___________ COUNTY                 DISTRICT COURT DIVISION
  FILE NO.  


         VS.                         MEMORANDUM ON
                             UNCONSTITUTIONAL SEARCH


The Fourth Amendment of the United States Constitution provides that "the right of the

people to be secure in their...houses...against unreasonable searches and seizures shall not be

violated."  See also Article I, Section 20 of the North Carolina Constitution.  "The governing

premise of the Fourth Amendment is that a governmental search and seizure of private property

unaccompanied by prior judicial approval in the form of a warrant is per se unreasonable unless

the search falls within a well-delineated exception to the warrant requirement involving exigent

circumstances.  Hence, when the State seeks to admit evidence discovered by way of a

warrantless intrusion into a private room in a shared home in a criminal prosecution, it must

first show how the former intrusion was excepted from the general constitutional demand for a

warrant."  State v. Cooke, 306 N.C. 132,135, 291 S.E.2d 618, 620 (1982).  "[E]vidence

obtained during an unconstitutional search is inadmissible at trial."  State v. Allison, 298 N.C.

135, 140, 257 S.E.2d 417, 421 (1979).  Also see, Thompson v. Louisiana, 469 U.S. 17 (1984);

State v. Graves, 135 N.C. App. 216, 519 S.E.2d 770 (1999); State v. Carter, 322 N.C. 709, 370

S.E.2d 553 (1988).

In the instant case, all the undisputed evidence established as a matter of law that police

officers unconstitutionally entered and searched the house and property on April 16, 2008

without a search warrant and without exigent circumstances.  There is no dispute that defendant

had a reasonable expectation of privacy in his house; that the officers did not have a

search warrant when they entered the residence; that the warrantless search was presumptively

unconstitutional unless it was justified by a recognized exception to the warrant requirement;

and that none of the warrant-requirement exceptions based on concern about destruction or

removal of evidence, officer safety, or crime scene investigation were applicable to the search.

A warrant was only a moment and a phone call away.  Indeed, the search was plainly

unconstitutional unless the exigent circumstance exception grounded on urgent necessity to

save life–sometimes loosely called the "emergency aid" exception–applied.

After a wreck was reported Chapel Hill Police Department officers did a

registration search and got the address of the vehicle's presumed driver from the owner.  They

then entered a private room in the residence without permission or a warrant.  No

exigent circumstances exception to the warrant requirement applied.

The emergency aid exigent circumstance search warrant requirement exception did not

apply in this case because the officers did not have reasonable grounds to believe that an

emergency was at hand and that the warrantless search of the private room was urgently

necessary to save life.  N.C. Gen. Stat 15A-285 provides that "when an officer reasonably

believes that doing so is urgently necessary to save life. . .[he] may...enter buildings...and other

premises....An action taken to...seize...evidence cannot be justified by authority of this section."

Manifestly, the actions of the officers fall within the above underlined sentence from the statute,

and are thus not authorized.  Police may not search a house without a warrant under this

exception unless they "reasonably believe that a person within is in need of immediate aid."

State v. Jolley, 312 N.C. 296, 301, 321 S.E.2d 883, 886 (1984), cert. den., 470 U.S. 1051,

quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978).  See 2 W. LaFave, Search and Seizure

6.6(a)(1987).  Police cannot create their own exigent circumstances to avoid the warrant

requirement of the Fourth Amendment.  In Payton v. New York, 445 U.S. 573 (1980), the case

involved warrantless entry into two homes with probable cause to arrest defendants, who were

suspected to be armed, on felony charges.  The Supreme Court refused to entertain an argument

about exigent circumstances because the police had ample time to have obtained a warrant.  Id.

at 583.  Here, the facts known to the officers did not constitute reasonable grounds to believe

that there was imminent danger of death or that someone inside needed immediate aid.   

Second, it was a substantial period of time after the reported accident before the officers entered

the residence and no one inside the residence had asked for medical attention at any time.  

Third, the officers actions belied any belief on their part that there was an emergency need

inside the building.  He neither asked the young man if he needed help or requested an

ambulance as part of the back-up team.   Nobody was calling for help, nobody was in apparent

need of any assistance, no crime was being committed, and there was no evident emergency of

any sort.  A warrant was ony a short phone call away.  All this undisputed evidence shows that

the emergency aid warrant exception did not apply.

None of the residents gave consent for the officers to enter. Even if one or more of the

roommates had given consent, they could not give consent to enter the defendant's bedroom:

"As with spouses, a roommate generally may not consent to search a place where the other

roommate clearly has exclusive privacy interests."  ARREST, SEARCH, AND

INVESTIGATION IN NORTH CAROLINA, Robert L. Farb, p. 79 (3rd ed. 2003).  In

United States v. Matlock, 415 U.S. 164 (1974), the Supreme Court declared that common

authority is not to be implied from the mere property interest a third party has in the property,

for the authority which justifies the third-party consent does not rest upon the law of property,

but rests rather on mutual use of the property by persons generally having joint access or

control over the room for most purposes.  A cotenant or common resident has no authority to

consent to a warrantless search of any areas which are reserved for the exclusive use of another

cotenant or common resident.  see, e.g. Silva v. State, 344 So.2d 559 (Fla. 1977); State v.

Tucker, 574 P.2d 1295 (AZ 1978); People v. Douglas, 213 N.W.2d 291 (1973); State v. Lynch,

764 9.2d 957 (OR 1988); Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001); U.S. v. Barrera-

Martinez, 274 F. Supp.2d 950 (N.D. 111. 2003); Gado v. State, 882 N.E.2d 827 (Ind.Ct.App.

2008); State v. Morse, 123 P.3d. 832 (Wash. 2005).

As the United States Supreme Court stated in Mincey v. Arizona, "the point of the

Fourth Amendment, which often is not grasped by zealous officers, is...that...the usual

inferences which reasonable men draw from evidence... [must] be drawn by a neutral and

detached magistrate instead of...the officer."  437 U.S. at 395.  In sum, all the undisputed

evidence showed that the "emergency aid" exception to the search warrant requirement did not

apply and that the State did not meet its heavy burden of showing sufficient exigent

circumstances to make the officers' presumptively unconstitutional warrantless search


This the ________day of _____________________, 20______.

Marcus E. Hill
Attorney for Defendant
311 E. Main Street
Durham, North Carolina  27701
(919) 688-1941