NC: Police look into backyard during attempted knock and talk violated curtilage

Officers were doing a knock and talk and got no answer. One of them decided to look into the backyard by going to the driveway to get a better view seeing potted plants he suspected were marijuana. They got a search warrant and came back. The appellate court rejects that this is a plain view. The state has been clear before that the backyard is curtilage. State v. Grice, 2012 N.C. App. LEXIS 1316 (November 20, 2012):

In this case, we decline to adopt the State’s argument that the initiation of a valid “knock and talk” inquiry gave Detectives Guseman and Allen a lawful right of access to walk across Defendant’s backyard in order to seize the plants. If we were to adopt such an approach, it would be difficult to articulate a limiting principle such that “knock and talk” investigations would not become a pretense to seize any property within the home’s curtilage, so long as that property otherwise satisfied the remaining prerequisites for seizure under the plain view doctrine. As this Court has observed, “[t]he implication that police officers have the right to seize any item which comes into their plain view at a place they have a right to be is fraught with danger and would sanction the very intrusions into the lives of private citizens against which the Fourth Amendment was intended to protect.” State v. Bembery, 33 N.C. App. 31, 33, 234 S.E.2d 33, 35, disc. review denied, 293 N.C. 160, 236 S.E.2d 704 (1977). Accordingly, we hold the trial court erred in its conclusion that no Fourth Amendment violation resulted from the seizure in light of the fact “Detective Allen visually observed what he believed to be marijuana plants in plain view.”

In the alternative, the State argues that since the trial court found the detectives’ seizure of the plants “was to prevent their destruction,” that the seizure was valid under the “exigent circumstances” exception to the warrant requirement. We disagree, because no evidence was presented at trial to support the trial court’s finding to that effect.