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.