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    • YET ANOTHER ASSAULT ON OUR RIGHTS July 6, 2016
      While the Republican majority in the North Carolina Legislature might be composed of Tea Party bigots appealing to their Neanderthal base, they’re not completely stupid.  They know how to whip the ignorant mob (who would actually benefit from progressive policies) into an indignant frenzy – all the while keeping that mob poor, ignorant and self-destructive.  […]
    • HB2: WHAT A DISGRACE. March 29, 2016
      REPUBLICANS: YOUR MASTERS ARE NOT HAPPY WITH YOU BUT PHIL ROBERTSON LOVES YOU. In case you missed it, my fellow freedom-fighters, last Wednesday, the Tea Party leadership in the North Carolina Legislature called a special session of the General Assembly at a cost of about $42,000.00 of North Carolina tax-payer money.  What crisis, you may […]
    • Moral Monday Round Two February 27, 2016
      This week I was privileged to represent two defendants from the most recent Moral Monday arrests at the North Carolina General Assembly’s Rotunda (North Carolina’s Forum ,if you will) .  These two cases were the first cases that the State of North Carolina called for trial stemming from the 2015 Moral Monday demonstrations against the […]
    • NON-STATUTORY AGGRAVATING FACTORS AND DOUBLE JEOPARDY February 15, 2016
      (THANKS TO THE LATE ANTONIN SCALIA FOR ACTUALLY PENNING SOME DECISIONS THAT WERE CORRECT.  R.I.P., I GUESS.) The following is based on actual events. Any resemblance to real persons, living or dead, is purely coincidental (How do these two disclaimers live with each other?) As we all know, there is no such thing as a […]
    • BLOOD TESTS January 26, 2016
      ADMISSIBILITY GOVERNING CHEMICAL ANALYSES; ADMISSIBILITY; EVIDENTIARY PROVISIONS; CONTROLLED DRINKING PROGRAMS A 1. 20-139.1(c1) ADMISSIBILITY A. NOTICE AND DEMAND. 1. WHEN THE STATE WANTS THE EVIDENCE INTRODUCED. NCGS 20-139.1(c1) is the notice and demand requirement that exists for the purpose of curing the confrontation clause problem facing the State whe […]
    • CHECKPOINTS ARE TERRIBLE. January 22, 2016
      IF YOU’RE A CRIMINAL DEFENSE LAWYER AND YOU’RE NOT CHALLENGING CHECKPOINTS, YOU’RE NOT A CRIMINAL DEFENSE LAWYER. 1. INTRODUCTION Challenging checkpoints requires, initially, a two-prong analysis: first, the checkpoint’s constitutionality on its face; and, second, its constitutionality as applied. The mistake that many defense lawyers make is looking at the […]
    • SOME THINGS ARE WORTH REPEATING January 12, 2016
      NON-STATUTORY AGGRAVATING FACTORS There is no such thing as a non-statutory aggravating factor. I repeat: There is no such thing as a non-statutory aggravating factor. All together now: There is no such thing as a non-statutory aggravating factor. NCGS 20-179(d)(9): “Any other factor that aggravates the seriousness of the crime.” This is the catch-all under […]
    • HAPPY NEW (RELIGION-FREE)YEAR January 3, 2016
      My hopes for 2016, my loyal followers, are for a year in which secularism replaces sectarianism, sanity replaces stupidity, reason replaces religion. 2015 has been a fascinating year.  It has highlighted the blight on our country of senseless gun-violence.  While people are being killed daily by guns that are not for hunting and exist for […]
    • Congratulate Me On My New Website December 29, 2015
      http://www.theraleighcriminallawyer.com.  and while you’re at it, visit my DWI website, http://www.TheRaleighDWILawyer.com.
    • I HAVE TWO REVIEWS; THEY’RE BOTH BAD November 11, 2015
      Those pesky reviews. As the lawyer with the highest number of pending DWI cases in Wake County, North Carolina, I marvel at the fact that I have only two reviews.  How, I wonder to myself, do all these other lawyers have so many reviews?  Why, I ponder, do I seem to attract clients who don’t […]

HAPPY NEW (RELIGION-FREE)YEAR

My hopes for 2016, my loyal followers, are for a year in which secularism replaces sectarianism, sanity replaces stupidity, reason replaces religion.

