All in Good Faith: N.C. Law and the Good Faith Exception Legal Question of the Week Vol. 4, Number 6 March 25, 2011

Transcription

1 All in Good Faith: N.C. Law and the Good Faith Exception Legal Question of the Week Vol. 4, Number 6 March 25, 2011 Brian Beasley Man of Faith and Legal Adviser, HPPD The halls have been all abuzz with chatter this week which I m sure is the result both of the coming of spring and a new bill recently signed into law by the N.C. General Assembly and Governor Perdue. Newly ratified House Bill 3 is entitled An Act To Provide For The Adoption Of The Good Faith Exception To The Exclusionary Rule Into State Law. Now, that sounds like a good thing, and it is certainly a step in the right direction, but as you ll see in this update, it may have less of an impact than you might think. Let s start with a true story. On April 18, 1986, a convicted murderer named Robert Lee Carter was working at Branson s Sawmill on work release from the Orange County Prison Unit. 1 At approximately 4:15 p.m. Mr. Carter was seen walking into the woods with a shovel and a roll of toilet paper, which was not seen as unusual since the workmen would relieve themselves in the woods. However, Mr. Carter entered the home of a 78-year old victim whom he forced to go with him to a nearby field where he brutally beat and raped her before leaving her unconscious. After Mr. Carter failed to report to the van at 4:30 p.m. as required, a search ensued. Searchers found him at 6:15 p.m. approximately 33 yards from where the victim would later be found. The victim was able to describe her assailant and her description roughly matched Mr. Carter. Even more convincing was the discovery of the victim s eyeglasses under a hat belonging to Carter in a trailer where he was taken after being found. Carter was arrested and charged for the crimes. Three days later, an SBI agent made application for a non-testimonial identification order requesting a blood sample from Carter for use in analyzing blood evidence recovered from the scene. He would later testify over defense counsel s objection at Carter s trial that a blood smear discovered on the defendant s underwear the day of the crime was consistent with the victim s blood type and was definitely not the defendant s blood type. The problem with the non-testimonial order was that Carter was 1 Yes, you read this right a convicted murderer on work release. This was before the advent of structured sentencing put an end to parole. If Mr. Carter were convicted of First Degree Murder today, he would either be sentenced to death or to a life sentence without the possibility of parole. So that s some progress I think.

2 in custody at the time and previous North Carolina case law had made clear that a search warrant instead of a non-testimonial order must be obtained when the suspect is in custody. 2 So the blood sample was obtained in violation of the Fourth Amendment. As everyone who has ever watched a legal drama on television knows, 3 evidence obtained in violation of a defendant s Fourth Amendment rights is generally excluded from being used as evidence in his or her trial. What you may not know is that this exclusionary rule does not appear in the Constitution, but was made up by the Supreme Court as a way to ensure that the Fourth Amendment was followed. The exclusionary rule is designed to deter police misconduct because police will be less likely to violate a person s Fourth Amendment rights if they know the evidence they obtain will be inadmissible in court. 4 In addition to this federal constitutional exclusionary rule, North Carolina also has a statutory exclusionary rule 5 that excludes evidence that is obtained as a result of a substantial violation of Chapter 15A of the General Statutes. Chapter 15A sets out, among other things, the laws regarding arrest and search procedures under state law. Just like most legal rules, over time several exceptions were carved out of the exclusionary rule on the federal level. One of these is the good faith exception. The good faith 6 exception in a nutshell means that if an officer searches with a search warrant that a court later rules to be invalid, the evidence seized is still admissible if a reasonably well-trained officer would not have known the warrant was invalid. After all, the court reasoned, the exclusionary rule isn t going to have any deterrent effect in situations where the officer objectively believes he or she is complying with the Fourth Amendment. 2 By the way, this is still the law today. If your suspect is in custody, you may not get evidence by means of a non-testimonial identification order. You are required to get a search warrant. You also, because of Carter s case, must get a search warrant to take a blood sample from an adult (without consent or exigent circumstances) whether the adult is in custody or out of custody. There s much more I could say about this, but that will have to wait for a later legal update. 3 I have steadfastly refused to watch any of the CSI shows since they debuted because I knew as a prosecutor that the writers of those shows were poisoning my potential jurors minds to believe that for every case, there was scientific evidence that would prove the defendant s guilt and therefore (the logic goes) if I didn t present such evidence at trial, the defendant must not be guilty. (I haven t watched NCIS because the letters were so similar, I assumed it was the same type of show although I understand that I may have been wrong about that.) On the other hand, I must admit that the Law and Order series played a big role in my decisions both to go to law school and to become a prosecutor. 4 Not only is the evidence directly obtained inadmissible, but any evidence that is obtained as a result of the discovery of the evidence obtained in violation is also excluded. This type of evidence is called fruit of the poisonous tree under the idea that if the tree itself is poisonous, any fruit it produces is also poisonous. This phrase first appeared in a 1939 U.S. Supreme Court case (Nardone v. U.S., 308 U.S. 339.) I wonder if Justice Frankfurter (yes his real name) knew he was coining a phrase that would live on for the next century or so. 5 G.S. 15A-974. Much more on this later. 6 Good faith in Latin is bona fides, which is sometimes used in contemporary English as a synonym for credentials. Thus, show me your bona fides means show me who you are so that I can trust your good faith in this matter. The U.S. Supreme Court case which created the good faith exception is U.S. v. Leon, 468 U.S. 897 (1984.)

