North Carolina holds that a failure to properly announce was not a “substantial violation” of the state search rule, and it was not the cause of finding the evidence inside under an otherwise valid search warrant. Hudson is cited in passing, but the case was decided under state law that the violation did not advantage the police any, so suppression was not the appropriate remedy. State v. White, 2007 N.C. App. LEXIS 1475 (July 3, 2007):
In the present case, the State and defendant both agree that a substantial violation of G.S. § 15A-251 [the state’s knock and announce statute] occurred because there was no evidence as to why the SIRT team was given the command to execute a forced entry into defendant’s dwelling. However, not all infringements of G.S. § 15A-251 require the suppression of evidence.
G.S. § 15A-974 provides, in pertinent part, that evidence must be suppressed if:
(2) It is obtained as a result of a substantial violation of the provisions of this Chapter. In determining whether a violation is substantial, the court must consider all the circumstances, including:
a. The importance of the particular interest violated;
b. The extent of the deviation from lawful conduct;
c. The extent to which the violation was willful;
d. The extent to which exclusion will tend to deter future violations of this Chapter.
Our Supreme Court has articulated that:
G.S. 15A-974(2) provides that evidence obtained as a result of a substantial violation of the provisions of Chapter 15A must, upon timely motion, be suppressed. The use of the term result in this statute indicates that a causal relationship must exist between the violation and the acquisition of the evidence sought to be suppressed. … [E]vidence will not be suppressed unless it has been obtained as a consequence of the officer’s unlawful conduct …. The evidence must be such that it would not have been obtained but for the unlawful conduct of the investigating officer.
State v. Richardson, 295 N.C. 309, 322-23, 245 S.E.2d 754, 763 (1978)(internal quotation marks and citations omitted). As long as “[t]he evidence at issue was not discovered as a direct result of the entry but as a result of the later search conducted pursuant to the valid search warrant”, the evidence is admissible despite a substantial violation of G.S. § 15A-251. State v. Knight, 340 N.C. 531, 548, 459 S.E.2d 481, 492 (1995).
Here, the search was conducted sometime after the forced entry, and only after the occupants were secured and defendant was read a copy of the warrant and his Miranda rights. It was only then that the search of the premises revealed contraband inside two deep fryers in a room not connected to the point of entry. Defendant does not challenge the search warrant as unsupported by probable cause. And the cocaine would have likely been located even in the absence of the forced entry. See State v. Vick, 130 N.C. App. 207, 219, 502 S.E.2d 871, 879 (1998).
We conclude that the contraband was not subject to suppression because it was not obtained “as a result of” the improper entry. The trial court erred by suppressing the contraband and defendant’s inculpatory statement.
Reversed.
The 10th Cir. decides that a defendant’s barricading himself in a house was not an express rejection of a co-tenant’s consent under Randolph; indeed, Randolph does not even apply. Defendant was futilely attempting to avoid arrest, not object to a search. United States v. McKerrell, 491 F.3d 1221 (10th Cir. 2007):
The factual distinctions between this case and Randolph call into doubt Randolph‘s applicability. McKerrell urges this court to apply Randolph, and exclude the evidence obtained from his home, after deflecting our attention from these distinctions to the instant he shut the door when the officers first arrived at his house. McKerrell contends that his only concern at that moment was to prevent the officers from entering his home–the functional equivalent of expressly refusing to consent to a search of the home. Principal Brief of Defendant/Appellant at 11 (citing United States v. Henderson, 2006 WL 3469538, at *1, *2 (N.D. Ill. 2006) (stating that the defendant “surely included a direction that … [the police] refrain from searching [his] residence” when he said “[g]et the fu*k out of my house”)). To be sure, the district court could have inferred that shutting a door in the face of an imminent arrest amounts to an implied directive to the officers to stay out. Regardless, we conclude that Randolph’s narrow holding does not apply here.
First, unlike in Henderson, the district court here found that McKerrell’s sole concern was to avoid arrest, not to avoid arrest and prevent the officers from entering his home to search. The evidence supports this finding: McKerrell never told the officers to stay out of his home when they arrived; McKerrell discussed the arrest warrants when speaking on the phone with the police, but never expressed concern over the possibility of a search; and McKerrell never told the officers to stay out of his home after he surrendered and the police arrested him, arguably because his concern about being arrested dissipated upon his arrest.
While McKerrell asks us to infer that he impliedly refused to consent when he closed his doors to the police, the parties legitimately dispute whether this conduct related to McKerrell’s desire to avoid arrest or to his desire to direct the officers to leave his property and refrain from searching, or both. Although McKerrell testified that he objected to a search, the district court did not clearly err by finding that McKerrell acted solely to avoid arrest.
Second, whatever meaning we could decipher from McKerrell’s actions, Randolph explicitly declined to conduct this inquiry when it required the defendant to have expressly objected to the search. See Randolph, 126 S. Ct. at 1519. While McKerrell characterizes Randolph as a sweeping pronouncement because Randolph’s introductory paragraph stated that “a physically present co-occupant’s stated refusal to permit entry prevails [over his co-occupant’s consent],” id., McKerrell’s argument ignores that this statement was tethered to the immediately preceding sentence (which asked whether a present co-tenant’s express objection vitiated his co-tenant’s consent), that Randolph carefully delineated the narrow circumstances in which its holding applied, and that Randolph consciously employed a rule requiring an express objection by a present co-tenant. See id. at 1527 (stating that “[t]his is the line we draw, and we think the formalism is justified … [because] there is value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it”) (emphasis added). McKerrell asks us to ignore the Supreme Court’s plain language, reject its consciously-imposed formalism, and apply a rule likely to beget the type of confusion Randolph intended to avoid. We reject this approach.
Third, even if we interpreted the district court’s opinion as finding that McKerrell attempted to avoid arrest by impliedly directing the officers not to enter his residence to arrest him, the police were under no obligation to obey McKerrell’s implied request.
A sufficient factual dispute was shown for plaintiff to survive summary judgment on a claim that her home was entered without a warrant. Officers who provided mere backup could not be sued for a § 1983 violation. Thompson v. Goins, 2007 U.S. Dist. LEXIS 48088 (S.D. Ohio July 2, 2007).*