2015 has been a fascinating year.  It has highlighted the blight on our country of senseless gun-violence.  While people are being killed daily by guns that are not for hunting and exist for the sole purpose of killing people, the National Rifle Association – an organization that once advocated for sensible gun-control – uses its huge lobbying power to prevent any meaningful discussion on gun-control.  “Obama’s coming for your guns!” they’ve been bleating for the past seven years.  I wish he would.

2015 has finally put the magnifying glass on the terrifying truth in our country that the police are out of control and, in most cases, will not be prosecuted for the murders they commit.  And the hateful backlash against such movements as The Black Lives Matter movement has revealed the depth and breadth and pure ugliness of the racism that still plagues our country.

Last year’s also ugly reaction to opening the institution of marriage to same-sex couples has led to Republican presidential candidates espousing the absurd notion that governmental employees may refuse to uphold their oath to follow the Constitution on the grounds that doing so would violate their “strongly-held religious beliefs.”  I suppose, then, that since the Christian bible, the Muslim Quran and the Jewish Torah (and who knows what other religious texts)  allow for slavery and infanticide, I may enslave people and kill children because of my “strongly-held religious beliefs.”

2015 has witnessed yet more religious terrorism and all-out religious war  as a result of the Bush/Blair lies following the  September 11, 2001 attacks.  As an atheist, I couldn’t give the proverbial rat’s ass which religion, which sect, which denomination, which cult is “responsible” and which religion is the “victim.”  Muslims, Christians, Jews, Hindus, Buddhists, Olympians, Pagans,  Shi ites, Sunnis, Protestants, Catholics, you name it.  They’re all the same; they’re all to blame.  Religion is to blame.  And religious leaders, and those politicians who go along with them, most of all.  They know that religion is false and nothing but superstition.  And they know that keeping people in the thrall of religion with its glorification of poverty and death keeps the leaders in their positions of power.

It’s time for the world to open its eyes and reject the poison of religion.

As Henry II famously implored: “Will no one rid me of this tempestuous priest”?

And so, I wish you all a Happy New Religion-Free Year.

 

 

 

 

 

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Congratulate Me On My New Website

http://www.theraleighcriminallawyer.com.  and while you’re at it, visit my DWI website, http://www.TheRaleighDWILawyer.com.

I HAVE TWO REVIEWS; THEY’RE BOTH BAD

Those pesky reviews. As the lawyer with the highest number of pending DWI cases in Wake County, North Carolina, I marvel at the fact that I have only two reviews.  How, I wonder to myself, do all these other lawyers have so many reviews?  Why, I ponder, do I seem to attract clients who don’t write reviews and other lawyers seem to attract clients who do write reviews.  Who, I question, are these people writing reviews?  Why (again), I wonder, are all these reviews other lawyers are receiving “good” reviews?  Surely these aren’t fake reviews.  Surely, my fellow members of the profession aren’t encouraging their clients to write reviews.  Surely, negative reviews aren’t mysteriously disappearing.  Surely, there isn’t some sort of nefariousness going on.

For my part, I don’t know or care about the  hows, whys and whos of any reviews about me; I neither encourage nor discourage my clients to write reviews – that would demean both me and my profession: I’m not a hotel. I don’t mention reviews to my clients.  I think reviews are terrible and can’t be trusted.

However, I will address the two negative reviews of me.  The first is from a client who didn’t like the fact that I actually expected to be paid the fee I quoted.  Enough said there.  The second is patently unfair.  This client was facing two years in prison because of prior convictions for DWI; this person also had his or her car seized and I referred the seizure issue out to another lawyer because I don’t handle the seizure issue as it often constitutes a conflict of interest; this person’s complaint concerning the seizure issue is with that lawyer, not me.  This client is correct that in early 2014 I had a revolving door of paralegals; however, that did not affect in any way, the quality of my representation of him or her in securing this person the minimum sentence of probation with a 30 day active component – this case was a total loser, and it was my job to mitigate matters as much as possible, which I did.

