My court story of the month for Carolina Journal:

RALEIGH — The issue of warrantless search and seizures by police was again before the N.C. Supreme Court in a case underscoring the divergent judicial philosophies of the high court’s Republican and Democratic members.

On May 5, 2011, the Johnston County Sheriff’s Office received an anonymous tip that Jerry Grice Jr. was growing marijuana. Two detectives were sent to Grice’s house to talk to him about the claim.

Grice’s front door was unusable, as it was covered by plastic and blocked by furniture. The officers noticed a side door that appeared to serve as the building’s main entrance. No one responded to a knock at the door despite the presence of a car in the driveway. While standing in the driveway, an officer saw three containers with marijuana plants about 15 yards away. The detectives seized the plants to prevent their destruction; a search warrant was obtained later and the house and yard were searched the next day. Grice admitted that the plants seized the previous day were his.

Grice eventually was convicted of manufacturing a controlled substance and was sentenced to a suspended term of six to eight months in prison with supervised probation.

The N.C. Court of Appeals overturned Grice’s conviction, holding that the detective’s warrantless seizure of the plants violated his Fourth Amendment rights. The state then sought review before the Supreme Court.

Exigent circumstances?

The Fourth Amendment states “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Supreme Court precedent recognizes that the Fourth Amendment extends to a house’s “curtilage,” the area “immediately surrounding and associated with the home.”

The N.C. Supreme Court reinstated Grice’s conviction. “Defendant chose to grow marijuana in his yard, plainly visible to any visitors to his home. The law enforcement officers who visited defendant’s home carefully limited the scope of their intrusion, and their seizure was justified under the plain view doctrine and supported by exigent circumstances,” wrote Chief Justice Mark Martin for the majority.

In reaching this conclusion, Martin held that the site where Grice’s marijuana plants were located, 15 yards from his house, in an unfenced area, and not behind a fence, does not qualify for protection under the Fourth Amendment. Even if it did, the plants still would have been easily visible from a portion of the property — the driveway — that by custom and tradition does not enjoy Fourth Amendment protection.

The majority also determined that the seizure without a warrant of the plants was justified by “exigent circumstances.”

“Reviewing the record, it is objectively reasonable to conclude that someone may have been home, that the individual would have been aware of the officers’ presence, and that the individual could easily have moved or destroyed the plants if they were left on the property,” wrote Martin.

Though nominally nonpartisan, campaigns for the court are generally de facto partisan affairs. Martin, as well as the three justices that joined in his opinion — Robert Edmunds, Paul Newby, and Barbara Jackson — are Republicans.

Democrats dissent

Justices Robin Hudson and Cheri Beasley, both Democrats, dissented from the majority holding.

“The state argues, and the majority agrees, that because the marijuana plants in defendant’s backyard were in ‘plain view,’ their seizure was justified under the ‘plain view’ doctrine,” wrote Hudson.

“Because I conclude that this determination is based upon a mistaken assumption about how the doctrine applies when the view and seizure occur from outside a constitutionally protected area, a ‘pre-intrusion’ scenario, I respectfully dissent.”

Hudson argued that the case fell under a different line of court precedents. In her view, the officers simply had no right to enter Grice’s yard without either a warrant or probable cause and exigent circumstances. She did not believe that exigent circumstances existed in this case, and the detectives should have obtained a warrant before seizing the plants.

“Usually, the suspect and the contraband are in one location, and the officers are in a different location — as in, the officers are outside the house and the suspect is inside with the contraband, contemplating potential destruction of it. Here, on the other hand, it is the officers and the contraband that are together, and the suspect is nowhere to be seen. If these circumstances support a finding of exigent circumstances, it is difficult to imagine when a simple sighting of portable contraband would not.”

In Hudson’s view, Grice’s Fourth Amendment rights were violated, and he should receive a new trial without reference to the marijuana plants — which she concluded were seized improperly.

The court’s seventh justice is Sam Ervin IV, a Democrat who joined the court in January. The case was argued in November 2013, more than a year before he joined the court.

The case is State v. Grice, (501PA12).