3 All of which brings us back to the Carter case. At his trial, the judge ruled that although the blood sample was obtained in violation of Carter s Fourth Amendment rights, the subsequent test results were admissible because the SBI agent had acted in good faith in obtaining the order. Carter was convicted and appealed. The question before the N.C. Supreme Court was whether there existed a good faith exception to the exclusionary rule under the North Carolina Constitution. You see, a state constitution can grant more individual protection from government intrusion than the Federal Constitution, but it cannot grant less. For example, the U.S. Supreme Court decided two years ago in Arizona v. Gant that the Fourth Amendment does not permit the automatic search of a vehicle upon the arrest of an occupant. A North Carolina court could not interpret the North Carolina Constitution to allow such an automatic search because it would be granting lesser rights than those guaranteed by the Federal Constitution. On the other hand, if a North Carolina Supreme Court decision interpreted our State Constitution to require police to execute search warrants only between noon and five in the afternoon; that decision would not be overturned by the U.S. Supreme Court simply because the Federal Constitution doesn t require that limitation. In the Carter case, 7 the N.C. Supreme Court expressed concern that a good faith exception would whittle away the protections of the exclusionary rule to almost nothing. The court stated that in addition to deterring police misconduct, the exclusionary rule also prevented the integrity of the judicial system from being diminished through the use of evidence tainted by unconstitutional conduct. Further (and significantly in light of the newly passed bill), the court pointed to North Carolina s statutory exclusionary rule as evidence of the state s expressed public policy to exclude evidence obtained through unreasonable searches and seizures. The net result was that the blood results in the Carter case should not have been admitted and Carter was granted a new trial. 8 Although criticized somewhat in later cases, the Carter decision regarding the good faith exception remains the law in this state. And contrary to what you may hear regarding the legislation recently passed by the General Assembly, there is still no good faith exception to the exclusionary rule for the most part in North Carolina. House Bill 3, which was signed into law on March 18 th, does two things: (1) respectfully requests the N.C. Supreme Court to overturn the Carter decision, 9 and (2) modifies the statutory exclusionary rule (G.S. 15A-974). 10 In section (a)(2), which deals 7 State v. Carter, 322 N.C. 709 (1988). 8 More on this later don t give up hope just yet. 9 This request carries no legal weight because of the separation of powers between the legislative and judicial branches, as anyone who has seen those old Schoolhouse Rock episodes knows. 10 I ve included the text of this bill as an appendix. I am hopeful that this appendix will be much more useful than your own appendix located near your large intestine, which as far as I know, serves little to no purpose. According to Newsweek, there is a fairly recent study that claims the appendix fights disease by providing a haven for good bacteria. Unfortunately, the study was done by Dook University, so you know how I feel about that.

