Suppose a superior court judge issues a search warrant authorizing the search of a suspect’s house for drugs. Officers execute the warrant, find drugs, seize them, and charge the suspect with drug offenses. The charges end up in superior court, where the suspect – now the defendant – moves to suppress, arguing that the search warrant application lacked probable cause and that the judge who issued the warrant erred in doing so. Is it OK for the judge who issued the warrant to hear such a motion? Continue reading
Tag Archives: motions to suppress
If you decide to read yesterday’s court of appeals opinion in State v. Miller, ___ N.C. App. ___ (May 17, 2016) do yourself a favor and skip to page 9. Not having the benefit of this advice, I got lost on page 3. At first, I thought my printer had malfunctioned, since page 3 seemed to be saying the same thing as page 2. But there’s no problem with my printer. I can’t say the same for the procedural history in this case. Tortured is not a sufficiently negative adjective to describe its path. Fortunately, things pick up half way through the opinion and an important rule emerges: The State may obtain a de novo hearing in superior court under G.S. 20-38.7(a) without setting forth the specific findings of fact to which it objects.
So that’s the rule. Unless the senior resident superior court judge says otherwise. You’re going to have to read the rest of this post to make sense of that.
Category: Motor Vehicles, Uncategorized | Tags: 20-38.7, 7A-41.1, DWI appeals, motions to suppress, senior resident superior court judge
You represent a defendant charged with DWI. You move to suppress evidence in district court. The district court enters a preliminary determination in your favor. The State appeals. The superior court disagrees with the district court and remands the case with instructions to deny your motion. Your client pleads guilty. You appeal to superior court. You want the court of appeals to consider the merits of your motion. What should you do to preserve that right?
Category: Motor Vehicles, Procedure | Tags: 20-38.6, 20-38.7, DWI, DWI motions, implied consent procedures, motions to suppress, State v. Hutton
Regular and well-publicized checkpoints are an important component of the State’s effort to curtail impaired driving. Checkpoints provide specific as well as general deterrence. A handful of impaired drivers typically are arrested at any given checking station and subsequently prosecuted for impaired driving. Many more drivers than are stopped hear about the checkpoint. That publicity increases the perception of drivers generally that if they drive while impaired, they are likely to be caught and punished.
A recent opinion from the court of appeals makes clear that if the State wants to rely on checkpoints to accomplish either objective, law enforcement agencies must comply with the statutory requirements set forth in G.S. 20-16.3A. That provision requires, among other things, that an agency conducting a checking station to determine compliance with the state’s motor vehicle laws operate under a written policy. The policy must provide guidelines for the pattern for stopping vehicles and for requesting drivers to produce driver’s license, registration and insurance information. The appellate court in State v. White held that the trial court did not err in suppressing evidence gathered at a checkpoint carried out by officers of a sheriff’s department that had no written policy. The absence of a written policy was a substantial violation of G.S. 20-16.3A, which warranted suppression of the evidence.
Facts. Three officers with the Anson County Sheriff’s Department conducted a “license check” checkpoint on September 11, 2009, pursuant to a checkpoint plan written by one of the officers. The department had no written policy for checking stations. The plan provided that the checkpoint was to begin at 7:55 p.m. at a designated intersection, that three specified officers would be present at the checkpoint, that the officers would wear their traffic vests, and that the “chase policy” would be in full effect. No ending time for the operation was stated in the plan.
The checkpoint began at the designated time and place, and the three named officers were present wearing safety vests. The blue lights on three police cars were activated. All of the vehicles approaching the checkpoint were stopped. Minutes after the checkpoint began, a driver was arrested for impaired driving. Two of the officers left the checkpoint to take the person to the sheriff’s office. One officer remained behind, but did not stop anyone until the other officers returned an hour and a half later. The defendant in White was stopped at the checkpoint around 11 p.m., about an hour after it resumed. The checkpoint ended at 11:20 p.m. with the defendant’s arrest on charges of driving while impaired and driving while license revoked.