This review-writer’s complaint that I advised him or her that we should plead guilty on the first court date is true; and this person agreed that we should do so so as to avoid an aggravating factor that, while it wouldn’t have changed the level of punishment, almost certainly would have resulted in a judge imposing something other than the minimum punishment, which is what I argued successfully to the judge to give this person.  I then advised my client to appeal the sentence to Superior Court to give him or her time to complete a period of in-patient treatment, having explained to this person that every day of in-patient treatment would satisfy a day in jail.  we continued the case out long enough for this person to complete his or her in-patient treatment.  This person enrolled in a 28-day in-patient treatment program, two days short of the 30-day minimum active component of this person’s minimum sentence.  I advised this person that, unless we could find a place where he or she could complete two more days of in-patient treatment, he or she would have to spend two days in jail to satisfy the minimum sentence.  We were unable to find a facility that would accept this person for two days; and when we went back to court to remand the matter back for re-sentencing (with no guarantee that he or she would still receive the minimum and fully understanding that this person would have to spend at least two days in jail), the re-sentencing judge honored the original sentence (which he didn’t have to do), placed this person on probation and ordered this person to spend two days in jail (to satisfy the minimum sentence) on a date to be determined by him or her and his or her probation officer.

Following the re-sentencing, rather than telling my client to sit in the court room and wait for probation (which I normally do), I walked my client to the probation office, where, as the review-writer correctly stated, the intake person said to me: “Hello, we don’t normally see you in here.”   The review-writer complained about this too.

As we find ourselves so often saying in my line of work: No good deed goes unpunished.

Rugby World Cup 2015

My take on the RWC2015 so far.  After my initial disgust over the banning of bagpipes at all of the RWC venues, I decided to adopt the measured and philosophic attitude of the Scottish players.  But I will comment:  I started going to Scottish rugby International rugby matches in the  mid 1970’s, and have been watching rugby games live and on television all my life.  The sound of the bagpipes has always been a part of the Scottish rugby scene just as it is part of the Scottish football scene.  But rugby fans, unlike their football counterparts, are social and friendly; fans are not separated in the stands; the banter – or craic – between fans of the opposing teams is playful and joyous without taking anything away from the passion they feel for their team – especially when talking about their national teams, or, as rugby people say, international teams. And when the unmistakeable sound of the bagpipe’s drone signals the wail or skirl of the chanter, the faces of all the fans light up – the Scots in pride, the opponents in delight.  Its a delight in hearing a sound so identified with Scotland.  It’s the same delight I feel when the Welsh fans sing.

And the stated reason for the no-bagpipes edict: something about “compromising the spectators’ enjoyment.”  I’ll end my comment on that subject and move onto the RWC itself.

This World Cup has gotten off to a cracking start. Undoubtedly the biggest story of the opening salvo of matches was Japan’s stunning victory over two-time World Cup Champions South Africa (34 – 32). This was no fluke either; Japan played clinical, brave and inspired rugby; South Africa looked disorganized. The biggest game so far has been England v. Wales in what has to be this RWC’s group of death (Australia, Fiji and Uruguay fill out this group – only the top two go through). Wales won 28 – 25 at Twickenham – Twickenham is to English rugby what Wembley is to English football. A huge victory for Wales; a devastating blow to England. The USA were disappointing in the their opener to Samoa losing 25 – 16. They then lost to Scotland 39 – 16, having led 13 – 6 at the half.  Scotland, who also beat Japan 45 – 10 now sit top of that table, and face South Africa, who manhandled Samoa 46 – 6, next.  The best game so far has been Italy v. Canada; Canada lost 23 – 18 in a game in which Canada led in every statistic as well as playing the more aggressive, open, attractive rugby, and deserved to win.  Georgia’s defeat of Tonga was a fantastic game.  The All Blacks’ 26 -16 victory over Argentina was no surprise, but Argentina’s continued rise in world rugby can’t be ignored; their dismantling of Georgia, 54 – 9, is testament to that. The disparity in world rugby is shrinking, and that’s a very good thing.

New Zealand are clearly the favourite to win the World Cup.  They are the best rugby team in the world. They’ve already played their toughest game – Argentina – in their pool and beaten Namibia 54 – 14.  Georgia and Tonga are next.  New Zealand will win Pool C and face Pool D’s runner up – my guess  is that Ireland will win Group D and France will be the runner up. I see the All Blacks in the final versus either Australia or Ireland. I hope I’m wrong.  But if I’m right I hope Ireland win.  But I don’t expect that to happen either. If Scotland can’t win, then I want Argentina, then the USA, then I start getting realistic but still with a certain bias.

