In opinions spanning four decades, North Carolina’s appellate courts have suppressed chemical analysis results in impaired driving cases based on statutory violations related to their administration. When the violation consists of the State’s failure to advise a defendant of her implied consent rights, the appellate courts’ jurisprudence has been straightforward and consistent: The results of an implied consent test carried out without the defendant having first been advised of her implied consent rights are inadmissible. Indeed, the court of appeals reaffirmed that principle last June in State v. Williams, __ N.C. App. ___, 759 S.E.2d 350 (2014), holding that the State’s failure to re-advise the defendant of his implied consent rights before conducting a blood test under the implied consent statutes required suppression of the test results. A court of appeals opinion issued in the waning hours of 2014 indicates, however, that the rule is subject to at least one exception. Continue reading
Tag Archives: suppression
That’s what I said to my husband during the breakfast hour this morning, while I was working as a short-order cook and waitress for three rather demanding customers (our children). To his credit, he complied and asked how he could help. As a result, I not only got relief, but I got to pick the form it arrived in (my husband packing lunches).
Defense counsel are in a far different posture when they ask a judge for relief in DWI cases. Sure, they might get a remedy, but they don’t get to choose its form. Instead, the legislature and the courts have prescribed the relief available for various types of violations of a defendant’s constitutional or statutory rights. Despite the abundance of law on these issues, confusion abounds about the appropriate remedies for the State’s misdeeds, particularly when they occur in an impaired driving case.
So, if you’re looking for relief in the following circumstances, here’s your remedy.
The State failed to inform the defendant of her statutory implied consent rights before conducting a chemical analysis.
The results of the chemical analysis must be suppressed. State v. Shadding, 17 N.C. App. 279 (1973) (reasoning that “[s]uch rights of notification, explicitly given by statute, would be meaningless if the breathalyzer test results could be introduced into evidence despite non-compliance with the statute,” and holding that the State’s failure to offer evidence regarding whether the defendant was advised of his rights under G.S. 20-16.2(a) rendered results of the breath test inadmissible); see also State v. Fuller, 24 N.C. App. 38 (1974) (commenting 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”).
The State denied the defendant the statutory right to have a witness observe the chemical analysis.
If a live witness was turned away or denied access to the defendant after timely arriving and making reasonable efforts to gain access to the defendant, the results of the chemical analysis must be suppressed. See State v. Buckheit, 735 S.E.2d 345 (N.C. App. 2012) (holding that breath test results should have been suppressed when witness arrived less than 30 minutes after defendant was advised of his implied consent rights and made reasonable efforts to gain access to the defendant, but was not admitted to the breath testing room); State v. Hatley, 190 N.C. App. 639 (2008) (same); State v. Myers, 118 N.C. App. 452 (1995) (holding that breath tests results were improperly admitted as the defendant was denied the right to have his wife witness the breath test). There is no requirement that the defendant show he was prejudiced by the lack of a witness.
The State requested that the defendant submit to a chemical analysis sooner than 30 minutes from the time she was notified of her implied consent rights.
This allegation, without more, is insufficient to warrant any relief. A defendant must indicate at the time he or she is requested to submit to a chemical analysis that she desires to contact an attorney or have a witness present; otherwise, she waives the statutory right to delay the test. McDaniel v. DMV, 96 N.C. App. 495 (1989). Moreover, to be entitled to relief for a violation of the right to delay, the defendant must demonstrate that a witness was on the way and would have timely arrived, see State v. Buckner, 34 N.C. App. 447 (1977), or that he would have consulted with an attorney during this additional time, see Rock v. Hiatt, 103 N.C. App. 578 (1991) (distinguishing, in a refusal case, circumstances in which a defendant clearly did not intend to exercise right to contact an attorney or have a witness present from those in which the defendant was awaiting the timely advice of an attorney).
The State violated the defendant’s statutory rights to pretrial release by impermissibly holding him without clear and convincing evidence that his impairment posed a danger. The defendant asked to see his brother, who arrived at the jail within an hour of his arrest, and was not permitted to see him. The defendant was released from jail the next day, having seen no counsel, friends, or family since the time of his arrest, some 8 hours earlier.