4 with suppression of evidence obtained by a substantial violation of Chapter 15A, the following language is added: 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. So the good faith exception might excuse a violation of Chapter 15A when this law goes into effect in all hearings or trials commencing on or after July 1, 2011, the effective date of the new law. After that date, a motion to suppress evidence will be decided by asking four questions: 1. Is the evidence required to be excluded under the U.S. or N.C. Constitution? (If the answer is yes, the evidence will be suppressed. Good faith won t help you here because of the Carter decision.) 2. Was the evidence obtained as a result of a violation of any provision of N.C.G.S. Chapter 15A? 3. If so, was the violation of Chapter 15A substantial? (The court considers the nature of the invasion of personal privacy, the extent of the violation and whether it was deliberate, and whether exclusion will deter future violations.) 4. If so, did the officer act under the objectively reasonable, good faith belief that the actions were lawful? (If so, the evidence can still be admitted.) It will be interesting to see what kind of situation might exist where an officer substantially violates Chapter 15A while acting under an objectively reasonable, good faith belief that he wasn t violating it. I can t come up with a hypothetical where that would be true, which is why I stated earlier that I don t see this bill causing a big change in the legal landscape. The significant change will occur if and when the N.C. Supreme Court decides a case dealing with these issues and agrees to overturn State v. Carter, resulting in a good faith exception under our State Constitution. If and when that happens, I ll let you know. Epilogue I was curious about what happened to Robert Lee Carter after he was awarded a new trial, so I did a public search on the North Carolina Department of Correction website. As I pointed out earlier, when Carter committed these crimes, he was serving a sentence for murder already. It appears that after the Supreme Court reversed these convictions, he entered guilty pleas to reduced charges of Second Degree Rape, Second Degree Kidnapping and misdemeanor assault and was sentenced to forty years. Remember that although the results of the blood comparison were suppressed, there was

5 plenty of other convincing evidence that could still be used if Carter had decided to go to trial again. According to the DOC website, Mr. Carter died in prison on December 21, Brian T. Beasley Police Attorney High Point Police Department APPENDIX SESSION LAW HOUSE BILL 3 AN ACT TO PROVIDE FOR THE ADOPTION OF THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE INTO STATE LAW. The General Assembly of North Carolina enacts: SECTION 1. G.S. 15A-974 reads as rewritten: " 15A-974. Exclusion or suppression of unlawfully obtained evidence. (a) Upon timely motion, evidence must be suppressed if: (1) Its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina; or (2) It is obtained as a result of a substantial violation of the provisions of this Chapter. In determining whether a violation is substantial, the court must consider all the circumstances, including: a. The importance of the particular interest violated; b. The extent of the deviation from lawful conduct; c. The extent to which the violation was willful; d. The extent to which exclusion will tend to deter future violations of this Chapter. 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. (b) The court, in making a determination whether or not evidence shall be suppressed under this section, shall make findings of fact and conclusions of law which shall be included in the record, pursuant to G.S. 15A-977(f)." SECTION 2. The General Assembly respectfully requests that the North Carolina Supreme Court reconsider, and overrule, its holding in State v. Carter that the good faith exception to the exclusionary rule which exists under federal law does not apply under North Carolina State law. SECTION 3. This act is effective when it becomes law and applies to all hearings or trials commencing on or after July 1, In the General Assembly read three times and ratified this the 8 th day of March, s/ Walter H. Dalton s/ Thom Tillis s/ Beverly E. Perdue President of the Senate Speaker of the House of Representatives Governor Approved 3:07 p.m. this 18 th day of March, 2011