              IN THE SUPREME COURT OF NORTH CAROLINA
                                   No. 368PA13
                             Filed 19 December 2014

STATE OF NORTH CAROLINA

             v.
MICHAEL PAUL MILLER



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous

decision of the Court of Appeals, ___ N.C. App. ___, 746 S.E.2d 421 (2013), reversing

judgments entered on 23 May 2011 by Judge Joseph N. Crosswhite in Superior

Court, Rowan County, and remanding the case to the trial court to resolve a conflict

in the evidence relating to defendant’s motion to suppress and for additional

proceedings. Heard in the Supreme Court on 8 September 2014.


      Roy Cooper, Attorney General, by Martin T. McCracken and Teresa Postell,
      Assistant Attorneys General, for the State-appellant.

      Staples S. Hughes, Appellate Defender, by Kathleen M. Joyce, Assistant
      Appellate Defender, for defendant-appellee.


      HUNTER, Justice.


      A police dog’s instinctive action, unguided and undirected by the police, that

brings evidence not otherwise in plain view into plain view is not a search within

the meaning of the Fourth Amendment to the United States Constitution or Article

I, Section 20 of the North Carolina Constitution.
                                 STATE V. MILLER

                                 Opinion of the Court



                                          I

      In May 2009, the Spencer Police Department received a burglar alarm report

indicating a possible break-in at defendant Michael Paul Miller’s residence. Officer

Brian Hill was the first officer to arrive at the scene. Officer Hill surveyed the

exterior of the home and noticed a broken window on the back side of the house

having an opening large enough for a person to gain entry into the residence. The

doors of the residence were locked. Concerned that an intruder was in the house,

Officer Hill called for backup and the assistance of a canine officer to perform a

protective sweep.

      Shortly thereafter, additional backup arrived, including Officer Jason Fox

and his police dog, “Jack.” Officer Hill explained the situation to Officer Fox and

the two began discussing how to proceed next. As the officers were preparing to

search the home, defendant’s mother, Ms. Gwen Weant, arrived at the scene with a

key to the house.    She gave Officer Hill and Officer Fox the key, as well as

permission to search the premises for intruders.

      Officer Fox began the search by deploying Jack inside the house. At Officer

Fox’s command, Jack began methodically working his way through the house

searching for intruders.   Jack went from room to room until he reached a side

bedroom, where he remained. Officer Fox, fearing for Jack’s safety, entered the

house and went to the bedroom to investigate. Jack was sitting on the bedroom

floor staring at a dresser drawer, thereby alerting Officer Fox to the presence of


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narcotics. Officer Fox opened the drawer and discovered a brick of marijuana. He

then called for Officer Hill, who also observed the drugs.      Leaving the brick of

marijuana undisturbed, Officer Fox, Officer Hill, and Jack continued their

protective sweep of the house.   As Jack neared the back of the house, he stopped in

front of a closet at the end of the main hallway and began barking at the closet door,

this time alerting Officer Fox to the presence of a human suspect behind the closet

door.   Unlike the passive sit and stare alert that Jack used to signal for the

presence of narcotics, Jack was trained to bark to signal the presence of human

suspects. Officer Fox and Officer Hill drew their firearms and opened the closet

door, revealing two large black trash bags on the closet floor. No intruder was

found in the closet.

        Each officer characterized the ensuing events somewhat differently at a later

hearing held on defendant’s motion to suppress. Officer Hill testified that as soon

as they opened the closet door, he could see marijuana in the opening of the trash

bags and that the marijuana was plainly visible. Officer Fox initially testified that

he could see what appeared to be marijuana inside a partially opened bag and that

he did not manipulate the bag in any way at that time.                But later, on

cross-examination he testified that as soon as they opened the closet door, Jack

“immediately” stuck his nose inside one of the trash bags and nuzzled the bag open;

Officer Fox then indicated that the marijuana was visible to him only after Jack

nuzzled the bag open.