The charges must be dismissed. The defendant was denied pre-trial release despite the absence of a basis for an impaired driving hold under G.S. 15A-534.2. This statutory violation resulted in the confinement of the defendant during the crucial period in which friends and family could have observed him to form opinions as to his condition following arrest. See State v. Ham, 105 N.C. App. 658 (1992) (stating that to warrant dismissal, the defendant must prove that he was denied access to witnesses and friends during the crucial period during which exculpatory evidence could have been gathered); State v. Knoll, 322 N.C. 535 (1988) (holding that the violation of a defendant’s statutory right to pretrial release in an impaired driving case that prejudices the defendant requires dismissal). While detained, the defendant was denied access to his brother, who was present at the jail, and who could have been a witness for the defense. Cf. State v. Labinski, 188 N.C. App. 120 (2008) (concluding that substantial violation of the defendant’s right to pretrial release did not establish basis for dismissal since defendant was not denied access to family and friends while in jail).
Suppose the defendant in the example above was lawfully detained because he could not post bond. He asked to see his brother, who arrived at the jail within an hour of his arrest, and was not permitted to see him. He was released from jail the next day, having seen no counsel, friends, or family since the time of his arrest, some 8 hours earlier.
The defendant may be entitled to dismissal of the charges based upon a flagrant violation of his constitutional rights, even though he was not unlawfully detained. G.S. 15A-954(a)(4). G.S. 15A-954(a)(4) codifies the North Carolina Supreme Court’s holding in State v. Hill, 277 N.C. 547 (1971) that the denial of a defendant’s constitutional right to communicate with counsel and friends at a time when the denial deprives him of the opportunity to confront the State’s witnesses with other testimony requires dismissal of the charges. The Hill court held that the defendant’s constitutional rights were violated when his brother-in-law, who also was his attorney, was not allowed to see him after his arrest for impaired driving. The jailer holding the defendant refused to release him after his brother-in-law posted bond and further refused to allow the brother-in-law to see the defendant. From the time the defendant was arrested at 11 p.m. until 7 a.m. the next morning, only law enforcement officers saw or had access to him.
The Hill court recognized that for offenses “of which intoxication is an essential element,” the denial of immediate access to witnesses may deprive “a defendant of his only opportunity to obtain evidence which might prove his innocence.” Because the guilt or innocence of a defendant charged with impaired driving “depends upon whether he was intoxicated at the time of his arrest,” such a defendant “must have access to his counsel, friends, relatives, or some disinterested person within a relatively short time after his arrest” in order to have “witnesses for his defense.” The court held that in the Hill defendant’s case “the right . . . to communicate with counsel and friends implies, at the very least, the right to have them see him, observe and examine him, with reference to his alleged intoxication.” Under these circumstances, the court concluded that “to say that the denial was not prejudicial is to assume that which is incapable of proof.” See also State v. Ferguson, 90 N.C. App. 513 (1988) (applying Hill to circumstances in which defendant’s wife was denied access to the breath testing room and in which the defendant did not see his wife until he was release from jail an hour and a half later).
At the defendant’s initial appearance on DWI charges, the magistrate failed to inform the defendant, who was committed to the sheriff’s custody, of the established procedures for having others appear at the jail to observe his condition or to administer an additional chemical analysis as required by G.S. 20-38.4(a)(4). The magistrate also failed to ask the defendant to complete AOC-CR-271, the Implied Consent Offense Notice form, or to provide the form and jail procedures to the defendant.
Absent additional facts, no relief is warranted. The failure to inform the defendant of the procedures for contacting people from jail is a statutory violation related to the defendant’s pre-trial release. It is unclear whether such a violation is substantial. Even if the magistrate’s dereliction of this statutory duty were deemed a substantial statutory violation, the defendant must demonstrate prejudice resulting from the violation to be entitled to relief. See Knoll, 322 N.C. 535. A defendant who successfully contacts a person from jail or meets with a witness while jailed likely could not demonstrate prejudice resulting from this violation. It also seems unlikely that a defendant who was advised generally at his initial appearance of the right to communicate with counsel and friends and who was granted access to a telephone or witness while jailed could establish the requisite prejudice.
After being charged with DWI and advised of his implied consent rights, the defendant refused to submit to a chemical analysis of his blood. The defendant subsequently was restrained by two officers while a trained phlebotomist withdrew a vial of blood. The arresting officer testified that he did not attempt to obtain a warrant authorizing the withdrawal of the defendant’s blood, though he estimated that the delay associated with obtaining a warrant would have been about 20 minutes. The officer said he instead relied on the exigency exception to the Fourth Amendment.
