An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-154
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STATE OF NORTH CAROLINA

      v.                                      Durham County
                                              No. 12 CRS 59532
KYLE WESLEY WOOD



      Appeal by defendant from judgment entered 26 August 2013 by

Judge Paul C. Ridgeway in Durham County Superior Court.                       Heard

in the Court of Appeals 3 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      M. Elizabeth Guzman, for the State.

      Russell J. Hollers III for defendant.


      HUNTER, Robert C., Judge.


      Defendant appeals the judgment sentencing him to twenty-

four months of supervised probation which was entered after he

pled guilty to        one count of       manufacturing      marijuana     and one

count of possessing with intent to manufacture, sell, or deliver

marijuana.       On appeal, defendant argues that the trial court

erred in denying his motion to suppress because the officers’

initial warrantless entry into defendant’s house and decision to
                                        -2-
remain in the house was not justified by exigent circumstances.

Thus, the marijuana seized as a result of the unconstitutional

entry    and     search     of    defendant’s       house     should      have     been

suppressed.

       After careful review, we affirm the trial court’s denial of

defendant’s motion to suppress.

                                    Background

       The     State’s     evidence     presented       at     the       hearing     on

defendant’s      motion      to    suppress     tended       to     establish       the

following: At approximately 5:00 a.m. on 21 September 2012, a

man called 911 and claimed that he was taking pills and wanted

to commit suicide (“the 911 caller”).               The man’s speech was very

slurred and slow, and emergency dispatch had a hard time hearing

him.    Although the 911 call had come from 1330 Valley Run Drive

in   Durham,     the     dispatcher    misunderstood         and    dispatched      the

officers to 1313 Valley Run Drive, defendant’s address.                       Officer

Jeffrey Kenyon (“Officer Kenyon”) and Officer Terrence Austin

(“Officer      Austin”)    responded    to    the    call.         At   the   hearing,

Officer Kenyon testified that he had been a police officer for

four and a half years and was also a member of the crisis

intervention team (“the CIT”).           Members of the CIT are specially

trained to deal with and respond to people in crises, including
                                     -3-
those resulting from drug addiction, depression, and suicide.

Officer Kenyon testified that he had responded to “quite a few

suicide attempts” and that many of the callers are deceptive and

deny that they are trying to commit suicide.

    After     arriving     at     defendant’s      house,     Officer      Kenyon

testified that the whole house was dark and no one answered when

he knocked on the door for 30 to 45 seconds.                  He and Officer

Austin looked in the windows with their flashlights to see if

they saw anyone in the house.         They came to a bedroom where they

could   see   a   white   male   lying    on   a   mattress   who    was   later

identified as defendant.         Officer Kenyon knocked on the window

and woke him up.          When defendant answered the door, Officer

Kenyon told him that police were responding to a suicide threat

and that someone had called from his house reporting that he was

taking pills and wanted to end his life.             Defendant told Officer

Kenyon that he was not the caller.                 Officer Kenyon asked if

there was anyone else in the home; defendant replied that he had

a roommate that stayed in the front bedroom.                   Officer Kenyon

asked to speak to the roommate; defendant said he would not

allow   police    into    his    house.        Concerned    that    defendant’s

roommate was in danger, Officer Kenyon entered defendant’s house

and saw a man in the hallway.              After Officer Kenyon told the
                                      -4-
roommate why he was there, the roommate told him that he was not

the 911 caller.        The officers performed a safety sweep of the

rooms with their flashlights, and, not finding anyone, met with

defendant and his roommate in a front room.

      Based on his past experiences with individuals attempting

to commit suicide, Officer Kenyon contacted his communications

officer and requested that he call back the number to see if a

phone rang in defendant’s house.              While they were waiting to

hear back from communications, another officer switched on the

overhead lights for officer safety; up until this point, the

officers   were    using     only     their   flashlights    to     illuminate

defendant’s      house.        As      Officer    Kenyon      learned       from

communications that dispatch had sent him to the wrong address,

Officer Austin saw a large black bag with marijuana “falling

out” of it in the middle of the floor next to a fireplace.

Officer Austin testified that the bag was about two feet from

where he was standing in the front room.                  At that point, to

ensure that there was no one else in the house and concerned for

officer safety based on the fact that there was a large amount

of   marijuana    in   the   house,    Officer   Kenyon    walked    down   the

hallway and looked in a bedroom with its door open.                     He saw

clotheslines with marijuana hanging from them through the open
                                             -5-
door.       After confirming there was no one else in the home, he

and the other officers held defendant and his roommate in the

front room while other officers secured a search warrant.