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        The officers did not immediately seize the marijuana. Instead, they finished

their protective sweep of the house, still finding no intruders, and locked and

secured the residence. Defendant arrived at the scene shortly thereafter, and, after

questioning from Officer Hill, disclosed that a gun was in his vehicle. The handgun

was immediately seized. Based on the information gathered by Officers Hill and

Fox during their initial sweep, Sergeant Eric Ennis, an investigator for the Spencer

Police Department, applied for a search warrant to recover the drugs observed in

defendant’s residence.   When the search warrant arrived, the officers reentered

defendant’s home and seized the drugs.

        Defendant was subsequently indicted on charges of possession with the

intent to sell or deliver   marijuana, maintaining a dwelling house for keeping,

storing, using or selling marijuana, and carrying a handgun concealed in his

vehicle. At a preliminary hearing, defendant moved to suppress all evidence seized

during the search of his house, arguing that the search and seizure violated his

rights under the Fourth Amendment to the United States Constitution and Article

I, Section 20 of the North Carolina Constitution.

        After considering the testimonies of Officer Hill, Officer Fox, and Sergeant

Ennis, as well as other documentary exhibits offered into evidence, the trial court

entered an order granting defendant’s motion in part and denying the motion in

part.   With respect to the brick of marijuana seized from defendant’s dresser

drawer, the trial court found that “the officers deviated from the . . . search [for


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intruders] when they opened” the drawer. Consequently, the trial court found that

defendant’s constitutional rights were violated by that action and ordered that this

evidence be suppressed; however, with respect to the marijuana seized from the

trash bags in the hall closet, the trial court denied defendant’s motion. The trial

court recognized the conflict between the testimonies of Officers Hill and Fox

regarding whether the marijuana was in plain view before Jack nuzzled into the

trash bag, but, rather than resolving the conflict, summarily found that the

discovery of the marijuana in the closet did not violate defendant’s constitutional

rights. Defendant entered an Alford plea of guilty to all charges while reserving the

right to appeal the trial court’s decision allowing the marijuana seized from the

closet into evidence. Defendant then appealed the order and subsequent judgments

to the Court of Appeals.

      The Court of Appeals reversed the judgments and remanded the case to the

trial court for further proceedings. State v. Miller, ___ N.C. App. ___, 746 S.E.2d

421 (2013).   Citing Arizona v. Hicks, 480 U.S. 321, 324-25 (1987), the Court of

Appeals concluded that “Jack was an instrumentality of the police, and his actions,

regardless of whether they are instinctive or not, are no different than those

undertaken by an officer. If he opened the bags and exposed the otherwise hidden

marijuana, it would not be admissible under the plain view doctrine.” Miller, ___

N.C. App. at ___, 746 S.E.2d at 427. In reaching its holding, the Court of Appeals

rejected persuasive precedent from two federal circuit courts of appeal that had


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rejected Fourth Amendment challenges by defendants under analogous factual

circumstances. Id. at ___, 746 S.E.2d at 426; see United States v. Reed, 141 F.3d

644, 650 (6th Cir. 1998); United States v. Lyons, 957 F.2d 615, 617 (8th Cir. 1992).

But, because the trial court failed to resolve in its order whether the marijuana was

in plain view without Jack’s nuzzling of the bags, the Court of Appeals remanded

the question to the trial court with instructions to suppress the evidence if the trial

court found that Jack brought the marijuana into plain view. Miller, ___ N.C. App.

at ___, 746 S.E.2d at 427.

       On a petition for discretionary review to this Court, we ordered briefing and

argument on the following question submitted by the State:          “Did the Court of

Appeals err by holding that the canine was an instrumentality of the police and his

actions, whether instinctive or not, are no different than those undertaken by an

officer?”