The defendant likely is entitled to suppression of the blood test results on these facts. The U.S. Supreme court in Missouri v. McNeely, 133 S. Ct. 1552 (2013) (discussed here), established that there is no per se exigency exception to the warrant requirement in impaired driving cases that authorizes the warrantless withdrawal of blood over a defendant’s objection. Instead, courts must look to the totality of the circumstances to determine whether the police can reasonably obtain a warrant without significantly undermining the efficacy of the search. If they can, the Fourth Amendment mandates that they do so. Assuming that a delay of 20 minutes is insufficiently long to undermine the efficacy of the search, cf. State v. Fletcher, 202 N.C. App. 107 (2010) (finding an exigency based on a delay of two to three hours), the warrantless withdrawal of the defendant’s blood in these circumstances violated the Fourth Amendment; thus the exclusionary rule bars the admission of the test results. See G.S. 15A-974 (requiring suppression if exclusion is required by the state or federal Constitution).
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.
The Fourth Circuit decided an interesting case yesterday. The case is United States v. Young, and the interesting part isn’t just the defendant’s nickname, “DJ Nelly Nell.”
The relevant facts are as follows. The defendant was indicted on “various drug and weapons charges,” and a warrant for his arrest was issued. Officers staked out his house, and watched as one of the defendant’s associates knocked on the door and was quickly admitted. The associate left shortly thereafter, and the police “repeatedly” knocked “loudly” on the defendant’s door and identified themselves as police. They received no answer, and after 20 seconds, let themselves in using a key supplied by the defendant’s landlord. The defendant was near the door. The officers arrested him, and in the course of the arrest, saw cocaine in the defendant’s home. The government brought additional charges based on that cocaine, and the defendant moved to suppress.
He argued that “that the agents did not properly knock and announce their presence before entering his townhouse to execute the arrest warrant.” The district court disagreed, and after he was convicted, the defendant appealed. The Fourth Circuit affirmed. It acknowledged that the Fourth Amendment imposes a “requirement that police knock, announce their presence, and wait a reasonable time before entering a house to execute a search or arrest warrant.” However, it noted that police may forcibly enter after they have been refused admittance, and that refusal may be implied — for example, by an occupant’s decision not to answer the door.
The defendant argued that the police should have waited “a minimum of two minutes before entering his house,” but the court disagreed. It stated that “[t]he reasonableness of the delay varies with each case and depends on the totality of the circumstances” — the North Carolina cases also endorse this proposition — but cited a number of cases finding a ten to fifteen second delay sufficient. It also noted that the defendant’s home was small, and that the police had seen him quickly answer the door for his associate.
One interesting point mentioned by the court in Young is that the United States Supreme Court held, in Hudson v. Michigan, 547 U.S. 586 (2006), that violations of the knock-and-announce rule in the execution of search warrants don’t require the suppression of evidence. An arrest warrant wasn’t before the Hudson Court, and the Fourth Circuit noted that the parties in Young disagreed about whether Hudson applies in the arrest warrant context. But it didn’t need to decide that issue in light of its holding that there was no knock-and-announce violation.
Hudson notwithstanding, a North Carolina defendant has another argument for suppression. Our state has codified the knock-and-announce rule by statute. Under G.S. 15A-401(e)(1)(c), an officer executing an arrest warrant must “give[] . . . notice of his authority and purpose” unless doing so would “present a clear danger to human life.” And under G.S. 15A-249 and G.S.15A-251, an officer executing a search warrant must do the same. So a defendant might argue that a knock-and-announce violation requires the application of the statutory exclusionary rule in G.S. 15A-974.
I don’t think that argument works, or at least won’t work very often. An illustrative case is State v. White, 184 N.C. App. 519 (2007), where the state admitted that the police had violated the knock-and-announce rule when executing a search warrant. The court of appeals nonetheless determined that suppression wasn’t required, because the evidence at issue “would have likely been located even in the absence of the forced entry,” i.e., would have been located anyhow during the warrant search. The court reasoned that the evidence wasn’t obtained “as a result of” the improper entry as required by the statutory exclusionary rule. It seems to me that under White, knock-and-announce violations will virtually never result in suppression under G.S. 15A-974. Perhaps a defendant could argue that he was in the process of destroying evidence, and would have succeeded if the police had just waited a little longer before entering. But I have a hard time imagining that argument getting much traction in practice, and absent such an argument, it seems to me that the state will almost always be able to argue that the evidence would have been discovered even absent the violation. Am I missing something? Defense lawyers, if you are getting evidence suppressed for knock-and-announce violations, I’d be interested to hear more about the arguments that are working for you.
The Supreme Court (Washington, not Raleigh) has been exceptionally busy with criminal law matters over the last few months. As readers of this blog know, two of the blockbuster decisions this Term have been Arizona v. Gant, which severely restricted vehicle searches incident to arrest, and Herring v. United States, which held that the exclusionary rule should not apply to evidence obtained as the result of an arrest that was made by an officer with a good faith but mistaken belief that the defendant was the subject of an outstanding arrest warrant.