       On        18   February       2013,      defendant       was      indicted          for

manufacturing           marijuana,     possession        with   intent       to    sell     or

deliver          marijuana,         felonious         possession       of     marijuana,

maintaining a dwelling for the purpose of keeping or selling

marijuana,        and    possession     of     drug     paraphernalia.            After    the

trial court denied his motion to suppress, defendant pled guilty

to    one    count      of   manufacturing         marijuana     and    one       count     of

possessing with intent to sell or deliver marijuana, reserving

the right to appeal the denial of his motion to suppress.                                  The

trial court sentenced defendant to a minimum term of five months

to a maximum term of fifteen months imprisonment but suspended

the   sentence        and    placed    defendant        on   twenty-four          months    of

supervised probation.            Defendant appeals.

                                        Argument

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

erred       in    denying     his     motion       to   suppress.           Specifically,

defendant        contends     that    the    officers’       entry    into    defendant’s

home without a warrant or defendant’s consent was unreasonable

because they did not have an objectively reasonable belief that
                                              -6-
anyone inside the home was injured or needed immediate aid.

Furthermore, even if the initial entry was reasonable, defendant

contends that it was unreasonable for officers to remain in his

home    once    they     determined        that      neither     defendant      nor    his

roommate were the 911 caller.                       Accordingly, any evidence in

plain   view    they    saw       was   not    within     the   reasonable     scope    of

rendering emergency assistance and should have been suppressed.

       Our   review     of    a    trial      court’s     denial   of    a    motion    to

suppress 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).

       The   Fourth     Amendment        to    the    United    States   Constitution

prohibits      “unreasonable        searches        and   seizures.”         U.S.   Const.

amend. IV.          Generally, searches and seizures conducted without

judicial authorization are per se unreasonable unless they fall

within a well-established exception to the warrant requirement.

State v.       Graves, 135 N.C. App. 216, 219, 519 S.E.2d 770, 772

(1999).
                                          -7-
       One exception to the warrant requirement is when officers

have an objectively reasonable basis for believing that someone

has    been   injured   and   may    need        assistance    or     that    further

violence is imminent.         See State v. China, 150 N.C. App. 469,

479, 564 S.E.2d 64, 71 (2002) (“Officers may enter a house for

emergency purposes without a warrant when they believe a person

in the house is in need of immediate aid or assistance in order

to avoid serious injury.”).          This Court has noted that “[a] law

enforcement     officer’s      action       is     reasonable        and     therefore

constitutional as long as the circumstances objectively justify

the officer’s behavior.”            State v. Cline, 205 N.C. App. 676,

679, 696 S.E.2d 554, 557 (2010).

       Whether exigent circumstances exist to allow a warrantless

entry into someone’s home is determined on a case-by-case basis.

Id. at 680, 696 S.E.2d at 558.                  For example, in Cline, id. at

682,    696   S.E.2d    at    555,        this     Court    held      that     exigent

circumstances     existed     for    an    officer     to     make    an     immediate

warrantless entry into the defendant’s home based on the fact

that there was an unattended child on the side of a highway, the

officer believed that the defendant was the child’s father, no

one answered the officer’s repeated knocks at the door, the

home’s back door was open, and a search warrant would have taken
                                          -8-
over two hours to obtain.              Similarly, in State v.          Scott, 343

N.C. 313, 329, 471 S.E.2d 605, 614 (1996), our Supreme Court

held an officer’s warrantless search of a crawlspace under the

defendant’s house was not unreasonable because the officer was

at the defendant’s home to investigate a missing persons report,

the officer observed green flies which may indicate a decaying

corpse, and no one answered the officer’s repeated knocks at the

door.

     The     first      issue     is    whether     the      officers’       initial

warrantless entry into defendant’s house was justified.                        Here,

Officer Kenyon, who had been a police officer for over four

years and a member of the CIT who had responded to numerous

suicide    calls,      was    dispatched   to    defendant’s    home    after    the

dispatcher      told    him    that    someone    was   attempting      to     commit

suicide    at    defendant’s       address.        Although     the    dispatcher

misunderstood the caller’s address, at the time Officer Kenyon

responded, he had no way of knowing the dispatcher’s mistake.

