I discussed the inevitable discovery exception in my last post. This post will discuss the independent source exception, particularly the United States Supreme Court cases of Segura v. United States, 468 U.S. 796 (1984), and Murray v. United States, 487 U.S. 533 (1988), and related North Carolina cases. It should be noted that the independent source exception was initially adopted in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), and can apply to investigations involving Fourth, Fifth, or Sixth Amendment violations. Continue reading
Tag Archives: exclusionary rule
Two important exceptions to exclusionary rules under the federal constitution were adopted by the United States Supreme Court within a month of each other in 1984: (1) the inevitable discovery exception in Nix v. Williams, 467 U.S. 431 (1984), and (2) the independent source exception in Segura v. United States, 468 U.S. 796 (1984); see also the later case of Murray v. United States, 487 U.S. 533 (1988). These two exceptions continue to be litigated. This post will discuss the inevitable discovery exception, and my next post will discuss the independent source exception. Continue reading →
(Author’s note: The concluding paragraph of this post was amended after its publication to include the number of outstanding warrants and orders for arrest on July 1, 2016.)
Every year, the June trifecta throws me off my game. First, school lets out so I have to acclimate to a schedule of camps that vary in operating hours, locations, necessary equipment, and participating child. Second, the district court judges convene for their annual conference where I join them to oversee the program and to lecture about criminal law cases decided since the previous October. Third, the United States Supreme Court winds up its term, invariably deciding significant criminal law cases the very week of the conference. Since judges are no better than my children in cutting me a little slack (Am I really the only mother who didn’t know you needed to bring a racket to tennis camp?), they bombarded me the day the conference began to ask about the attenuation doctrine and its application in Utah v. Strieff (decided the day before). I mumbled something about the Christian burial speech and quickly asked how their summers were going. Now that June is behind me, I’ve collected my thoughts and am prepared to talk about Strieff.
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.
Kelvin Wilson’s DWI case made the front page of Lawyer’s Weekly last January. Wilson was arrested for impaired driving in Winston-Salem and taken to the hospital. When he physically resisted having his blood drawn, a police officer sat on him to facilitate the extraction. The blood evidence was suppressed (with the State’s agreement) at Wilson’s trial in superior court. Nevertheless, the trial court dismissed the charges on the basis that the blood draw violated Wilson’s constitutional rights. The State appealed, and the court of appeals issued an opinion yesterday reversing the trial court.
Folks who were hoping that the court’s opinion might clarify how much force officers can use to compel a blood draw will be disappointed as the court did not reach that issue. Instead, the court resolved the case on procedural grounds, holding that the trial court had no authority to dismiss the DWI charges as a remedy for the alleged constitutional violations. Even though the case doesn’t flesh out the constitutional framework for use of force, its holding regarding the permissible remedies for constitutional violations is significant because it clarifies an area in which confusion frequently arises.
The trial court in Wilson dismissed the DWI charges pursuant to G.S. 15A-954(a)(1), which requires dismissal if “[t]he statute alleged to have been violated is unconstitutional on its face or as applied to the defendant.” The court of appeals explained that this provision “plainly concerns the statute under which a defendant is charged.” For dismissal of DWI charges to be warranted under G.S. 15A-954(a)(1), a court must conclude that the DWI statute itself—G.S. 20-138.1—is unconstitutional. The trial court in Wilson’s case made no such findings with respect to G.S. 20-138.1, and its conclusion that G.S. 20-139.1 was unconstitutional as applied was no proxy. Thus, the court of appeals held that the trial court erred in dismissing the charges under G.S. 15A-954(a)(1).
The defendant’s motion to dismiss had asserted another basis for dismissal, namely that his constitutional rights had been flagrantly violated, resulting in such irreparable prejudice to the preparation of his case that there was no remedy but to dismiss the prosecution, grounds that require dismissal under G.S. 15A-954(a)(4). Yet, the appellate court noted that the defendant’s motion failed to describe the irreparable prejudice that resulted from the violation, the trial court made no finding of irreparable prejudice, and the defendant did not argue on appeal that he was irreparably prejudiced. Because the appellate court identified no irreparable prejudice, it concluded that G.S. 15A-954(a)(4) did not apply to Wilson’s case.
