State v. Carter

• Decision Date: 28 July 1988
• Docket Number: No. 40A87,40A87
• Citation: 322 N.C. 709,370 S.E.2d 553
• Court: North Carolina Supreme Court
• Parties: , 57 USLW 2131 STATE of North Carolina v. Robert Lee CARTER.

Page 553

370 S.E.2d 553

322 N.C. 709, 57 USLW 2131

STATE of North Carolina v. Robert Lee CARTER.

No. 40A87.

Supreme Court of North Carolina.

July 28, 1988.

Lacy H. Thornburg, Atty. Gen. by Daniel C. Oakley, Sp. Deputy Atty. Gen. and John H. Watters, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Louis D. Bilionis, Asst. Appellate Defender, Raleigh, for defendant.

MARTIN, Justice.

This case presents us with the question of whether there is a good faith exception under article I, section 20 of the North Carolina Constitution to the exclusion of evidence obtained by unreasonable search and seizure. We hold that there is no good faith exception to the requirements of article I, section 20 as applied to the facts of this case and, accordingly, we grant defendant a new trial because evidence that should have been excluded under our state constitution was admitted in the trial of his case.

Defendant was convicted of rape in the first degree, kidnapping in the first degree, and assault inflicting serious bodily injury on the seventy-eight-year-old victim.

Defendant contends on appeal that (1) taking a sample of his blood without a search warrant violated his rights under the federal and state constitutions, and (2) the record is inadequate to permit a conclusion that scientific testimony on blood types based upon the technique called electrophoresis is sufficiently reliable to permit its acceptance in a court of law. Because we hold that article I, section 20 of the North Carolina Constitution requires the exclusion of the scientific evidence derived from the blood sample, we do not find it necessary to reach other issues presented in this case. Nor do we find it necessary to review in detail all of the evidence presented at trial.

The state's evidence at trial showed that on 18 April 1986 defendant entered the home of the victim and forced her to go with him through her backyard and through a plowed field. He then raped her, severely beat her face, and left her unconscious. Defendant, a prisoner at the Orange County Prison Unit, had been working that day at Branson's sawmill, where he had a work-release job. At approximately 4:15 p.m. defendant was seen walking into the woods with a shovel and a roll of toilet paper, it being the practice of the workmen to relieve themselves in the woods. He did not report to the van at 4:30 p.m. to be taken back to the prison unit as was expected of him. He was found by searchers at approximately 6:15 p.m., some thirty-three yards from where the victim was found unconscious at 11:00 p.m. Defendant smelled of alcohol and was dirty and disheveled. He was taken to a trailer on the sawmill grounds. The following day the victim's eyeglasses were found under defendant's hat in the trailer. A shovel and paper had been found near the unconscious body of the victim.

The victim's eyesight is considerably impaired, but she was able to describe her assailant as wearing a yellow shirt, a brown apron, work pants, and work shoes. This accords with the description of defendant's dress on the date in question given by witnesses with normal vision. The victim testified that her assailant covered his face but appeared to her to be wearing a red wig and to have a red complexion. Defendant was called "Red" by his co-workers at the mill.

On 21 April, State Bureau of Investigation agent William Weis made application for a nontestimonial identification order requesting, inter alia, that a blood sample be taken from defendant. The order was issued and blood was taken from defendant at North Carolina Memorial Hospital. Defendant made a pretrial motion to suppress any evidence obtained pursuant to the order because the resulting search violated the federal and state constitutions and constituted a substantial violation of chapter 15A of the North Carolina General Statutes . Defendant relied upon the holding in State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986), that drawing blood from an in-custody defendant without first obtaining a search warrant violated his fourth and fourteenth amendment rights under the Federal Constitution. See also State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977). However, in Welch this Court also recognized a good faith exception to the federal constitutional requirement that evidence illegally obtained not be admitted where an officer relied on a nontestimonial identification order to take blood from a defendant in custody. The trial court denied defendant's motion to suppress, ruling that "Officer Weis had acted in good-faith in obtaining the order...."

At trial, SBI serologist Mark S. Nelson testified, over defendant's objection, that a blood smear on underwear seized from defendant after he was returned to the Orange County Prison Unit on 18 April 1986 was consistent with the victim's blood type but definitely was not defendant's blood type. Defendant's blood type had been determined through analysis of the blood sample obtained on the authority of the contested nontestimonial identification order.

It is settled law in this jurisdiction that a nontestimonial identification order may not properly issue for identification procedures to be performed upon an in-custody suspect. We held in Irick, 291 N.C. at 490, 231 S.E.2d at 840, that "Article 14 of Chapter 15A applies only to suspects and accused persons before arrest, and persons formally charged and arrested, who have been released from custody pending trial. The statute does not apply to an in custody accused." In Welch, this Court again held that the statute is not applicable for the issuing of a nontestimonial identification order when the suspect or accused is in custody. Similarly, article 14 of chapter 15A did not apply to the taking of the blood sample from defendant, who was in custody in the Orange County Prison Unit. Therefore, the question for resolution is whether the obtaining of the evidence from defendant violated his rights under our state constitution. Defendant argues that his rights under article I, section 20 of the North Carolina Constitution have been violated by the taking of the blood sample and the subsequent introduction at trial of evidence obtained from the sample. Because we decide this case on adequate and independent state constitutional grounds, we do not reach or decide the question of whether the challenged search violated defendant's fourth and fourteenth amendment rights under the Federal Constitution. The federal cases cited or discussed are being used only for the purpose of guidance and they do not compel the result that this Court has reached. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Jackson v. Housing Authority, 321 N.C. 584, 364 S.E.2d 416 (1988).

Our state constitution, like the Federal Constitution, requires the exclusion of evidence obtained by unreasonable search and seizure. State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied, 404 U.S. 840, 92 S.Ct. 130, 30 L.Ed.2d 74 (1971); State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968), cert. denied, 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed.2d 780 (1969). In language somewhat different from that of the fourth amendment to the United States Constitution, article I, section 20 of the North Carolina Constitution forbids unreasonble search and seizure:

General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.

Even were the two provisions identical, we have the authority to construe our own constitution differently from the construction by the United States Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201; State v. Arrington, 311 N.C. 633, 642, 319 S.E.2d 254, 260 (1984).

Until 1914 neither state nor federal search and seizure law knew an exclusionary rule, with the sole exception of the state of Iowa. In that year the United States Supreme Court barred from the federal courts the use of evidence obtained by federal officers in an illegal search. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). In Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), the Court held that the fourth amendment is enforceable against the states through the due process clause of the fourteenth amendment, but declined to extend the exclusionary rule to the states. Wolf left the states free to experiment with various methods of protecting their citizens' fourth amendment rights. With the exception of the state of Iowa, which held illegally obtained evidence to be inadmissible into its courts as violative of its state constitution in 1903, State v. Sheridan, 121 Iowa 164, 96 N.W. 730, ¹ no state supreme court anticipated Weeks by holding that its state constitution gave rise to an exclusionary rule. The states followed the common law rule that the admissibility of evidence was not affected by the means used to obtain it. In the landmark case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the United States Supreme Court held that the fourth amendment forbids the admission of illegally obtained evidence in state courts. Although the states did not anticipate Weeks, roughly half of them, including North Carolina, did not wait for Mapp but adopted an exclusionary rule under state law before that decision required that state courts exclude illegally obtained evidence under the Federal Constitution. ² North Carolina repudiated the traditional common law principle in 1937 when the General Assembly enacted a statutory exclusionary rule, N.C.G.S. § 15-27. Thus the exclusionary rule was...