The stadium-selection for this RWC is perfect. In addition to the rugby mega-stadiums of Twickenham  and Millenium Stadium in Cardiff, Wembley is the venue for a number of games  (more than 89,000 showed up for the Ireland v Romania match!).  And smaller, more intimate stadiums have been chosen to maximize atmosphere, such as Kingsholm in rugby-mad Gloucester; Sandy Park, the home to possibly the English Premiership’s most exciting team the Exeter Chiefs; and some football parks: Elland Road, Leeds’ storied football stadium; St. James’s Park; Villa Park; as well as other less well-known but fun and interesting venues all over England.  The crowds have been fantastic at every game with massive traveling fans (most of my friends are there right now) and local English fans backing the underdogs and cheering them on with renditions of “Swing Low Sweet Chariot.”

The National Anthems, sung by (or “supported by,” as the PA announcers say) choirs local to the area, are wonderful.

As for up-coming pool games: for entertainment, I’d keep an eye out on Tonga v. Namibia, Canada v. Romania, Namibia v. Georgia, USA v. Japan, Samoa v. Japan; for big games: Scotland v. South Africa, England v. Australia, Wales v. Australia, France v. Ireland. If I don’t mention Samoa v. Scotland, then I jinx Scotland. If Scotland play as they did in their warm-up games, they should beat Samoa; if they play as they did in the first half of the USA game, they’ll lose.

If you were expecting a blog-post about the law, bad luck. Go read five statutes and some case law. Rugby is my passion.

THE “THAT LAWYER HAS TOO MANY CLIENTS” LIE

(Bida Manda is the best restaurant in Raleigh)

Before coming to the infinitely sensible decision to hire me to represent you on your criminal case and while you’re “shopping around” for a lawyer, you may encounter lawyers who will tell you that such and such lawyer is too busy and has too many clients. This is utter shit.  It’s a lie,  It’s a ploy by a lawyer who doesn’t have enough clients to convince you to hire him on the theory that so and so won’t give your case the attention that he will.  You then, on this desperate lawyer’s advice, call those lawyers with “too many clients” to find out how many open cases they have, how many cases have they opened this year, how many pending DWI’s they have, that sort of thing.  The irony is, you should ask those questions but not for the scare-tactics reasons given to you by the lawyer with no clients. but to help you whittle down your search to those lawyers with the biggest caseloads.

You want the busiest lawyer in town representing you.  You don’t want the guy who doesn’t have enough clients.  You want to eat at Bida Manda.  You don’t want to eat at Batistella’s.

Bida Manda is the best restaurant in downtown Raleigh (and probably the best in all of Raleigh). And it’s a Laotian restaurant . As in from Laos.  Bida Manda is so busy you have to make reservations for lunch.  Bida Manda serves food late and is packed all night long. Their cocktails are fantastic. Their service is top notch.  And did I mention the food?  SMH-ingly fantastic.l.  Go often and order everything at least once. Their signature dish, to me, is the Porkbelly Soup; it is absolutely incredible.  If you go only once, get the Porkbelly Soup. It’s all great.  Every time.

Oh dear.  Batistella’s on the other hand, fifty yards up the road, is, and I say this unapologetically, the worst restaurant in downtown Raleigh (but probably not the worst in all of Raleigh – so there’s something).  Batistella’s is a New Orleans-themed restaurant in a perfect corner location.  The interior is great, a kind of open kitchen.  Cool place. And absolute shit.  Gordon Ramsay needs to do an episode of  Kitchen Nightmares there. If they’re not ignoring you for an hour because you have three children, on a different occasion they’re telling four hungry lawyers that they close at two for lunch and you’re too late. And it’s one o’clock.  If they’re not telling you they’re out of diet coke, they’re telling you they’re out of ketchup for your fries. What a shame.  When it first opened, it had tons of promise, and their Gumbo was good. . But it seems that someone has given up.  It’s a terrible restaurant, And has a fraction of the customers their neighbour Bida Manda, has.

So which one do you choose?

Of course you’re going to choose Bida Manda.  You need to choose your lawyer among the Bida Mandas of what we do, and not the Batistella’s.  Youre not going to get a better dish at Batistella’s because they make fewer dishes than you are at Bida Manda because they make more.

Consider this too:  A lawyer with a heavy caseload can more easily pick and choose where he wants to be; if he sees that your case is in a courtroom with a judge who that lawyer knows is not good for the issues in your case, he can go into any number of other court rooms and deal with his cases in those court rooms; he can avoid the bad situation for you in a way that the lawyer with only one case that day can’t – that lawyer is stuck in the one courtroom he doesn’t want to be in with no excuse for being somewhere else.  Think about that when the pathetic little worm tells you that John McWilliam has too many clients.