Accordingly, the court of appeals concluded that there were no statutory grounds for dismissing the DWI charges; thus, the trial court erred in granting the defendant’s motion to dismiss. The appellate court characterized the appropriate argument based on the constitutional violations alleged in Wilson as one for suppression of the evidence and declared that suppression was the only available remedy if a constitutional violation was found. The court noted that in Wilson’s case, suppression was required in light of the State’s stipulation that it would not introduce the challenged evidence at trial. See G.S. 15A-977(b)(2).
What are the broader take-aways from Wilson? The remedies of suppression and dismissal aren’t interchangeable. While suppression of evidence may be a proper remedy when evidence is obtained in violation of the defendant’s constitutional rights, a constitutional violation by itself does not provide a basis for dismissal of charges. Wilson also provides a helpful backdrop for considering the remedies for alleged statutory violations, particularly in DWI cases. Though our courts have sanctioned the suppression of chemical analysis results obtained in violation of statutory procedures, dismissal of charges for such statutory violations is not authorized. Indeed, the only context in which dismissal of DWI charges for statutory violations is authorized is when a defendant demonstrates prejudice resulting from a violation of statutory rights related to pretrial release.
Virtually all courts interpreted Belton v. New York, 453 U.S. 454 (1981), to authorize a law enforcement officer to search the passenger compartment of a motor vehicle incident to the arrest of any recent occupant of the vehicle. Then the Supreme Court decided Arizona v. Gant, 556 U.S. __ (2009), discussed here, among other places. In Gant, the Court dramatically curtailed the Belton rule, holding that an officer may not search the passenger compartment of a motor vehicle incident to the arrest of a recent occupant unless the arrestee is unsecured and could reach into the vehicle to access weapons or destroy evidence or there is reason to believe that evidence of the crime of arrest may be found in the vehicle.
This shift in the law meant that, in a number of cases across the country, officers conducted vehicle searches under Belton, found incriminating evidence, and charged defendants accordingly, only to see Gant come down while the cases were pending. The exultant defendants argued that Gant applied retroactively to pending cases, while officers bemoaned the possible exclusion of evidence that they had seized in compliance with established law.
Last week, in Davis v. United States, the Supreme Court addressed this set of cases and held that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” In essence, the Court reasoned, officers acting under established precedent are doing nothing wrong. Since the point of the exclusionary rule is to deter police misconduct, and in this type of case there is no police misconduct to deter, there is no reason to suppress any evidence obtained by the officers: “Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield meaningful deterrence, and culpable enough to be worth the price paid by the justice system [due to the exclusion of relevant evidence].” Thus, the Court concluded, although Gant does apply retroactively to cases pending when it was decided, rendering many police searches of vehicles unconstitutional, the exclusionary rule should not be applied to those searches because the searches were conducted in good faith reliance on (seemingly) settled law. Justice Alito wrote the opinion, joined by six other Justices.
The dissent – by Justice Breyer, joined by Justice Ginsburg – argued that declining to apply the exclusionary rule to this category of cases effectively undermines the retroactivity of Gant: if the exclusionary remedy isn’t available retroactively, the dissenters reasoned, it is meaningless to say that the rule itself is retroactive. The dissenters also contended that whether there is “binding appellate precedent” on an issue is often debatable, making the majority’s rule unworkable. Finally, they argued that focusing on officers’ culpability risks destroying the exclusionary rule altogether, because “[i]n many, perhaps most [contested Fourth Amendment cases] the police . . . will have acted in objective good faith.”
A few questions about Davis. First, will North Carolina’s appellate courts follow Davis, or will they reject this good faith exception as they rejected the Leon good faith exception for reliance on a faulty warrant in State v. Carter, 322 N.C. 709 (1988)? I can imagine arguments both ways.
Second, if the state had argued for a good faith exception in Gant, would the Court have denied relief to the defendant in that case? I don’t know how firmly established the Arizona courts’ interpretation of Belton was, but it seems possible, at least, that the defendant in Gant could have won the Fourth Amendment battle but lost the exclusionary rule war.
Third, might the reasoning of Davis extend to at least some cases not governed by binding precedent? Consider a case in which an officer confronts a Fourth Amendment gray area and makes a reasonable choice, but one that a court later rules was wrong. Might the state argue that because the officer didn’t do anything culpable, the exclusionary rule should not apply? Justice Sotomayor’s concurrence notes that this issue was not before the Court in Davis but seems to suggest that she would not extend the good faith exception to the exclusionary rule to such a case. Notably, no other Justice joined her concurrence.
