The Supreme Court ruled in Riley v. California that cell phones can’t be searched incident to arrest. Jessie explained in yesterday’s post that Riley applies to cases that were pending when it was decided. Does that mean that the results of all the cell phone searches incident to arrest conducted before Riley was decided must be suppressed? Maybe not, as I explain below.
Round 1: the State argues the good faith exception. The State’s first move will be to argue that such searches were conducted in good faith reliance on existing precedent, namely State v. Wilkerson, 363 N.C. 382 (2009) (ruling briefly that “in the case at bar, the seizure and the search of the telephone were properly accomplished pursuant to a lawful arrest”). The Supreme Court has ruled that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis v. United States, __ U.S. __, 131 S.Ct. 2419 (2011).
Round 2: the defense argues Carter and the state constitution. The defense response will be to argue (1) that the state constitution protects citizens from unreasonable searches and seizures to at least the same extent as the Fourth Amendment, State v. Garner, 331 N.C. 491 (1992) (stating that the two constitutions protect the “same fundamental right to be free from unreasonable searches and seizures”); State v. Gwyn, 103 N.C. App. 369 (1991) (“North Carolina’s law of search and seizure and the requirements of the Fourth Amendment to the Constitution of the United States are the same.”), and (2) that under the state constitution, there is no good faith exception to the exclusionary rule, State v. Carter, 322 N.C. 709 (1988). So, the argument goes, even if the results of a cell phone search incident to arrest need not be suppressed under the federal exclusionary rule, they must be suppressed under the state exclusionary rule.
Round 3: the State argues that Carter is inapplicable. The rejoinder by the State might be to argue that Carter was decided in the context of the exception to the federal exclusionary rule regarding good faith reliance on a search warrant, see United States v. Leon, 468 U.S. 897 (1984), and that Carter doesn’t apply to good faith reliance on prior appellate precedent. There’s plenty in Carter to feed both sides of the argument.
The defense may point out that Carter actually didn’t involve a search warrant, but rather a wrongly issued nontestimonial identification order, so it can’t quite be limited to the Leon holding. More importantly, the majority opinion in Carter can easily be read as a full-throated defense of a broad exclusionary rule. It argues that North Carolina “justifies its exclusionary rule not only on deterrence [of police misconduct] but upon the preservation of the integrity of the judicial branch of government and . . . the expressed public policy of the state.” And it asserts that “[u]nder the judicial integrity theory, 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.”
But the State may respond that anything in Carter not involving search warrants and nontestimonial identification orders is dicta. And some parts of Carter might not apply to the Riley analysis. For example, “judicial integrity” may not be compromised by the admission of evidence that was obtained under binding appellate precedent, i.e., the law as judges declared it to be.
Round 4: the State challenges Carter on appeal. If the State can’t distinguish Carter at the trial court level, its final move would be to appeal the issue and to ask the state supreme court to overrule Carter. That strikes me as a real possibility. The composition of the state supreme court today is different than it was in 1988. The United States Supreme Court has curtailed the application of the Fourth Amendment exclusionary rule greatly since then. And, while Carter relied in part on the existence of a statutory exclusionary rule in North Carolina as evidence of the state’s commitment to the rule, the statutory exclusionary rule now itself includes a good faith exception. G.S. 15A-974 (“Evidence shall not be suppressed under this subdivision if the person committing the violation of the . . . provisions under this Chapter acted under the objectively reasonable, good faith belief that the actions were lawful.”). Would the current state supreme court reaffirm Carter? We may soon find out.
As the Court is currently constituted, I agree there is a real possibility of a reversal on the good faith exception, but I hope the Court sees the utility in providing more protection to its citizens than the federal government provides. The constitutional protection are supposed to be the floor, not the ultimate test, but the very minimum right. It is difficult to understand why people do not value their rights more. It seems that as long as it is not happening to them, and they are not “those people” that things just roll right along. It is sad really.
Excellent post.
I want to point out that a reasonable reliance on Wilkerson is going to need to bear some resemblance to the holdings of that case in order to meet a good faith exception (in my opinion). In that double-murder case, the defendant’s phone rang while he was being interviewed (for murder).
When asked, the defendant told the detective who was calling him . In the evidentiary hearing, the detective testified after the phone call she asked Wilkerson who else had called her and he showed her the numbers and call times. The detective told him, “George, we’re going to need to take that. And he said okay and gave it to me.”
The trial court ruled the phone had been seized pursuant to a lawful arrest and that it was seized by consent of the defendant. The NC Supremes then cited a 1974 US case involving lab testing of def’s clothing and a 2000 NC case also involving searching def’s clothing.
At trial, the phone was introduced to prove that Wilkerson made a particular call at the time of the murders.
Now, that is not that same as being arrested for a warrant on a DWLR and having the police read your emails or look at your pictures or websites recently visited. Any agreement?
I do not think it is a fair presumption that the state of the 4th Am prior to Riley was that searches of smart phones pursuant to arrest are always valid, regardless of scope, charge being investigated, general relevance, etc.. I am not saying this post make such a presumption at all, but I could see it coming from prosecutors in court.
The NC Supreme Court has an opportunity to reverse the decision in State V Carter in a case that the State has appealed to the Supreme Court, State V Gregory Elder out of Mecklenburg County NC Supreme Court No. 41A14-1.
It is a very interesting case where deputies served a DVPO ex parte order where the judge authorized a search of the residence for weapons. Upon searching the residence, the deputies discovered a marijuana growing operation. The defendant challenged the search and the Court of Appeals ruled that in order for the search to have been valid under the DVPO order it would have to be tantamount to a search warrant and the court found that it was not. There were no findings supporting probable cause to believe evidence of a crime was located within Mr. Elder’s home. The State also argued the Good Faith exception.
This case actually is interesting to me for two different reasons. Not only in regards to the Good Faith exception, but also in regards to how common it is for deputies around the state to enter homes and seize weapons based on DVPO paperwork. The DVPO can order the defendant to surrender all firearms, but it cannot authorize a deputy to enter the residence to search for weapons without having the necessary information required under 15A-241 through 259 which includes a finding of probable cause to believe that evidence of a crime exists within the home. I am surprised that legal advisers have not been discussing this 2014 case with deputies. I found absolutely no discussion on this case on the various NC law enforcement legal websites to include the NC SOG.