Procedural History. The defendant was convicted of both charges in district court. He was sentenced at Level 1 for the DWI conviction, and ordered to serve six months of imprisonment. He was sentenced to 45 days imprisonment for driving while license revoked. The defendant appealed his convictions to superior court, where he moved to suppress all evidence resulting from the traffic stop on the basis that the checkpoint did not comply with G.S. 20-16.3A. The superior court granted the motion, concluding that the stop of the defendant after the checkpoint had been abandoned for more than an hour was “spontaneous,” and coupled with the lack of a written policy for the checkpoint resulted in a substantial violation of G.S. 20-16.3A that warranted suppression of the evidence. The trial court did not rule on the constitutionality of the checkpoint, noting that the evidence was suppressed solely for the statutory violation. The State appealed.
Holding. The court of appeals affirmed. The appellate court emphasized the unchallenged finding that the Anson County Sheriff’s Department had no written policy providing guidelines for motor vehicle law checking stations as mandated by G.S. 20-16.3A. The court concluded that the agency’s failure to comply with this requirement constituted a substantial violation of G.S. 20-16.3A.
The court rejected the State’s argument that suppression was not an authorized remedy since G.S. 15A-974 permits suppression only when the exclusion of evidence is required by the Constitution or the evidence was obtained as a result of a substantial violation of Chapter 15A. To rebut the State’s contention that G.S. 15A-974 was the sole source of the suppression remedy, the court cited impaired driving cases in which it had held that the violation of a defendant’s statutory implied consent rights in G.S. 20-16.2 requires suppression of the evidence obtained.
Moreover, the court noted that G.S. 20-16.3A itself indicates that suppression is appropriate for certain types of violations. G.S. 20-16.3A(d) provides that a violation of its provisions governing the placement of checkpoints is not grounds for a motion to suppress. The legislature’s expression of this principle for but one of the statutory requirements indicates that the violation of other requirements, such as the mandate in G.S. 20-16.3A(a)(2a) that the agency have a written policy, is a proper basis for a motion to suppress.
Remaining Questions. White is a significant case as it resolves the outstanding issue of whether violations of G.S. 20-16.3A may give rise to suppression of the evidence. They may. White does not, of course, resolve all of the issues that arise from irregularities in checking stations. One such issue is whether an officer’s departure from her agency’s written policy requires suppression. A departure so significant as to arise to unfettered discretion would violate the constitution, but what about lesser violations? Suppose the policy requires officers to ask each driver for his driver’s license and registration. One officer, without authorization, departs from this policy, figuring that she can determine from the license plate whether the registration is current. Another officer at the same checking station complies with the policy. Is the first officer’s violation substantial? White doesn’t answer this question. If, however, the trial court find the violation substantial, White requires suppression of the resulting evidence.
Category: Crimes and Elements, Evidence, Motor Vehicles, Uncategorized | Tags: Chapter 20, checking stations, checkpoints, DWI, motions to suppress, statutory violations
Local law enforcement officers have a little bit of extra territorial jurisdiction when it comes to investigating impaired driving. That grant of extra territorial jurisdiction (as opposed to extraterritorial jurisdiction, which city officers already had) was created by the Motor Vehicle Driver Protection Act of 2006 and codified in G.S. 20-38.2.
General Rules.
G.S. 15A-402 sets forth the rules that generally govern the territorial jurisdiction of such officers.
County law enforcement officers. County officers may arrest persons anywhere within the county and outside of the county on any county-owned property. They also may arrest people outside of these areas when the person has committed a criminal offense within one of these areas for which the officer could have arrested the person and the arrest is made during the person’s immediate and continuous flight from the territory. County officers also may arrest persons anywhere in North Carolina when the arrest is based upon a felony committed within the county or on county-owned property.