Finally, and more broadly, are we watching the slow evolution of the exclusionary rule from being the presumptive remedy for most Fourth Amendment violations towards being a remedy principally for intentional misconduct by officers? The majority asserts that the exclusionary rule’s “sole purpose . . . is to deter future Fourth Amendment violations,” and that “the deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue.” If that’s so, it’s easy to imagine future limitations of the exclusionary rule along the lines envisioned by the dissent. Whether that’s a good thing or a bad thing, of course, will depend on your point of view.
[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.
North Carolina’s appellate courts have long said that a proceeding to revoke probation is not a criminal prosecution or a formal trial. Instead, probation hearings are generally regarded as informal or summary. State v. Hewett, 270 N.C. 348 (1967). Formal rules of evidence do not apply at violation hearings, meaning hearsay is generally admissible. G.S. 15A-1345(e).
But what about illegally obtained evidence? In State v. Lombardo, 306 N.C. 594 (1982), our supreme court said that the fruits of an unlawful search can be admitted in a probation violation hearing.
The particular facts of the Lombardo case may have had something to do with its outcome. Officers at Miami International Airport found marijuana in the defendant’s bag just fifteen days after he was placed on probation in North Carolina for . . . selling marijuana. The drug evidence was excluded at Lombardo’s criminal trial on drug possession charges in Florida (the officers lacked a constitutionally sufficient basis to search him), but our appellate courts said it was admissible at his probation violation hearing in North Carolina. The court reasoned that the primary purpose of the exclusionary rule is to deter police misconduct by rendering illegally obtained evidence inadmissible at trial. Unless an officer knows that a person he searches or seizes is on probation, extending the application of the exclusionary rule to probation hearings would add nothing to that deterrent effect. Moreover, the court said, excluding the evidence would “severely damage our probation system” by rewarding defendants like Lombardo “who show a total disregard for the system.” 306 N.C. at 600–01. In so holding, the court expressly overruled State v. McMilliam, 243 N.C. 775 (1956).
A few years later Lombardo’s case came back before the court of appeals. State v. Lombardo, 74 N.C. App. 460 (1985). In that iteration Lombardo maintained that the supreme court had limited its holding in his earlier appeal to situations where officers were unaware of a suspect’s status as a probationer. Ready to assert that the officers at the Miami airport did know he was on probation, Lombardo argued that the drug evidence should be suppressed at his revocation hearing just as it was at his criminal trial. The court of appeals disagreed. The panel acknowledged the logic of the defendant’s argument but concluded that the supreme court “did not expressly qualify its holding to exclude the rule’s application to [probation violation hearings] upon the law enforcement official being unaware of the probationer’s status.” Id. at 463.
Our courts’ position that the exclusionary rule does not apply at revocation hearings puts us in line with most other jurisdictions. The leading case nationwide is Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998), in which the Supreme Court concluded that the exclusionary rule did not bar evidence seized in violation of the Fourth Amendment from use at a parole revocation hearing. After Scott, the federal circuits– including the Fourth Circuit in State v. Armstrong, 187 F.3d 392 (4th Cir. 1999) (overruling United States v. Workman, 585 F.2d 1205 (4th Cir. 1978), in light of Scott)—have fallen into line. A few states hold that the exclusionary rule applies as a matter of state constitutional law, see, e.g., State v. Dodd, 419 So. 2d 333 (Fla. 1982), and other courts have developed special exceptions to the general inapplicability of the rule, such as when the police harass a probationer or obtain evidence in a particularly offensive manner, see People v. Holliday, 743 N.E.2d 587 (Ill. App. 2001) (excluding drug evidence found during an improper search of a probationer’s crotch area).
Even if the exclusionary rule doesn’t apply as a constitutional matter, there is an argument that our statutory exclusionary rule in G.S. 15A-974(2) might operate to exclude evidence “obtained as a result of a substantial violation of the provisions of [Chapter 15A].” That statutory section itself does not spell out the proceedings to which it applies. It’s pretty clear in context, though, that the article in which that law appears (Article 53 of Chapter 15A) is meant to apply to criminal trials—which would not include revocation hearings.