800th ANNIVERSARY OF MAGNA CARTA … AND WHO CARES?

On June 15, 1215, at Runnymede, the Earls and Barons of England forced King John to affix his seal to “one of the most important legal documents in the history of democracy,” Magna Carta or the Great Charter. The Right Honourable The Lord Denning, Master of the Rolls from 1962 to 1982, described Magna Carta as the “greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.” Franklin Delano Roosevelt declared in his 1941 Inaugural Address, “The democratic aspiration is no mere recent phase in human history … It was written in Magna Carta.”

Stirring stuff. And complete rubbish. There is nothing remotely approaching democracy or the freedom of the individual in Magna Carta. But I do appreciate Roosevelt’s correct omission of the definite article. Like hoi poloi, Magna Carta is not preceded by “The.” And that’s the only thing Magna Carta and hoi poloi have in common. The masses, the public, the multitude, the rank and file, what we now call the middle class were never meant to be the beneficiaries of the “rights” guaranteed by Magna Carta. The titled, landed gentry were – you know, today’s one percent. Magna Carta is no more a declaration of the common man’s rights than is the whining privately-educated schoolboy’s (like me) complaint that the head prefect has more privileges than the lower prefects. Magna Carta was class-warfare among the elite.

Following all the greetings, a listing of the endless titles held by John, supplications to God and his servants on earth, references to this constable and that seneschal, we have: “To All Free Men Of Our kingdom…” Sounds good (unless you happen to be a woman or not a free man). To be clear, the free men to be protected by Magna Carta were in fact a tiny minority of the English population at the time – titled men who owned property. Magna Carta was designed to do nothing more than codify the feudal system that already protected the rights and property of the small number of powerful families that, through good fortune or violence or both, happened to sit atop the rigid feudal system. Magna Carta didn’t advance democracy; it retarded democracy. It legislated the status quo that kept the vast majority of Englishmen and women enslaved and the powerful in power.

Article 6 of this to-be-much-revered document prohibits heirs of any earl or baron from marrying someone of a lower social standing. But, to be fair, Article 7 is kind enough to allow a widow to remain in her husband’s house for 40 days after his death.

Articles 10 and 11 liberate Jews from the burden of collecting debts from the estates of people who die owing them money.

Article 21 stipulates that earls and barons will be fined only by their peers. Now we know why “peers” has come to mean both one thing and its opposite (like “cleave”): our superiors and our equals – a Peer of the Realm – a jury of his peers.

Articles 38, 39 and 40 are very nice and are the three remnants of Magna Carta that get American lawyers all a-twitter and falling all over themselves in fawning adulation. Article 38 describes the corpus delicti rule; Article 39 deals with due process; Article 40 tells us that justice will not be denied, delayed or sold. All of which, we have the Romans to thank for. And the Romans, for all their faults, at least applied these principles in all cases, not just for those out of society’s top drawer. Just like today!

There are lots of fascinating forest rights to read about in Magna Carta depending on whether you’re reading the original version (you’re not, it doesn’t exist), or Henry III’s 1216 version, or the 1217 version, or the 1225 version, or even Edward I’s 1297 version. In any event, I’m sure the common man of 1215 was much relieved to know that his overlord could still hunt the land on which he lived – unlike yon afore-mentioned common man who would be branded a poacher, forced to admit to his wrong-doing with no “credible witnesses to the truth of it” (Article 38), and be denied the right to due process and a trial, because those rights belong only to his master.

So happy 800th birthday, MC, you’re not that important. I do, however, look forward, in five years’ time, to celebrating the 700th anniversary of an inspired, inspiring and relevant document that truly champions freedom, Jefferson’s inspiration, and the battle-cry of at least one modern country’s desire and destiny of Independence still: The Declaration of Arbroath.

MISTAKES OF FACT, MISTAKES OF LAW AND THE GOOD-FAITH EXCEPTION TO THE EXCLUSIONARY RULE

What a gripping title! This post raises the question of whether evidence obtained as a result cops’ good faith mistakes of fact or law will survive motions to suppress. And the answer is:  It depends; which Constitution are you arguing under?

In the last few months, criminal defense lawyers across the country collectively moaned a moan of moanly pain in light of the abomination known as  Heien v. North  Carolina.  In Heien, the  United Supreme Court decided that the theory of reasonable mistakes of fact by law enforcement not being subject to suppression should be extended to cops’ reasonable mistakes of law.  In other words, while “ignorance of the law” is no excuse for a citizen who unwittingly breaks the law, it is an excuse for a cop – the very person who we would expect to know the law – to justify his unwitting breaking of the law.