Municipal law enforcement officers. Law enforcement officers of cities may arrest people within the city, within one mile of the corporate limits of the city, and on any city-owned property outside of the city. They also may arrest people outside of these areas when the person has committed a criminal offense within one of these areas for which the officer could have arrested the person and the arrest is made during the person’s immediate and continuous flight from the territory.
Campus police. Campus police officers may arrest people on property owned by or leased to the institution employing the officer and any portion of public road passing through the property or immediately adjoining it. A campus police officer may arrest a person outside his or her territorial jurisdiction when the person arrested has committed a criminal offense within the territorial jurisdiction, for which the officer could have arrested the person within that territory, and the arrest is made during the person’s immediate and continuous flight from that territory. Institutions may enter into joint agreements with municipalities to extend the law enforcement authority of campus police officers into the municipality’s jurisdiction. G.S. 115D-21.1; 116-40.5.
G.S. 20-38.2.
Notwithstanding the general limitations set forth above, a law enforcement officer who is investigating an implied-consent offense or a vehicle crash that occurred in the officer’s territorial jurisdiction may
- investigate and seek evidence of the driver’s impairment anywhere in-state or out-of-state, and
- may make arrests anywhere within the state.
Thus, this provision broadens the jurisdiction of county law enforcement officers over misdemeanor implied consent offenses, like impaired driving, and expands the jurisdiction of municipal law enforcement officers and campus police officers for all such offenses.
Expanded Jurisdiction – Not Statewide Jurisdiction. Since the expanded jurisdiction granted by G.S. 20-38.2 is limited to implied consent offenses or crashes that occurred within the officer’s territorial jurisdiction, G.S. 20-38.2 does not vest local law enforcement officers with the statewide territorial jurisdiction enjoyed by other state officers such as members of the state highway patrol, who are authorized to make arrests throughout the state for any crime committed in their presence and for any crime committed on any highway. G.S. 20-188 (providing that members of the State Highway Patrol have “jurisdiction anywhere within the State, irrespective of county lines”).
Practical Impact. The provision allowing a law enforcement officer to investigate implied consent offenses anywhere in the state appears to allow a law enforcement officer to seek the withdrawal of a suspect’s blood at a hospital located outside of his or her territory. It may also allow a local law officer to transport a defendant for breath testing outside of the officer’s territory, though the court of appeals held even before the enactment of G.S. 20-38.2 that such out-of-territory testing was not a statutory violation, and, even if it was, it did not warrant suppression of the resulting evidence. See State v. Pearson, 131 N.C. App. 315, 317-18 (1998). In any event, G.S. 20-38.3(2) explicitly authorizes a law enforcement officer to take a person arrested to any place in the state for one or more chemical analyses and for evaluation to determine the extent or cause of the person’s impairment. G.S. 20-38.2 also permits a law enforcement officer to follow a suspected impaired driver out of his or her city or county to arrest the person, even if the person is not fleeing from the officer. But in most cases, the officer will make the stop within his or her general territory.
This, combined with the limited success motions to suppress based on territorial violations have enjoyed in the appellate courts, see, e.g., State v. Scruggs, 209 N.C. App. 725, 730 (2011), leads me to suspect that the enactment of G.S. 20-38.2 has effected little change in law enforcement officers’ practices. If you see it otherwise, please share your view of the provision’s impact.
Category: Crimes and Elements, Motor Vehicles, Procedure, Uncategorized | Tags: 20-38.2, DWI, implied consent offenses, motions to suppress, territorial jurisdiction
The court of appeals decided its first post-Missouri v. McNeely alcohol exigency case yesterday. The court in State v. Dahlquist determined that the four to five hours that the arresting officer estimated would have elapsed had he first traveled to the intake center at the jail to obtain a search warrant and then taken the defendant to the hospital for a blood draw constituted an exigency sufficient to excuse the Fourth Amendment’s warrant requirement. Thus, the Dahlquist court held that the trial court properly denied the defendant’s motion to suppress as the warrantless withdrawal of the defendant’s blood at a nearby hospital over his objection was lawful. What’s most interesting about the case is not its holding, presaged by State v. Fletcher, 202 N.C. App. 107 (2010), and McNeely itself, but instead its dicta. The court stated that while it found an exigency in this case, officers should consider amending their post-arrest procedures in future cases in two respects. First, where the technology is available, they should testify in support of search warrants by videoconference as authorized by G.S. 15A-245. Second, rather than estimating wait times based on past experience, officers should call magistrates’ offices and hospitals to obtain current information about wait times.