Dan Defendant is charged with and arrested for driving while impaired. He is taken to a law enforcement center for administration of a chemical analysis. At 2:00 a.m., the chemical analyst informs Dan of his implied consent rights, as set forth in G.S. 20-16.2. Dan indicates that he wishes to call a witness. Dan calls his roommate, who does not answer the phone. Dan leaves a message asking his roommate to come immediately to the law enforcement center to view the test. At 2:27 a.m., the chemical analyst requests that Dan submit to a chemical analysis by blowing into the Intoximeter. Dan complies. The Intoximeter reports a breath alcohol concentration of 0.10. After taking the test, Dan is taken before the magistrate for an initial appearance. Dan’s roommate does not appear at the law enforcement center or magistrate’s office; nor does anyone else appear to see Dan. Dan moves before trial to suppress the Intoximeter results on the basis that the chemical analyst failed to delay the test for thirty minutes to allow the witness time to arrive as required by G.S. 20-16.2(a)(6). How should the judge rule on the motion to suppress?
While G.S. 15A-974(2) requires the suppression of evidence obtained as a result of a substantial violation of Chapter 15A, no statute requires the suppression of evidence obtained in violation of Chapter 20, which contains the provisions governing implied consent. Nevertheless, in opinions spanning four decades, North Carolina’s appellate courts have suppressed chemical analysis results based upon statutory violations related to their administration. The line of cases providing this remedy begins with State v. Shadding, 17 N.C. App. 279 (1973), a case decided four years after the legislature’s enactment of the statute requiring that a person be informed of certain implied consent rights before administration of a chemical analysis. In Shadding, the court held that upon objection by a defendant to evidence of the results of a breath test on the grounds that he or she was not notified of the right to call an attorney and select a witness, a trial court must conduct a hearing and find as a fact whether the defendant was so notified. If the trial court finds that a defendant was notified, it must also determine whether the “test was delayed (not to exceed thirty minutes from time defendant was notified of such rights) to give defendant an opportunity to call an attorney and select a witness to view the testing procedures, or whether defendant waived such rights after being advised of them.” Id. at 283. Reasoning that “[s]uch rights of notification, explicitly given by statute, would be meaningless if the breathalyzer results could be introduced into evidence despite non-compliance with the statute,” the court held that the State’s failure to offer evidence regarding whether Shadding was advised of his rights under G.S. 20-16.2(a) rendered results of the breath test inadmissible. Id. at 282-83. Furthermore, the court explained that when a defendant is advised of such rights, and does not waive them, “the results of the test are admissible in evidence only if the testing was delayed (not to exceed thirty minutes) to give defendant an opportunity to exercise such rights.” Id. at 283.
In State v. Fuller, 24 N.C. App. 38 (1974), the court relied upon Shadding in holding that the results of the defendant’s breath test were improperly admitted into evidence. In Fuller, the officer who administered the test testified that he advised the defendant of his right to refuse to take the test, his right to have witnesses and an attorney present, and that he would be afforded thirty minutes to obtain the witness. Fuller alleged, however, that he was not advised of his right to have an additional test administered by a qualified person of his own choosing. Holding that the State’s failure to prove that the defendant was accorded this statutory right rendered the test results inadmissible, the court commented that if the failure to advise of the rights set forth in G.S. 20-16.2 “is not going to preclude the admission in evidence of the test results, the General Assembly must delete the requirement.” Id. at 42.
Not surprisingly, the court of appeals has deemed denial of the rights promised in the notice required by G.S. 20-16.2(a), like denial of notice itself, to require suppression of test results. Thus, in State v. Myers, 118 N.C. App. 452 (1995), the court held that breath test results were improperly admitted as the defendant was denied the right to have his wife witness the breath test. Myers told the officer that he wanted his wife to come into the breath testing room and the officer said “that might not be a good idea because she had been drinking also.” Id. at 453. The court found the officer’s statement “tantamount to a refusal of that request,” which barred admission of the results at trial. Id. at 454. Likewise, in State v. Hatley, 190 N.C. App. 639 (2008), the court held that suppression of the defendant’s breath test results was required as the defendant called a witness who arrived at the sheriff’s office within thirty minutes and told the front desk duty officer that she was there to see the defendant and yet was not admitted to the testing room. Neither Myers nor Hatley demonstrated irregularities in the breath-testing procedures or that having a witness present would have facilitated their defense of the charges. The court of appeals required no such showing, holding that the denial of the right required suppression of the results without any corresponding demonstration of prejudice.
