[Editor’s note: This is Bob’s first post. We’re excited to welcome him to the blog.]
With the Governor’s signature on March 18, 2011, House Bill 3 became law (Session Law 2011-6), effective for all hearings or trials beginning on or after July 1, 2011. It contains two provisions concerning the good faith exception to the exclusionary rule: (1) it imports the good faith exception into Chapter 15A’s statutory exclusionary rule (G.S. 15A-974); and (2) it requests the North Carolina Supreme Court to reconsider and overrule the ruling in State v. Carter, 322 N.C. 709 (1988), that had rejected under the North Carolina Constitution the good faith exception to the Fourth Amendment’s exclusionary rule under the United States Constitution. This post will discuss the legislation and some legal history to place it in perspective.
The Good Faith Exception to the Fourth Amendment’s Exclusionary Rule
The Fourth Amendment was ratified in 1791. It then applied only as a restriction on the federal government in conducting searches and seizures. The United States Supreme Court in Weeks v. United States, 232 U.S. 383 (1914), adopted an exclusionary rule to bar the admission in federal prosecutions of evidence obtained in violation of the Fourth Amendment. The Court in Wolf v Colorado, 338 U.S. 25 (1949), determined that the Fourth Amendment applied to the states through the Due Process Clause of the Fourteenth Amendment, but ruled that the exclusionary rule did not apply to state prosecutions. The Court in Mapp v. Ohio, 367 U.S. 643 (1961), overruled Wolf on the exclusionary rule issue and as a result the exclusionary rule applied to state prosecutions.
The Court ruled in United States v. Leon, 468 U.S. 897 (1984), and a companion case, Massachusetts v. Sheppard, 468 U.S. 981 (1984), that the Fourth Amendment’s exclusionary rule does not apply when a law enforcement officer conducts a search in objectively reasonable reliance on a search warrant that is issued by a detached and neutral magistrate but is later determined to be invalid. “Objectively reasonable reliance” means that a reasonably well trained officer would not have known that the search was unconstitutional. The Court determined in Leon that the officer’s reliance on the magistrate’s determination of probable cause was objectively reasonable—that is, the affidavit contained more than a “bare bones” statement of probable cause. The Court in Sheppard determined that the officer was objectively reasonable in relying on the issuing judge’s assurances to him that the search warrant adequately described the evidence to be seized.
The Court’s early cases on the rationale for the exclusionary rule rested on the twin grounds of judicial integrity (that is, not accepting evidence tainted by unconstitutional conduct) and deterring officers from violating the Fourth Amendment to obtain evidence. With Leon, Sheppard, and particularly later cases, the focus has been exclusively on deterrence. See Leon, 468 U.S. 897, n. 22, and Herring v. United States, 555 U.S. 135 (2009). Herring stated that (1) the exclusionary rule is not an individual right and applies only when it results in appreciable deterrence, and the benefits of deterrence must outweigh the costs; (2) the extent to which the exclusionary rule is justified by deterrence principles varies with the culpability of law enforcement conduct; and (3) to trigger the exclusionary rule, law enforcement conduct must be sufficiently deliberate that exclusion can meaningfully deter it and sufficiently culpable that such deterrence is worth the price paid by the criminal justice system. In Herring, the officer relied on an arrest warrant listed in a neighboring county’s database when, unknown to the officer, the arrest warrant had been recalled. It remains to be seen if the Court will consider a major expansion of the good faith exception to searches and seizures not based on a search warrant or other official record (for example, warrantless searches and seizures).
North Carolina Supreme Court Does Not Recognize Good Faith Exception Under State Constitution
The United States Supreme Court is the final arbiter of the meaning of the United States Constitution, and its rulings are binding on the states. The North Carolina Supreme Court is the final arbiter of the meaning of the North Carolina Constitution. Concerning individual rights, it may interpret state constitutional provisions to provide greater protections to individuals than the federal constitution. For example, a defendant in a criminal case may argue that the state constitution provides greater protections against searches and seizures than the Fourth Amendment, and therefore law enforcement conduct permissible under the Fourth Amendment is not permissible under the state constitution.