       As formulated, the question presented focuses on two discrete inquiries: (1)

whether Jack was an instrumentality of the police, and (2) whether Jack’s actions

are analytically different under the Fourth Amendment or Article I, Section 20 from

similar actions performed by the police.        With respect to the first inquiry, the

“instrumentality” question implies that a material issue in this case is whether

Jack was a State actor for the purpose of invoking the Fourth Amendment. We note

that a police dog assisting officers in the search of a home for intruders is clearly

acting as an instrumentality of the police. See Coolidge v. New Hampshire, 403 U.S.


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443, 487 (1971) (concluding that instruments and agents of the State are State

actors for Fourth Amendment purposes), abrogated in part on other grounds by

Horton v. California, 496 U.S. 128 (1990). Therefore, whether Jack was a State

actor is not the issue here. Rather, the dispositive issue in this case is whether

Jack’s actions are analytically different under the Fourth Amendment or Article I,

Section 20 from similar actions performed by the police. Stated precisely, we must

decide whether a police dog’s instinctive action, unguided and undirected by the

police, that brings evidence not otherwise in plain view into plain view is a search

within the meaning of the Fourth Amendment or Article I, Section 20 of the North

Carolina Constitution.

                                         II

      The Fourth Amendment states in pertinent part that the “right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S. Const. amend. IV. Our State’s

analogous constitutional provision, Article I, Section 20, declares that “[g]eneral

warrants, whereby any officer or other person may be commanded to search

suspected places without evidence of the act committed, or to seize any person or

persons not named, whose offense is not particularly described and supported by

evidence, are dangerous to liberty and shall not be granted.” N.C. Const. art. I,

§ 20. In construing these analogous provisions together, we have held that nothing

in the text of Article I, Section 20 calls for broader protection than that of the


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Fourth Amendment. State v. Garner, 331 N.C. 491, 506-07, 417 S.E.2d 502, 510

(1992). Accordingly, our Article I, Section 20 jurisprudence generally comports with

the Supreme Court of the United States’ interpretation of the Fourth Amendment.

                                            A

      Man’s best friend is no stranger to Fourth Amendment jurisprudence. The

Supreme Court of the United States has decided several cases involving police dog

sniffs that indicate the extent to which police may use these four-legged

crime-fighters without running afoul of constitutional safeguards. In United States

v. Place, 462 U.S. 696, 707 (1983), the Court concluded that a dog sniff of a person’s

luggage in a public place (an airport) is not a “search” within the meaning of the

Fourth Amendment.       In reaching its decision, the Court acknowledged that “a

person possesses a privacy interest in the contents of personal luggage,” but

supported its conclusion by noting that a dog sniff for the purpose of identifying the

presence of narcotics is “sui generis,” that is, unique in the sense that “the sniff

discloses only the presence or absence of narcotics, a contraband item.”           Id.

Focusing on the intrusiveness of the dog’s action, the Court stated that a dog sniff

for narcotics conducted in a public place

             does not expose noncontraband items that otherwise
             would remain hidden from public view, as does, for
             example, an officer’s rummaging through the contents of
             the luggage. . . . Thus, despite the fact that the sniff tells
             the authorities something about the contents of the
             luggage, the information obtained is limited. This limited
             disclosure also ensures that the owner of the property is


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             not subjected to the embarrassment and inconvenience
             entailed in less discriminate and more intrusive
             investigative methods.

Id. By drawing a contrast between a “canine sniff” and other conduct that may

“expose noncontraband items that otherwise would remain hidden from public

view,” the Court in Place limited its permissive holding to sniffs that can reveal no

more than the presence of contraband.

      The applicability of the holding in Place in other factual contexts has since

been confirmed in City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000), and

Illinois v. Caballes, 543 U.S. 405, 408-10 (2005). In Edmond the Court stated that a

dog sniff of the exterior of a vehicle stopped at a highway checkpoint “does not

transform the seizure into a search.” 531 U.S. at 40 (citing Place, 462 U.S. at 707).