A number of folks — including me, in this blog post, and my colleague Bob Farb, in his paper on Gant — have asked whether the Herring “good faith” exception to the exclusionary rule can be applied to “save” pre-Gant vehicle searches incident to arrest that were conducted in good faith reliance on what appeared to be settled law allowing such searches.
A federal district court has just addressed that issue. I think it’s the first opinion on point, and the judge answered in the negative. In United States v. Buford, __ F.3d __, 2009 WL 1635780 (M.D. Tenn. June 11, 2009), the defendant was driving when an officer ran his tag, learned he was the subject of an outstanding arrest warrant, and stopped him. After arresting the defendant, the officer searched the passenger compartment of his vehicle and found a handgun. The defendnt was charged federally with illegal possession of the gun.
After Gant came down, the defendant moved to suppress. The government conceded that the case was on all fours with Gant, and that Gant applied retroactively. However, it argued that even though the search violated the Fourth Amendment, the exclusionary rule should not apply, because the arresting officer was acting in good faith based on the law as it stood at the time of the search.
The court noted the “tension” between the fact that Gant applies retroactively and the good faith considerations raised by Herring. Ultimately, however, it ruled that applying the good faith exception in cases like the defendant’s would lead to “perverse” results — particularly, it noted, the defendant in Gant would himself not be entitled to suppression under the government’s reasoning, because the officers in his case, too, acted in good faith based on what appeared to be settled law.
This decision won’t be the last word on this issue. For one thing, the government may file an interlocutory appeal, and for another, other courts may analyze the issue differently. Stay tuned for further developments on this fascinating and consequential point.
Before December 1, 2006, GS 20-16.3A set forth requirements governing impaired driving checkpoints but not other types of checking stations and roadblocks. While non-DWI checking stations and roadblocks had to satisfy the strictures of the state and federal constitution, no specific statutory procedures governed their establishment and use. The Motor Vehicle Driver Protection Act of 2006 (S.L. 2006-253), rewrote G.S. 20-16.3A to govern all motor vehicle checking stations, and to require, among other things, that checkpoints be conducted pursuant to a written policy that provides guidelines for the pattern pursuant to which vehicles are stopped. It seems likely that questions will arise regarding whether a court may or must suppress evidence obtained from a checkpoint that is not conducted in compliance with statutory requirements.
The answer with respect to at least one statutory requirement is no. G.S. 20-16.3A(d) requires that the placement of checkpoints be random or statistically indicated and that agencies avoid placing checkpoints repeatedly in the same area. Subsection (d) specifies, however, that a violation of “[t]his subsection shall not be grounds for a motion to suppress or a defense to any offense arising out of the operation of the checking station.”
No such statutory direction is provided with respect to the other requirements. Cases decided under previous iterations of G.S. 20-16.3A may, however, provide some guidance. In State v. Barnes, 123 N.C. App. 144 (1996), the court considered whether stopping and detaining the defendant at a checkpoint established by the state highway patrol to “detect driver’s license and registration violations as well as other motor vehicle violations including driving while impaired” was constitutional. The trial court had concluded that the checkpoint failed to meet guidelines established by G.S. 20-16.3A and a directive of the state highway patrol and thus was an unreasonable seizure under the Fourth Amendment. The court of appeals reversed, determining that the trial court’s findings showed “substantial compliance” with G.S. 20-16.3A and the patrol’s directive, and thus no Fourth Amendment violation.
In State v. Colbert, 146 N.C. App. 506 (2001), the court of appeals likewise reversed the trial court’s granting of the defendant’s motion to suppress evidence obtained as a result of an impaired driving checkpoint stop upon findingthe checkpoint plan constitutionally permissible and in compliance with G.S. 20-16.3A.
Thus, in both Barnes and Colbert, for checkpoints governed by G.S. 20-16.3A, consideration of whether the requirements of G.S. 20-16.3A were followed was central to the court’s analysis of the constitutionality of the checkpoint and the propriety of suppression of the evidence.
In State v. Tarlton, 146 N.C. App. 417 (2001), the defendant appealed from the trial court’s denial of his motion to suppress evidence obtained as a result of a license checkpoint stop, arguing in part that the state failed to prove the constitutionality of the checkpoint because the written policy by which the checkpoint was conducted was not admitted into evidence. The court of appeals affirmed the trial court, holding that a written plan was not a constitutional requirement, and that the license check was not governed by former G.S. 20-16.3A (1999), which, as previously noted, applied only to impaired driving checks. It is unclear whether a court would reach the same conclusion for a checkpoint governed by current G.S. 20-16.3A for which there was no written policy.