Facts. Dahlquist was a relatively routine impaired driving case. The defendant was stopped at a DWI checkpoint in the Charlotte area in the early morning hours. He smelled strongly of alcohol, admitted to drinking, and failed several field sobriety tests. He was arrested for DWI and taken to a Blood Alcohol Testing (“BAT”) mobile for purposes for a breath test. He refused to submit to the test. The officer then took the defendant to Mercy Hospital where his blood was drawn without his consent.
Procedural history. The defendant moved in superior court to suppress the evidence of his alcohol concentration obtained from the warrantless withdrawal of his blood. The superior court denied the motion, and the jury found him guilty of driving while impaired. The defendant appealed the denial of his motion to suppress.
Court of appeals opinion. The appellate court noted the Supreme Court’s holding in McNeely that the natural dissipation of alcohol, standing alone, does not create an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement. As a result, whether an exigency exists must be determined case by case based on a totality of the circumstances. Thus, the question before the Dahlquist court was whether the circumstances in that case gave rise to an exigency sufficient to justify a warrantless search.
As previously noted, the trial court concluded that they did, and the court of appeals agreed. The officer took the defendant directly to the hospital because “he knew that over time the amount of alcohol in blood dissipates.” Slip op. at 7. The officer also “knew from his years of experience” that the hospital was fifteen minutes away and that he could obtain a sample of the defendant’s blood from hospital staff within an hour after arriving. Id. The officer “surmised from his past experience that, on a weekend night, it would take between four and five hours to obtain a blood sample if he first had to travel to the [magistrate’s office] to obtain a search warrant.” Slip op. at 8.
Dicta. After concluding that the trial court properly denied the defendant’s motion to suppress, the court of appeals elected to “elaborate on one point” related to the procedure for obtaining a warrant, namely “advances in technology,” a topic also addressed in McNeely. The Supreme Court in McNeely noted that federal magistrate judges may issue warrants based on information communicated by telephone or other electronic means and that most states allow police or prosecutors to apply for search warrants remotely using the telephone, video-conferencing and electronic communication. The Dahlquist court noted that G.S. 15A-245(a) was amended in 2005 to allow a search warrant to be issued based on audiovisual transmission of oral testimony under oath or affirmation from a sworn law enforcement officer to the issuing official. (Before this procedure may be used, the senior resident superior court judge and chief district court judge must obtain the approval of the Administrative Office of the Courts.) Yet the officer in Dahlquist assumed he had only two options: (1) travel to the magistrate’s office and risk the loss of evidence; or (2) proceed to the hospital without a warrant. The court encouraged officers to consider the option of testifying in support of search warrants by videoconference.
As noted earlier, the court also said that the “better practice in such cases might be for an arresting officer, where practical, to call the hospital and the [magistrate’s office] to obtain information regarding the wait times on that specific night, rather than relying on previous experiences.”
Practical concerns. When G.S. 15A-245 was amended in 2005 to allow officers to testify in support of search warrants by videoconference, my colleague John Rubin pointed out that that the act amending the statute, S.L. 2005-334, did not “address various implementation issues—for example, how the testimony will be memorialized and served.” John Rubin, Criminal Law and Procedure, North Carolina Legislation 2005, at 85 (Martha Harris, ed. 2006) (noting that the federal rules require that testimony be recorded, transcribed and certified as accurate by the issuing official; in addition, the issuing official must prepare an original warrant and the applicant must prepare a duplicate warrant for service). Whether as a result of these issues or the lack of available technology, my sense is that few, if any jurisdictions, use this procedure.