Yet, in a couple of limited instances, the court of appeals has required that the defendant demonstrate prejudice–or at least consequences–resulting from a statutory violation to be entitled to relief. In State v. Buckner, 34 N.C. App. 447 (1977), the defendant argued that it was error for the court to admit the result of his breath test, which was administered after the arresting officer observed him for only twenty minutes, rather than the thirty minutes provided by statute. The defendant, who made a phone call after being advised of his implied consent rights, argued that the State was required to demonstrate that he waived the right to have an attorney or witness present to introduce the result of the test. The court rejected the defendant’s argument, pointing to the defendant’s failure to contend that a witness or lawyer was “on the way to the scene of the test” or “that an additional 10 minutes would have resulted in any change of status.” Id. at 450. The court held that a delay of less than thirty minutes was permissible as there was no evidence “that a lawyer or witness would have arrived to witness the proceeding had the operator delayed the test an additional 10 minutes.” Id. at 451. In so holding, the court effectively elevated the showing required of a defendant in such a case to include the demonstration that being afforded the right would have enabled its exercise.
The court imposed a similar requirement in State v. Green, 27 N.C. App. 491 (1975). In that case, the officer “garbled” the notice of the defendant’s right to have an independent test performed, implying that the defendant could call a qualified person to administer the initial chemical analysis rather than informing him that he could have a subsequent independent test. Id. at 495. The court held that this irregularity did not require suppression of the breath test results, concluding that “had defendant availed himself of the right given, even as given, the officer would have gotten the person requested and would have undoubtedly known that the purpose was to have an additional test administered.” Id. The court further commented: “We cannot see how the defendant could possibly have been prejudiced.” Id.
What distinguishes Buckner from Myers and Hatley? Green from Shadding and Fuller? Certainly, they represent different degrees of violation. In Myers and Hatley, live witnesses were turned away or denied admittance, while in Buckner the defendant merely was denied the full thirty minutes afforded him by statute to procure a potential witness’s appearance. And in Shadding and Fuller, notice was all together lacking, not just garbled as it was in Green. Other than differential treatment based upon severity of the violation, I’m at a loss for why the court looked for harm or, at least a changed status, resulting from the violations in Buckner and Green but not in the other cases. Readers, if you can identify a more principled basis for the distinction, please share it.
So let’s return to the scenario described at the beginning of the post. Dan Defendant’s statutory rights arguably were violated as the officer failed to afford Dan thirty minutes in which to exercise the right to contact an attorney or obtain a witness before taking the test. The question is whether Dan must demonstrate something more to warrant relief. Buckner indicates that he must. Given that no one appeared to witness Dan’s test within the thirty minutes for which it could have been delayed, Dan cannot demonstrate that the failure to postpone the test an additional three minutes resulted in his inability to have a person witness the test. Thus, denial of Dan’s motion to suppress is the appropriate ruling.
There’s a new batch of opinions from the court of appeals today. One is State v. Reavis, a case that raises a question I’ve been asked several times recently in different contexts: what’s a motion to suppress, and how does it differ from a simple objection to the admission of evidence, and from a motion in limine? In Reavis, the issue arose in the context of G.S. 15A-975, which generally requires motions to suppress to be filed before trial in superior court. But the same issue comes up in DWI cases because of G.S. 20-38.6, which likewise provides that “[t]he defendant may move to suppress evidence . . . only prior to trial,” subject to limited exceptions. In DWI cases and in superior court cases, then, it can be very important to know whether a particular motion is a “motion to suppress.” If the motion is a motion to suppress, but it is not made prior to trial, it will be barred as untimely.
The relationship between a motion to suppress and a motion in limine is clearly explained in our case law. “[A] motion in limine is a preliminary or pretrial motion. . . . Article 53 of Chapter 15A deals with a specific type of a motion in limine and that is the motion in limine to suppress evidence. . . . The fact that it is a motion to suppress denotes the type of motion that has been made. The fact that it is also a motion in limine denotes the timing of the motion regardless of its type.” State v. Tate, 300 N.C. 180 (1980). In other words, a motion to suppress made before trial is a variety of motion in limine. A mid-trial motion to suppress is not a motion in limine.