The Court explained, “Just as in Place, an exterior sniff of an automobile does not

require entry into the car and is not designed to disclose any information other than

the presence or absence of narcotics.” Id. In Caballes the Court observed that “[a]

dog sniff conducted during a concededly lawful traffic stop that reveals no

information other than the location of a substance that no individual has any right

to possess does not violate the Fourth Amendment.” 543 U.S. at 410. The Court

reasoned that “any interest in possessing contraband cannot be deemed ‘legitimate,’

and thus, governmental conduct that only reveals the possession of contraband

‘compromises no legitimate privacy interest.’ ” Id. at 408 (citation omitted). Taken




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together, these cases stand for a generally permissive view of public dog sniffs

under the Fourth Amendment.

      Nonetheless, insofar as Place, Edmond, and Caballes encourage police to

utilize dog sniffs in the public sphere, the Court’s recent decision in Florida v.

Jardines, 133 S. Ct. 1409 (2013), places police on a much shorter leash when

employing dog sniffs in and around the home.            In Jardines police brought a

drug-sniffing dog onto the defendant’s front porch, where the dog alerted to the

presence of narcotics at the defendant’s front door. Id. at 1413. Police used the

dog’s positive alert to obtain a warrant to search the residence for narcotics. Id.

Delivering the opinion of the Court, Justice Scalia emphasized that “the officers

learned what they learned only by physically intruding on Jardines’ property to

gather evidence,” which “is enough to establish that a search occurred.” Id. at 1417.

Noting that the home is “first among equals” when it comes to the Fourth

Amendment, id. at 1414, the Court stated that “[t]he government’s use of trained

police dogs to investigate the home and its immediate surroundings is a ‘search’

within the meaning of the Fourth Amendment,” id. at 1417-18.

      While each of these cases is instructive on the question presented here, each

falls short of being determinative. First, unlike the abovementioned cases, Jack’s

action here is not properly classified as a dog “sniff,” but rather a dog “nuzzle.”

While Jack likely sniffed the marijuana in defendant’s closet, it is his nuzzling of

the trash bags that has triggered the Fourth Amendment inquiry at issue here.


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Second, although Jack was in the privacy of defendant’s home when he nuzzled the

bags, the exigency of the situation meant that the officers and Jack were lawfully in

the house and in front of the open closet searching for intruders.

      Although the case did not involve a dog, the Court of Appeals believed that

Arizona v. Hicks was determinative of the question presented by defendant’s Fourth

Amendment challenge.       In Hicks a bullet was fired through the floor of the

defendant’s apartment, injuring a man in the apartment below. 480 U.S. at 323.

Police entered the defendant’s apartment to search for the shooter, for other

victims, and for weapons.     Id.    During the search, one of the officers noticed

expensive stereo equipment that “seemed out of place in the squalid and otherwise

ill-appointed four-room apartment.” Id. The officer read and recorded the serial

numbers of the items, moving some of the equipment to do so.               Id.     Upon

confirmation that the items were stolen, the equipment was seized.               Id.   In

analyzing whether the officer’s movement of the equipment to read the serial

numbers constituted a Fourth Amendment search, the Court stated that

             taking action, unrelated to the objectives of the
             authorized intrusion, which exposed to view concealed
             portions of the apartment or its contents, did produce a
             new invasion of [the defendant’s] privacy unjustified by
             the exigent circumstance that validated the entry. . . . It
             matters not that the search uncovered nothing of any
             great personal value to [the defendant]—serial numbers
             rather than (what might conceivably have been hidden
             behind or under the equipment) letters or photographs. A
             search is a search, even if it happens to disclose nothing
             but the bottom of a turntable.


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Id. at 325.