In State v. Carter, 322 N.C. 709 (1988), the North Carolina Supreme Court ruled that the good faith exception to the Fourth Amendment exclusionary rule established by Leon and Sheppard does not exist under the state constitution. Significantly, the court based its ruling on both judicial integrity and deterrence: “we regard the crucial matter of the integrity of the judiciary and the maintenance of an effective institutional deterrence to police violation of the constitutional law of search and seizure to be the paramount considerations.” Carter, 322 N.C. at 722. Thus, unlike the Fourth Amendment cases of Leon, Sheppard, and Herring, deterrence is not the only rationale supporting Carter’s interpretation of the state constitution.
The court in the later case of State v. Garner, 331 N.C. 491 (1992), rejected the defendant’s contention that the state constitution did not include an “inevitable discovery exception” to the exclusionary rule. Although the Garner court also made statements that appeared to undermine Carter, it did not overrule Carter, which remains a binding precedent on North Carolina’s courts. For a discussion of Carter and Garner, see note 1 on page 180 in Arrest, Search, and Investigation in North Carolina (3d ed. 2003) (a new edition of this book should be available by the end of this calendar year). A possible conflict between Carter and Garner was noted in State v. Banner, ___ N.C. App. ___, 701 S.E.2d 355, n. 7 (2010).
House Bill 3’s Request to the North Carolina Supreme Court
The North Carolina General Assembly’s request to the North Carolina Supreme Court to reconsider and overrule Carter has no legal force, based on the constitutional principle of separation of powers among the three branches of government. It remains to be seen if the court would reconsider, let alone overrule, Carter.
On a related matter, I have been informed there is a case that soon will be presented to the North Carolina Court of Appeals in which the state is appealing a trial court’s grant of a defendant’s motion to suppress, and the state presented at the trial court level and thereby apparently preserved the Carter issue for consideration by the Court of Appeals and possibly later by the North Carolina Supreme Court.
House Bill 3’s Addition of Good Faith Exception to Chapter 15A’s Statutory Exclusionary Law
This legislation adds the following language (remember the effective date set out at the beginning of this post) in what is now denominated G.S. 15A-974(a)(2):
Evidence shall not be suppressed under this subdivision if the person committing the violation of the provision or provisions under this Chapter acted under the objectively reasonable, good faith belief that the actions were lawful.
It appears under this new legislation that a trial court’s duties in considering a challenge under the statutory exclusionary rule will be twofold.
First, the trial court must determine whether the violation is substantial so as to exclude evidence—the same determination as is currently done. If the trial court determines that the violation is not substantial, then the inquiry ends—unless the trial court wants to make the second determination for purposes of appellate review if an appellate court later rules that the first determination was erroneous.
Second, if the trial court determines that the violation is substantial, then the court must determine whether the evidence must be suppressed under the good faith exception. Remember that the good faith exception to the Fourth Amendment exclusionary rule, to date, has involved an officer’s reliance on a search warrant or other official record, which in many instances will provide an objectively reasonable basis for an officer’s action. The new good faith exception to North Carolina’s statutory exclusionary rule applies to any Chapter 15A statutory violation by an officer. If a court finds a substantial violation by an officer of a statutory requirement, the basis for finding the officer’s actions “objectively reasonable” may be less clear. Perhaps the determination should focus on whether or not a reasonably well trained officer would have known that his or her conduct violated the statute.
The legislation adds new subsection (b) to G.S. 15A-974 to require the trial court to make findings of fact and conclusions of law when making these determinations.
For summaries of cases on the good faith exception, see pages 412-13 of Arrest, Search, and Investigation in North Carolina (3d ed. 2003). For the statutory exclusionary rule, see pages 248 and 414-15.