It’s a little harder to figure out the relationship between a motion to suppress and an objection to the admission of evidence, the latter of which is sometimes also called a motion to exclude evidence. Both types of motions have the same objective: keeping evidence out. So what’s the difference?
The General Statutes seem like a good place to start. Although there’s no statutory definition of the phrase “motion to suppress,” G.S. 15A-974 is of some relevance. It states that “[u]pon timely motion, evidence must be suppressed if . . . [i]ts exclusion is required by [the state or federal constitutions]; or . . . [i]t is obtained as a result of a substantial violation of the provisions of [Chapter 15A].” If that’s an implicit definition of a motion to suppress, though, it’s surprisingly broad. It would suggest that, for example, a defendant’s Confrontation Clause objection to the state’s use of a substitute analyst in a drug case is a motion to suppress, because it is grounded in the Constitution. Maybe that’s right, but my sense is that Confrontation Clause issues usually aren’t raised prior to trial, and our appellate courts have been willing to review cases in which the defendant makes only a mid-trial objection to the evidence in question. See, e.g., State v. Craven, __ N.C. App. __, 696 S.E.2d 750 (2010). On the other hand, if G.S. 15A-974 effectively defines “motion to suppress,” it is also surprisingly narrow, because established justifications for suppression – such as the denial of a DWI defendant’s right to have a witness observe a breath test for alcohol, see, e.g., State v. Hatley, 190 N.C. App. 639 (2008) – are mandated neither by the state or federal constitutions nor by Chapter 15A.
In State v. Wilson, 293 N.C. 47 (1977), the state supreme court said in passing that the first prong of G.S. 15A-974 requires suppression only “when the evidence sought to be suppressed is obtained in violation of [a] defendant’s constitutional rights.” The emphasis on how the evidence is obtained also appears in the commentary to G.S. 15A-974, which refers to “evidence gathered in violation of constitutional rights.” This is also in keeping with how the phrase “motion to suppress” is defined in the federal courts. Rule 12(b)(3) of the Federal Rules of Criminal Procedure requires motions to suppress to be filed prior to trial. The scope of the Rule was addressed in United States v. Barletta, 644 F.2d 50 (1st Cir. 1981) (citations omitted):
The first question presented by these provisions is the scope of the terms “suppress” and “exclude.” At least as used in 12(b), “suppress” has a rather definite and limited meaning, as explained by the Advisory Committee notes accompanying the Rule. Motions to suppress are described as “objections to evidence on the ground that it was illegally obtained,” including “evidence obtained as a result of an illegal search” and “other forms of illegality such as the use of unconstitutional means to obtain a confession.” Put generally, then, suppression motions concern the “application of the exclusionary rule of evidence,” or matters of “police conduct not immediately relevant to the question of guilt”; motions to exclude comprise all other evidentiary matters.
I admit that there are many cases in which the phrase “motion to suppress” is used to describe other types of motions, but the analysis in Barletta, which focuses on the exclusion of evidence as a sanction for police misconduct strikes me as about right. But see State v. Fewerwerker, 492 N.E.2d 873 (Ohio Ct. App. 1985) (categorizing as a motion to suppress defendant’s motion to prevent witness from testifying on the basis of a privilege); State v. Myers, 625 P.2d 1111 (Kan. 1981) (holding that trial court properly granted a pretrial motion to suppress raising a Confrontation Clause issue). Applying the Barletta standard to the examples discussed above, a motion based on an officer’s failure to accord a DWI defendant her implied consent rights would be a motion to suppress, but most Confrontation Clause objections would not be. Both results appear to be consistent with most of our case law, and arguably to comport with judicial economy (because Confrontation Clause issues will very often be bound up with other evidentiary issues at trial, while concerns about an officer’s investigatory conduct are often stand-alone issues than can be explored in a discrete pretrial hearing).
Even if “motion to suppress” means something like “motion seeking to exclude evidence as a sanction for police misconduct in obtaining it,” there will be some gray areas. For example, if a defendant admits that the police seized an item of physical evidence legally, but contends that they then “lost” or destroyed it before trial in bad faith and that the state therefore should be precluded from introducing testimony about the evidence, is the defendant making a motion to suppress or a motion to exclude? Cf. generally Arizona v. Youngblood, 488 U.S. 51 (1988) (discussing destruction of evidence claims generally). As always, I welcome your thoughts.