      Analogizing the officer’s actions in Hicks to Jack’s actions here, the Court of

Appeals determined that Jack’s nuzzling of the bags was an action “ ‘unrelated to

the objectives of the authorized intrusion’ ” that created “ ‘a new invasion of

[defendant’s] privacy unjustified by the exigent circumstance that validated the

entry.’ ” Miller, ___ N.C. App. at ___, 746 S.E.2d at 427 (quoting Hicks, 480 U.S. at

325). To bridge the gap between an officer’s action in Hicks and a dog’s action here,

the Court of Appeals stated, without authority, that “Jack was an instrumentality

of the police, and his actions, regardless of whether they are instinctive or not, are

no different than those undertaken by an officer.” Id. at ___, 746 S.E.2d at 427.

The problem with this analogy, however, is that Jack’s actions are different from

the actions of an officer, particularly if the dog’s actions were instinctive,

undirected, and unguided by the police.

                                           B

      Several federal circuit courts of appeal have recognized the distinction

between an officer’s actions and the instinctive actions of a police dog, albeit in

imprecise terms. See, e.g., United States v. Sharp, 689 F.3d 616, 618-20 (6th Cir.),

cert. denied, 133 S. Ct. 777 (2012); United States v. Pierce, 622 F.3d 209, 212-15 (3d

Cir. 2010); United States v. Vazquez, 555 F.3d 923, 930 (10th Cir.), cert. denied, 558

U.S. 903 (2009); Lyons, 957 F.2d at 616-17. The most common factual scenario



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encountered in the federal circuits has occurred when a lawful traffic stop takes

place; a police dog is used to perform a sniff around the exterior of the vehicle; and

the dog, without prompting, jumps into an open window or door and alerts to the

presence of narcotics inside the suspect’s car. For example, in one of the first cases

to address this type of situation, United States v. Stone, 866 F.2d 359 (10th Cir.

1989), a police dog jumped into a vehicle’s hatchback that had been opened by the

defendant during a traffic stop. Id. at 361. The court stated that “[e]ven though the

police could use a trained dog to sniff the exterior of Stone’s automobile, the dog

created a troubling issue under the Fourth Amendment when it entered the

hatchback.” Id. at 363. The court acknowledged that people have an expectation of

privacy in the interiors of their automobiles, id., but concluded that “the dog’s

instinctive actions did not violate the Fourth Amendment,” id. at 364. The Court

reasoned that

             [t]here is no evidence, nor does Stone contend, that the
             police asked Stone to open the hatchback so the dog could
             jump in. Nor is there any evidence the police handler
             encouraged the dog to jump in the car. . . . In these
             circumstances, we think the police remained within the
             range of activities they may permissibly engage in when
             they have reasonable suspicion to believe an automobile
             contains narcotics.

Id. The rule of the case has since been articulated clearly by the Sixth Circuit in

Sharp:    “[A] dog’s instinctive jump into a car does not violate the Fourth

Amendment as long as the canine enters the vehicle on its own initiative and is



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neither encouraged nor placed into the vehicle by law enforcement.” 689 F.3d at

619 (citations omitted). In defining what an “instinctive” act is, Sharp noted that “

‘instinctive implies the dog enters the car without assistance, facilitation, or other

intentional action by its handler.’ ” Id. (quoting Pierce, 622 F.3d at 214). When

there is, however, a desire by law enforcement to facilitate a dog sniff in the interior

of the vehicle, the Fourth Amendment is implicated. See, e.g., United States v.

Winningham, 140 F.3d 1328, 1330-31 (10th Cir. 1998) (affirming the lower court’s

decision invalidating a search when “the officers themselves opened the door,

allowing the van to sit on the side of the highway with the sliding door wide open

for a period of at least six minutes until the drug dog could arrive . . . [and] then

unleashed the dog as the dog neared the open door”).

