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Resurrecting the Good Faith Exception in North Carolina?

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Conventional wisdom says that unlike the federal court system, we do not have a good faith exception under North Carolina law. Even though G.S. 15A-974 was amended in 2011 and now expressly provides for a statutory good faith exception, most practitioners agree that its use remains off limits under our state constitution unless and until State v. Carter is overruled.

If you had asked me a month ago, I would have confidently said “yep, that’s the law.” Today, I’m a little less sure. Two recent Court of Appeals decisions have renewed the question of whether Carter actually says what we think it does.

Quick History Lesson:

Bob Farb covered this topic in his first-ever blog post nearly ten years ago, so I will try not to duplicate all of his work here, but a brief recap may be helpful.

1. Good Faith vs. Carter:

The good faith exception says that evidence obtained in violation of the defendant’s Fourth Amendment rights may nevertheless be admissible if the officer was acting in objectively reasonable reliance on a search warrant or other legal authority, even if that basis is later found to be invalid. See United States v. Leon, 468 U.S. 897 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984); Herring v. United States, 555 U.S. 135 (2009); Davis v. United States, 564 U.S. 229 (2011). The exclusionary rule is premised on deterring intentionally unlawful conduct by the police, but the courts have recognized that achieving deterrence by excluding relevant evidence is a “bitter pill” since it may “suppress the truth and set the criminal loose in the community without punishment.” Davis at 237. Therefore, if an officer was acting on the objectively reasonably belief that the search was lawful, the good faith exception applies because excluding the resulting evidence would only incur the societal cost without achieving the intended benefit.

In State v. Carter, 322 N.C. 709 (1988), the North Carolina Supreme Court held that no such exception applies to the comparable protections found in Article I, Section 20 of the North Carolina Constitution (prohibition against general warrants and unreasonable search or seizure). Carter echoed the deterrence rationale (“the exclusionary rule is the only effective bulwark against governmental disregard for constitutionally protected privacy rights”), but it also held that excluding wrongfully obtained evidence was required as a matter of “judicial integrity,” meaning that “our constitution demands the exclusion of illegally seized evidence. The courts cannot condone or participate in the protection of those who violate the constitutional rights of others.” Id. at 723.

2. Carter vs. G.S. 15A-974:

The General Assembly responded in 2011 by amending G.S. 15A-974 (“Exclusion or suppression of unlawfully obtained evidence”) to create a statutory good faith exception. The amended statute now broadly directs that “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.” Acknowledging that Carter likely barred the use of the new provision, Section 2 of the amendment “request[ed] that the North Carolina Supreme Court reconsider, and overrule, its holding in State v. Carter that the good faith exception to the exclusionary rule which exists under federal law does not apply under North Carolina State law.” S.L. 2011-6 (H.B. 3).

To date, the state Supreme Court has not accepted the legislature’s invitation to revisit Carter. An opportunity to do so arose in State v. Elder, 232 N.C. App. 80 (2014), where the appellate court invalidated a search purportedly executed under the authority of a domestic violence protective order. Elder relied upon Carter and rejected the state’s good faith argument, but noted that “the legislature recently adopted the session law requesting that the Supreme Court overrule Carter in 2011, and […t]his case could potentially present such an opportunity.” The state Supreme Court did review the case and affirmed the lower court’s ruling that the search was improper under both the state and federal constitutions, but did so without directly addressing Carter, the good faith exception, or the 2011 amendment to the statute. See State v. Elder, 368 N.C. 70 (2015). Shea Denning analyzed Elder in more detail in this post.

And that is pretty much where things have stood for the past nine years — with a good faith statute now on the books, but courts apparently still unable to apply it to state constitutional claims. See, e.g., State v. Gerard, 249 N.C. App. 500 (2016) (trial court reached correct result but “erred in basing its determination upon the good faith exception under North Carolina General Statute § 15A974“); State v. Parson, 250 N.C. App. 142 (2016) (citing Carter, “[o]ur Supreme Court has held that no good faith exception exists to the exclusionary rule for violations of the North Carolina Constitution”).

Or so I thought.

Let’s Check Some Tea Leaves…

I will admit that the unpublished case of State v. Foster, 264 N.C. App. 135 (Feb. 21, 2019) slipped under my radar last year. In Foster, Judges Berger, Stroud, and Dietz held that a challenged search warrant was adequately supported by probable cause, and therefore they did not need to resolve the defendant’s second argument that the search could not be saved by the good faith exception. But their holding was supplemented by this interesting footnote:

We note that Defendant argues State v. Carter, 322 N.C. 709, 370 S.E.2d 553(1988) stands for the proposition that there is no good faith exception to the exclusionary rule. However, the language in Carter detailing the good-faith exception has been superseded by Section 15A-974 of the North Carolina General Statutes: “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.” N.C. Gen. Stat. § 15A-974 (2018).

