See, e.g., United States v. Bearden, 780 F.3d 887,

893–94 (8th Cir. 2015) (“knock and talk” upheld where officers entered property

through open driveway gate marked with “No Trespassing” signs); United States v.

Denim, No. 2:13-CR-63, 2013 WL 4591469, at *2–6 (E.D. Tenn. Aug. 28, 2013) (six

“No Trespassing” signs not sufficient to revoke implied license). Courts in other

jurisdictions have ruled that the implied invitation to approach was revoked by

homeowners who sought refuge behind a large, imposing fence and made clear by

either verbal or posted instructions that visitors were not welcome. See Bainter v.

State, 135 So.3d 517, 519 (Fla. 5th DCA 2014) (license revoked by presence of six foot

chain link gate within barbed wire fence, accompanied by “No Trespassing” signs);

Brown v. State, 152 So.3d 619, 622–24 (Fla. 3d DCA 2014) (license revoked by

presence of two concentric chain link fences around property, “No Trespassing” signs

on outer fence, and verbal request to leave by owner); Robinson v. State, 164 So.3d

742, 742–44 (Fla. 2d DCA 2015) (license revoked by closed chain-link fence bearing

both “No Trespassing” and “Beware of Dog” signs).

      Here, it is not established that Defendant consistently displayed a “No

Trespassing” sign on his property. While the trial court found that there was indeed

such a sign present on 30 July, the trial court did not find that the sign was present

on 31 July, the day law enforcement officers first visited the property.




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        Moreover, there is no evidence that Defendant took consistent steps to

physically prevent visitors from entering the property. The “gate” consisted of wire

mesh stretched across two poles on either side of the driveway. At no time during the

initial encounter with the Wilsons or the investigation into the shooting did this gate

bear a lock or any other form of locking mechanism. While the gate was closed when

the Wilsons approached on 30 July, it was open when the detectives arrived on 31

July.

        Finally, Defendant’s conduct upon the detectives’ arrival belied any notion that

their approach was unwelcome. When the detectives and the uniformed deputy

entered his driveway, Defendant emerged from his home and “greeted the detectives

and deputy,” and after an initial conversation about the shooting incident, Defendant

“voluntarily led the detectives and the deputy around to the rear of the residence”

where they discussed Defendant’s work (building animal pens), the weapons he

owned (putatively an “air-soft” gun), and his livestock. Thus, rather than avoiding

the detectives, which he was entitled to do, or requesting that they leave his property,

Defendant engaged them in what the record reflects was a calm, civil discussion.

Defendant’s actions therefore did not reflect a “clear demonstration” of an intent to

revoke the implied license to approach.

                    B. Scope and Purpose of “Knock and Talk”




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      Defendant contends the “knock and talk” was not lawful because the detectives’

actions exceeded the scope of a general inquiry. We disagree.

      Generally, “[i]t is well established that entrance by law enforcement officers

onto private property for the purpose of a general inquiry or interview is proper.”

State v. Gentile, __ N.C. App. __, __,766 S.E.2d 349, 353 (2014). “[T]he scope of a

license is limited not only to a particular area but also to a specific purpose.”

Jardines, 569 U.S. at __, 185 L. Ed. 2d at 499.

      On 31 July, after speaking with the Wilsons and the manager of the tire store,

the detectives entered Defendant’s property to inquire about the reported shooting

the prior day.   Because they were investigating a shooting, the detectives wore

bulletproof vests and were accompanied by a marked patrol car and uniformed

deputy. The detectives and deputy drove in daylight through Defendant’s open gate

and onto his driveway.     The detectives’ vests, worn over their clothing, plainly

displayed the word “Sheriff” and they made no attempt to conceal the fact that they

were law enforcement officers. In fact, when Defendant came out of his house and

greeted the detectives in the driveway, they identified themselves and showed

Defendant their badges.

      Unlike the facts of Jardines, 569 U.S. at __, 185 L. Ed. 2d at 502–03, in which

officers introduced a trained police dog to explore the area beyond the home without

the resident’s consent, the detectives’ actions in the present case did not reflect any



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purpose beyond basic questioning. The detectives only departed from Defendant’s

driveway and ventured further onto his property after Defendant expressly invited

them to the rear of his house to see his animal pens. The detectives entered the home

only after Mrs. Smith stated that there was, in fact, a rifle in the home and after

receiving consent from both Defendant and Mrs. Smith. Defendant did not request

that the officers leave his property at any time. Moreover, the detectives’ questions

regarding whether there were guns in Defendant’s home were both reasonable and

germane to the purpose of the visit, which was to make a general inquiry about a

reported shooting on the property.

                                     C. Curtilage

      Defendant challenges the trial court’s conclusion that “the curtilage did not

extend into the driveway, where the detectives initiated their investigations, and

generally where the interactions of the parties occurred.” Defendant contends that

“[h]ad the trial court properly concluded that the areas immediately around

[Defendant’s] home were within the curtilage, [Defendant] would have been afforded

the Fourth Amendment protections which were his due. The detectives’ unlawful

entry into and through [Defendant’s] curtilage would have, therefore, violated the

Fourth Amendment.” We disagree.

      This issue relates to the expectation-of-privacy theory of Fourth Amendment

jurisprudence. “Because an individual ordinarily possesses the highest expectation



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of privacy within the curtilage of his home, that area typically is afforded the most

stringent Fourth Amendment protection.” State v. Lupek, 214 N.C. App. 146, 151,

712 S.E.2d 915, 919 (2011) (internal quotation marks and citations omitted). “[T]he

curtilage is the area to which extends the intimate activity associated with the

sanctity of a man's home and the privacies of life, and therefore has been considered

part of home itself for Fourth Amendment purposes.” Oliver v. United States, 466

U.S. 170, 180, 80 L. Ed. 2d 214, 225 (1984) (internal citation and quotation marks

omitted).2 However, our Court has held:

                [N]o 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. It is well established that entrance by law
                enforcement officers onto private property for the purpose
                of a general inquiry or interview is proper.

Gentile, __ N.C. App. at __, 766 S.E.2d at 353 (internal quotation marks and citations

omitted).

        Here, the trial court concluded that, “[e]ven if the curtilage can be extended

out into the open driveway area . . . the actions of the detectives and deputy were the

equivalent of a ‘knock and talk’ encounter and did not violate the Fourth

Amendment.” The trial court found that “[t]he Smith property is traversed by a




        2 The protection afforded to curtilage under the privacy interest of Fourth Amendment is
determined by looking at four factors: “[1] the proximity of the area claimed to be curtilage to the home,
[2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses
to which the area is put, and [4] the steps taken by the resident to protect the area from observation
by people passing by.” United States v. Dunn, 480 U.S. 294, 301, 94 L. Ed. 2d 326, 334–35 (1987).

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private, unpaved driveway off of Hendersonville Road, which leads to the ‘Smith

House.’” The driveway served as an access route to the front door, an area detectives

were lawfully able to approach to conduct a “knock and talk.” See Grice, 367 N.C. at

761, 767 S.E.2d at 318 (“The officers in this case were, by the custom and tradition of

our society, implicitly invited into the curtilage to approach the home.”). By entering

the gate and driving down the driveway, the detectives and deputy did not deviate

from the area where their presence was lawful, and thus, did not violate the Fourth

Amendment.

                                    Conclusion

      Because law enforcement officers did not violate Defendant’s rights protected

by the Fourth Amendment, we affirm the trial court’s order denying the motion to

suppress.

      AFFIRMED.

      Judges CALABRIA and STROUD concur.




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