      The federal circuit court cases that are close to being on all fours with respect

to the instant case are United States v. Reed and United States v. Lyons. In Reed, a

Sixth Circuit decision, police responded to a possible break-in at the defendant’s flat

and called in a canine unit to perform a protective sweep for intruders. 141 F.3d at

646. “Cheddy,” the police dog tasked with performing the search, was trained to

alert for narcotics and intruders upon command.            Id. at 647.     After being

commanded to search for intruders (not for drugs),

             Cheddy entered the master bedroom, and alerted on a
             dresser by scratching at the right-hand dresser drawers.
             [The officer], upon hearing the commotion, entered the
             master bedroom. Although it is unknown whether the
             dresser drawers were open before Cheddy entered the


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             room, apparently the dog had knocked the top drawer off
             its runners and into the second drawer, which was also
             open. . . . [The officer] pulled the dog away, and noticed a
             bag of cocaine plainly visible in his bright mag-light
             beam.

Id. Citing, inter alia, Stone, the court determined that “there was no illegal search

in this instance, even assuming that Cheddy moved the drawers . . . because the

movement of the drawers, if any, would have been occasioned by Cheddy’s

instinctive reactions to the nature of the contraband.” Id. at 650.

      In Lyons police were called to the airport to investigate a suspicious package

addressed to the defendant. 957 F.2d at 615-16. “Grady,” the trained police dog

tasked with sniffing the package, suddenly and without prompting, “became

agitated and tore the package in two, spewing the contents on the floor.         The

contents were white chunks which the police then field tested and determined to be

cocaine.”   Id. at 616.   Also citing Stone, the Eighth Circuit Court of Appeals

concluded that “[w]ithout misconduct by the police, the mere fact that the dog tore

the package does not constitute a ‘search.’ ” Id. at 617.

      Lyons is a model of precision insofar as it clearly asserts the doctrinal

foundation for its holding—that the dog’s instinctive actions did not constitute a

Fourth Amendment search. Id.; see also Pierce, 622 F.3d at 214-15 (“[W]e apply the

considerable body of jurisprudence examined above to conclude that [the dog’s]

interior sniffs, as a natural migration from his initial exterior sniffs, did not

constitute a search requiring a warrant or probable cause.”). Yet, Lyons and similar


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cases that purport to be decided on search grounds do not engage in a prototypical

search analysis (by referring to the Supreme Court’s search cases and doctrine) and

fail to fully articulate why a dog’s instinctive, undirected, and unguided action does

not constitute a Fourth Amendment search.

                                           C

      The determinative question in the instant case is therefore: Whether a police

dog’s instinctive action, unguided and undirected by the police, that brings evidence

not otherwise in plain view into plain view is a search within the meaning of the

Fourth Amendment. Nipping at the heels of near uniformity in the federal circuit

courts that have addressed the issue in strictly “search” terms, we hold that such

action is not a search.

      We reach this holding fully aware that what constitutes a “search” within the

meaning of the Fourth Amendment has expanded in recent years, beginning with

the Supreme Court’s decision in United States v. Jones, 132 S. Ct. 945 (2012).

Before Jones, the Court’s decision in Katz v. United States, 389 U.S. 347 (1967), and

its progeny defined a Fourth Amendment search in terms of one’s “reasonable” or

“legitimate” expectation of privacy. See generally 1 Wayne R. LaFave, Search and

Seizure: A Treatise on the Fourth Amendment § 2.1 (5th ed. 2012).           The test

articulated by the Court for determining whether a Fourth Amendment search

occurred under the Katz line of cases is (1) whether “the individual manifested a

subjective expectation of privacy in the object of the challenged search,” and (2)


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whether “society is willing to recognize that expectation as reasonable.” Kyllo v.

United States, 533 U.S. 27, 33 (2001) (brackets, citation, and internal quotation

marks omitted). If the answer to both inquiries is in the affirmative, then a search

has occurred. Id.