Foster, slip op. at 11, n. 2 (emphasis added). This footnote came to my attention through Judge Dillon’s concurrence in State v. Gore, __ N.C. App. __ (June 16, 2020), a published case decided by the Court of Appeals last month, which we summarized here.

Gore is a pretty significant opinion in its own right, finding that phone records containing historical cell-site location information (CSLI) obtained by a court order instead of a search warrant were admissible. The majority (J. Arrowood, J. Berger concurring) held that obtaining the records was a “search” pursuant to Carpenter v. United States, __ U.S. __,201 L.Ed.2d 507 (2018) and therefore a warrant was required. However, the evidence did not have to be excluded under the Fourth Amendment in this case because the good faith exception applied, just as it did in Carpenter. Turning to the state constitutional argument, the majority concluded that the warrant requirement was satisfied because the court order used in this case was the functional equivalent of a search warrant: supported by affidavit; based on a showing of probable cause; presented to a neutral and detached magistrate; and specifically naming what was to be searched/seized. Therefore, “[b]ecause we hold that the warrant requirement was met, we do not consider whether there exists any good faith exception to the exclusionary rule in North Carolina, such as that which exists in the federal courts.” Gore, slip op. at 16-17.

In his partial concurrence, Judge Dillon put forward a different view. He agreed with the majority’s application of the good faith doctrine to refute the federal claim, but he disagreed with the holding that the court order in this case functioned as the equivalent of a search warrant satisfying state law requirements, because the affidavit supporting the order did not establish probable cause to believe that the records contained evidence of a crime. Nevertheless, he concurred with the result for two reasons. First, pursuant to state case law, because obtaining the CSLI was not a search. Second, and more importantly for this discussion, because he believed that the good faith exception applied under the state constitution as well:

I note Defendant’s argument that the good faith exception is not recognized under the North Carolina Constitution. However, I conclude that our North Carolina Constitution does not forbid the General Assembly from passing a law, as that body has done, to allow for a good faith exception to the judicially adopted rule that evidence collected in violation of the constitution generally must be excluded. […] A superficial reading of [Carter] may lead one to believe that our Supreme Court was holding that our state constitution prohibits a good faith exception from being enacted by our General Assembly; that is, that our state constitution forbids the good faith exception to the exclusionary rule. […] But a closer reading of Carter reveals that our Supreme Court did not hold that the absence of a good faith exception under state law at that time (in 1988) was a constitutional matter which could only be changed by constitutional amendment. Rather, the Court held that the recognition or non-recognition of a good faith exception is a matter of public policy within the purview of our General Assembly’s lawmaking authority. […T]he only fair reading of Carter is that our state constitution neither prohibits nor provides for a good faith exception, but rather the matter is one of public policy to be decided by the people’s representatives serving in our General Assembly.

Gore, concurrence at 6-9. That argument may seem like an uphill climb, considering the case precedent cited above, but there is a basis for it.

Wait — How Can a Statute Overrule the State Constitution?

Well, it can’t. But the argument being made here says that’s not what happened. Under this view, Carter never held that the state constitution expressly forbids the good faith exception in North Carolina; it only held that no such exception existed as some sort of self-evident corollary to the state constitutional provision, waiting to be discovered and explained by the courts in the same way that the federal good faith doctrine arose under cases interpreting the Fourth Amendment. Therefore, this view holds, the creation of a new statutory good faith exception does not conflict with Carter or the state constitution; it just presents a different legal landscape than what was before the court when Carter was decided, which calls for a different result. In other words, it’s not “overruling” Carter or the state constitution, but rather complying with them by providing the previously absent legislative authority for the exception.

On one hand, this alternative view is awfully hard to reconcile with some of the strong, constitutionally-grounded pronouncements in Carter like this one: “The preservation of the right to be protected from unreasonable search and seizure guaranteed by our state constitution demands that the courts of this state not condone violations thereof by admitting the fruits of illegal searches into evidence.” Id. at 719.

On the other hand, if the Carter court truly believed that nothing short of a constitutional amendment could change the law, it could have said so. Instead, the court seems to have suggested that a statutory amendment like the one passed in 2011 is exactly what was required: “If a good faith exception is to be applied to this public policy, let it be done by the legislature, the body politic responsible for the formation and expression of matters of public policy.” Id. at 724.

One unpublished footnote and a partial concurrence can hardly be called a groundswell of support for this view, but it does suggest that at least some members of the appellate court are willing to consider the argument. And if this view is indeed the correct interpretation, it raises the intriguing possibility that a state-level good faith doctrine could be developed in the case law even if Carter is never formally overruled. Time will tell. As always, please feel free to share your thoughts in the comments.

One comment on “Resurrecting the Good Faith Exception in North Carolina?

  1. Thanks for the breakdown John and I hope your doing well. I’d say that the good-faith exception is the last thing we need in this time when public trust in law enforcement is at a low point. The abandonment of judicial integrity as a basis for exclusion has been a mistake and I’ve been proud that NC has upheld this principle. Deterrence should not be the only consideration.

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