While a court conceivably could construe noncompliance with G.S. 20-16.3A as rendering a checkpoint unconstitutional under the theory that the statutorily required procedures act as a substitute for the Fourth Amendment reasonableness inquiry, such a theory is unsupported by any state law precedent, and seems unlike to be adopted. Other courts have concluded that checkpoint policies themselves serve such a purpose. See, e.g., State v. McDermott, 1999 WL 1847364 (Del. Ct. Comm. Pleas April 30, 1999) (concluding that the Delaware State Police Policy was created to ensure compliance with the reasonableness requirement of the Fourth Amendment) (unpublished op.); see also Commonwealth v. Anderson, 547 N.E.2d 1134 (Mass. 1989) (noting that “[o]nce the Department of Public Safety and the State police have adopted such standard, written guidelines for the conduct of roadblocks, which have been accepted as a sufficient substitute for the usual Fourth Amendment ‘reasonableness’ demands, it follows that the Commonwealth must carefully comply with them.”).
It seems more likely that courts confronted with suppression motions based on noncompliance with current GS 20-16.3A will distinguish statutory compliance from constitutionality. And in such cases, there is no explicit statutory authority for ordering suppression based merely upon a statutory, rather than a constitutional, violation. The expanded exclusionary rule codified in G.S. 15A-974(2) requires suppression of evidence for a substantial violation of Chapter 15A, but there is no corresponding statutory exclusionary rule encompassing violations of Chapter 20.
Notwithstanding the lack of explicit statutory authority to suppress, suppression may still be an appropriate remedy for substantial noncompliance with G.S. 20-16.3A. After all, courts have held that suppression of test results is the appropriate remedy for statutory violations related to administration of a chemical analysis under the implied consent laws even though no statute explicitly grants the authority to suppress evidence for such a violation. See, e.g., State v. Hatley, 661 S.E.2d 43 (2008); State v. Myers, 118 N.C. App. 452 (1995). A court could, in my view, reasonably conclude that suppression likewise is the appropriate remedy for statutory violations related to checkpoints, except, of course, for violations of the type for which the legislature has stated that suppression is not an appropriate remedy.
The Supreme Court’s latest criminal law decision is Kansas v. Ventris, available here. The basic holding is that a statement obtained in violation of a defendant’s Sixth Amendment right to counsel may be admitted for impeachment purposes, so long as the statement was voluntary.
In brief, the defendant in Ventris was charged with murder and other offenses, and the police had a jailhouse informant ask him about the crimes. The defendant confessed, but because the informant deliberately elicited information, rather than serving as a mere listening post, the defendant’s statements were obtained in violation of the Sixth Amendment, and the state did not introduce them in its case in chief. The defendant took the stand and testified that someone else committed the crimes, at which point, the state was allowed to introduce the defendant’s statements for impeachment. Interestingly, the defendant was actually acquitted of the murder, but was convicted of other charges. Showing what some might see as a certain chutzpah, he appealed the lesser convictions, arguing that the state should not have been able to impeach him with his statements to the informant.
The Kansas Supreme Court agreed, but the United States Supreme Court reversed. The majority concluded that barring the use of such statements for impeachment would not add much deterrent value to the sanction of excluding such statements from the prosecution’s case in chief, and any incremental increase in deterrence was outweighed by the “need to prevent perjury and to assure the integrity of the trial process.”
The Court had previously ruled that statements obtained in violation of Miranda may be used for impeachment. Harris v. New York, 401 U.S. 222 (1971). And the Court foreshadowed the Ventris holding in Michigan v. Harvey, 494 U.S. 344 (1990), which itself allowed a statement obtained in violation of the Sixth Amendment to be used for impeachment — though in that case, Miranda warnings were given after the police wrongly initiated interrogation and the defendant explicitly waived counsel. In light of Harris and Harvey, the Ventris decision is not surprising, but it settles an open question, one that had become more important in light of the Court’s recent expansion of Sixth Amendment rights in Rothgery v. Gillespie County, 554 U.S. __ (2008) (holding that a defendant’s Sixth Amendment rights attach at his initial appearance before a magistrate rather than at his first appearance before a judge). With the Sixth Amendment right to counsel attaching earlier under Rothgery, there will likely be more situations in which violations of that right are alleged, and thus more situations in which courts will need to consider the use of statements obtained in violation of that right. Ventris, in that respect, is timely.