      In Jones, however, the Court stated that “Fourth Amendment rights do not

rise or fall with the Katz formulation.” 132 S. Ct. at 950.          Harkening back to

traditional property-based concepts foundational to the Fourth Amendment, the

Court reintroduced the common-law “trespass” theory into the Court’s Fourth

Amendment jurisprudence.1         Id. at 951.     The Court indicated that when the

government engages in a “physical intrusion of a constitutionally protected area in

order to obtain information, that intrusion may constitute a violation of the Fourth

Amendment.”         Id. (citation and quotation marks omitted).            In discussing

reintroduction of the trespass theory into the Court’s Fourth Amendment

jurisprudence, the Court stated that “the Katz reasonable-expectation-of-privacy

test has been added to, not substituted for, the common-law trespassory test.”2 Id.

at 952.




      1   Jardines reaffirmed application of common-law trespass theory just last year. 133
S. Ct. at 1414-17.
        2 In Jones, government agents attached a GPS tracking device to the undercarriage

of the defendant’s car while it was parked in a public place and then subsequently
monitored the defendant’s movements for 28 days, collecting evidence eventually
supporting a criminal indictment on drug charges. 132 S. Ct. at 948. The Court held that
such action constituted a search under the common-law trespass analysis. Id. at 949.

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      Important, however, in the Court’s search doctrine is the prerequisite that

the State or government actor have as his or her purpose a desire to find something

or obtain information. “A trespass on ‘houses’ or ‘effects,’ or a Katz invasion of

privacy, is not alone a search unless it is done to obtain information; and the

obtaining of information is not alone a search unless it is achieved by such a

trespass or invasion of privacy.” Id. at 951 n.5; see also Kyllo, 533 U.S. at 32 n.1

(“When the Fourth Amendment was adopted, as now, to ‘search’ meant ‘[t]o look

over or through for the purpose of finding something; to explore; to examine by

inspection; as, to search the house for a book; to search the wood for a thief.’ N.

Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th

ed. 1989).”). This point is dispositive in this case, and is a point that inherently

supports the holdings in those federal circuit court cases that have determined that

a dog’s instinctive, unguided, and undirected action that leads to the discovery of

evidence is not a Fourth Amendment search.

      If a police dog is acting without assistance, facilitation, or other intentional

action by its handler (in the words of Sharp, acting “instinctively”), it cannot be said

that a State or governmental actor intends to do anything. In such a case, the dog

is simply being a dog. If, however, police misconduct is present, or if the dog is

acting at the direction or guidance of its handler, then it can be readily inferred

from the dog’s action that there is an intent to find something or to obtain

information. See Winningham, 140 F.3d at 1330-31 (invalidating a search on such


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grounds). In short, we hold that a police dog’s instinctive action, unguided and

undirected by the police, that brings evidence not otherwise in plain view into plain

view is not a search within the meaning of the Fourth Amendment or Article I,

Section 20 of the North Carolina Constitution. Therefore, the decision of the Court

of Appeals that Jack was an instrumentality of the police, regardless of whether his

actions were instinctive, is reversed.

                                           III

      As defendant indicates in his brief to this Court, the trial court has not made

a finding of fact with respect to the instinctive, unguided, and undirected nature of

Jack’s nuzzling of the bags in this case. Defendant’s brief does concede, however,

that Officer Fox leashed Jack before opening the closet door and that “there is no

evidence to contradict [Officer Fox’s] testimony” that “he did not order Jack to sniff

the bag to nudge it open.” Nevertheless, our review of the trial court’s suppression

order is “strictly limited to determining whether the trial judge’s underlying

findings of fact are supported by competent evidence, in which event they are

conclusively binding on appeal, and whether those factual findings in turn support

the judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291

S.E.2d 618, 619 (1982).      Accordingly, because we have reversed the Court of

Appeals’ determination that Jack was an instrumentality of the police, regardless of

the instinctive nature of his actions, we remand this matter to the Court of Appeals

for further remand to the trial court to resolve whether Jack’s nuzzling of the bags


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was instinctive, undirected, and unguided by the officers, and to enter new findings

of fact and conclusions of law consistent with this opinion.


        REVERSED AND REMANDED.


        Justice BEASLEY did not participate in the consideration or decision in this

case.




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