Once he arrived at the home and spoke to defendant, based on his

experience,      he    was    concerned    that    someone     else    other    than

defendant may be in need of emergency assistance.                        In fact,

defendant admitted to Officer Kenyon that he had a roommate but

refused to allow him in the house to check on the roommate.                        In
                                         -9-
an effort to ensure that no one else in defendant’s house was

attempting to commit suicide, Officer Kenyon entered the home to

speak with defendant’s roommate and anyone else he found in the

house.       A reasonable officer in Officer Kenyon’s position could

have believed that the 911 caller was still in the house and in

need    of    emergency     assistance.        Furthermore,     given   that   the

caller       claimed   to   have     already   taken    pills   in   his   effort,

Officer      Kenyon    needed   to    immediately      enter   defendant’s    house

because waiting for a search warrant would have taken too long

under     the    circumstances.          Accordingly,      Officer   Kenyon     was

authorized       to    make     the     initial     warrantless      entry     into

defendant’s house.

       Next, the Court must determine whether the officers’ action

of remaining in defendant’s house after talking with defendant

and his roommate was within the reasonable scope of rendering

emergency assistance.           See State v. Woods, 136 N.C. App. 386,

392, 524 S.E.2d 363, 367 (2000) (noting that even though an

entry into a house may be justified, the Court must look at

whether the scope of the ensuing searches was reasonable under

the circumstances by determining whether it furthers the stated

purpose for entering).          Although officers spoke to defendant and

his roommate and both denied being the 911 caller and claimed
                                    -10-
that there was no one else in the house, Officer Kenyon remained

concerned, given his past experience with responding to suicide

attempts, that there was someone else in the house and that the

911 caller did not want to identify himself.             To check, Officer

Kenyon and the other officers remained in defendant’s house to

have dispatch call back the 911 caller’s number and listen for a

phone.    At this point, Officer Kenyon still reasonably believed

that the 911 call came from defendant’s house.            Furthermore, his

solution to ensure the safety of the caller was justified and as

unobtrusive as possible under the circumstances.               Consequently,

turning on the lights and remaining in the front room waiting

for dispatch to call back the 911 caller’s number was reasonable

and still within the scope of rendering emergency assistance.

    Finally, the last issue is whether the officer’s seizure of

the marijuana in the black bag was constitutional under the

plain view doctrine.        Under the plain view doctrine, police may

seize evidence without a warrant if “(1) the officer was in a

place    where   he   had   a   right   to   be   when   the   evidence   was

discovered; (2) the evidence was discovered inadvertently; and

(3) it was immediately apparent to the police that the items

observed were evidence of a crime or contraband.”                  State v.

Graves, 135 N.C. App. 216, 219, 519 S.E.2d 770, 772 (1999).
                                               -11-
While waiting for the dispatcher’s call and after turning on the

light, Officer Austin saw a black bag with marijuana visibly

falling out of it in plain view, approximately two feet away

from where he was standing.                      Based on the emergency exigent

circumstances, the officers were authorized to enter defendant’s

house   and    remain       in    defendant’s           home.          When   they    saw     the

marijuana, they were not looking for it, and it was immediately

apparent,      based   on     how      it     looked     and      smelled,     that    it     was

marijuana.        Thus,          the        marijuana       in     the    front      room     was

constitutionally seized pursuant to the plain view doctrine.

      In summary, Officer Kenyon’s initial warrantless entry into

defendant’s       house       was       reasonable           based       on    the     exigent

circumstances of rendering emergency assistance.                               In addition,

the officers’ decision to remain in defendant’s house and turn

on   the   lights      even      after        speaking       with      defendant      and     his

roommate was still within the scope of rendering emergency aid

and, thus, constitutional.                    Finally, once the lights were on,

the marijuana seized in defendant’s front room was in plain view

of   Officer    Austin.           Therefore,          the   warrant       obtained     by     the

officers      after    seeing       the       marijuana          was   not    fruit    of     the

poisonous tree since the officers’ conduct was constitutional in

entering    and   remaining            in    defendant’s         house.       See     State    v.
                               -12-
McKinney, 361 N.C. 53, 58, 637 S.E.2d 868, 872 (2006) (holding

that “[o]nly evidence discovered as a result of unconstitutional

conduct constitutes fruit of the poisonous tree”).    Therefore,

the trial court properly denied defendant’s motion to suppress.

                             Conclusion

    Based on the foregoing reasons, we affirm the trial court’s

judgment.



    AFFIRMED.

    Judges McGEE and ELMORE concur.

    Report per Rule 30(e).