Bottom line. Police departments, in consultation with the courts in their districts, would be wise to consider whether using video-conference testimony from officers would expedite the process of obtaining a search warrant in impaired driving cases. While the Dahlquist court determined that the time required for the arresting officer to apply for the warrant in person created an exigency in that case, its commentary indicates that the court may, in a future case, factor the availability of videoconferencing technology into its totality of the circumstances analysis.
Moreover, officers shouldn’t guess at wait times when there is a practical alternative such as calling ahead. Dahlquist strongly hints that such estimates, even when based on experience, may weigh less heavily in the State’s favor in subsequent cases.
Category: Motor Vehicles, Search and Seizure | Tags: DWI, exigency, Missouri v. McNeely, motions to suppress, search warrant
The State’s failure to accord a defendant his or her statutory implied consent rights as set forth in G.S. 20-16.2 may render the results of any ensuing breath test inadmissible. When a defendant moves to suppress breath test results based on such a violation, questions frequently arise regarding whether the State bears the burden of demonstrating compliance with implied consent procedures or whether the defendant bears the burden of proving a statutory violation. The answer, as with so many things, depends on the nature of the alleged violation. Here’s my take on how the burdens play out in various contexts.
Notification of Rights. The State bears the burden of establishing that the defendant was notified of his or her statutory implied consent rights pursuant G.S. 20-16.2. See State v. Shadding, 17 N.C. App. 279 (1973) (holding that State’s failure to establish that the defendant was advised of his statutory rights following defendant’s objection to the admission of his breath test results on the basis that he had not been accorded those rights rendered the results of the breath test inadmissible); see also State v. Fuller, 24 N.C. App. 38 (1974) (failure of State to establish that officer advised defendant of his right to have an additional test administered by a qualified person of his own choosing rendered breath test result inadmissible).
Right to Delay Testing for 30 minutes. Among the implied consent rights is the right to call an attorney for advice and to select a witness to view the testing procedures. G.S. 20-16.2(a)(6) provides that testing may be delayed for 30 minutes to allow the defendant to exercise these rights. To be entitled to the delay, the defendant must affirmatively indicate his intention to call a lawyer or have a witness present. See McDaniel v. Div. of Motor Vehicles, 96 N.C. App. 495, 497 (1989). A defendant who fails to so affirmatively indicate waives his statutory right to delay the test. Id.
Case law does not make clear which party bears the burden of establishing that the defendant exercised his intention to contact an attorney or witness in the context of a motion to suppress for denial of that right. Given that the defendant must affirmatively indicate this intention to trigger the delay, perhaps the defendant moving for suppression likewise bears the burden of proving that he or she was entitled to, and not afforded, the delay. On the other hand, given that the defendant has a statutory right to the delay, perhaps the State must prove, in circumstances in which the test was not delayed for 30 minutes, that the defendant was afforded that right and that the defendant did not affirmatively indicate any desire to contact an attorney or witness.
In any event, it appears that the defendant must show that a witness arrived within the 30 minutes to be entitled to suppression of the breath test results for failure to delay testing. 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. Thus, it may not matter much who bears the burden of proving the defendant was entitled to a delay, since the defendant bears the burden of proving prejudice—or at least consequences—resulting from the failure to delay.
Right to Witness. Denial of the defendant’s right to have a witness view the testing requires 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.
A witness who has been selected to observe the testing procedures must arrive within the statutorily allotted 30 minutes and must make reasonable efforts to gain access to the defendant in order to view the test. Hatley, 190 N.C. App. at 642-43 (citing State v. Ferguson, 90 N.C. App. 513 (1988)). Because these facts are typically in the possession of the defendant, it seems likely that the defendant bears the burden of proving their existence.