It is settled law that, for example, a cop who makes the mistake of fact that a driver is not wearing his seatbelt (but who is in fact wearing his seatbelt) and who pulls that person over will not be deemed to have acted unreasonably if the mistake of fact was reasonable.  And if the officer then develops probable cause to search the car and finds a kilo of cocaine, that subsequent search will be deemed reasonable because it was supported by probable cause to search; and the kilo of cocaine will not be suppressed, or excluded, even though the initial seizure of the defendant was based on a mistake of fact. As long as the mistake of fact was reasonable.  His reasonable, or good faith, belief that the properly-seatbelted driver was not wearing his seatbelt, will not result in the subsequent search – if supported by probable cause to search – and the kilo of cocaine being suppressed or excluded. This is the mistake of fact scenario.

This is the mistake of law scenario.  Until Heien v. North Carolina, it has been settled law that the same rule does not apply to mistakes of law.  Mistakes of law are – or were – presumptively unreasonable.  No good faith exception applied in cases where the policeman made a mistake of law.  For example, evidence obtained from a policeman’s stop of a car that is traveling 55 mph in a 55 mph zone that the cop reasonable believed to be in a 35 mph zone will be suppressed.  The mistake of law – however reasonable – will not survive the motion to suppress.  Until Heien v. North Carolina, that is.  Thanks to Heien, the cop’s ignorance of the law will forgive his unlawful action, and any evidence obtained as a result of that unlawful action will not be suppressed or excluded.

In Heien, the policeman stopped a car because it had only one working brake-light.  In North Carolina, it turns out, a car need have only one working brake-light; however, the policeman believed that the law required all brake-lights to be working.  He pulled the car over – for something that is not a violation of the law – and somehow got Mr. Heien to consent to a search his car; that search yielded cocaine somewhere in the car.  Prior to the Heien decision, the policeman’s ignorance of the law – or mistake of law – would not have served as an excuse for his actions, and the cocaine that was seized would have been suppressed (bad stop; cocaine not coming into evidence).  In Heien, the North Carolina Superior Court Judge inexplicably broke with precedent and denied the Defendant’s motion to suppress (good stop; cocaine coming into evidence).  The Defendant appealed to the Court of Appeals, who, relying on precedent,  reversed the Superior Court Judge’s decision (bad stop; cocaine not coming into evidence).  The State appealed to the North Carolina Supreme Court, who (and this happens a lot in North Carolina – our two appellate courts are in a pissing contest with each other), reversed the Court of Appeals decision (good stop; cocaine coming into evidence).  The Defendant appealed directly to the US Supreme Court, who agreed to hear the case.  The US Supreme Court sided with the Superior Court Judge and the NC Supreme Court, and denied the motion to suppress (good stop; cocaine coming into evidence).

I’m not going to comment on that lone employee of the state choosing to create new law, or the politics behind North Carolina’s Supreme Court decision, or the motivations behind the US Supreme Court’s decision. I’m pretty sure I’ve already done that in a prior post. This post deals with the question of whether, even in light of Heien, evidence obtained as a result of a cop’s good faith mistake of law or fact can be suppressed.

In North Carolina, evidence obtained unlawfully but in good faith – whether a mistake of fact or law – .can, and in fact, should be suppressed pursuant to State v. Carter, a 1988 North Carolina Supreme Court case. This case is the landmark case that declares there to be no good faith exception under Article 1, Section 20 of the North Carolina Constitution to the exclusion of evidence obtained by unreasonable search or seizure. I blogged several years ago about the legislature’s attempt to influence the Supreme Court into overturning State v. Carter when it re-wrote NCGS 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.”).  According to Carter, whether the reasonable or good faith mistake is one of fact or law, it makes no difference as to the suppression issue; the evidence will be suppressed because the North Carolina Constitution does not recognize a good faith exception to the exclusionary rule.  But, Heien, taken together with the new 15A-974, would seem to signal the end of North Carolina’s bright-line rule that unlawfully-obtained evidence will be suppressed – regardless of good faith.

But not so fast.

State v. Garner, a 1992 North Carolina Supreme Court case states that both the Federal.and North Carolina Constitutions protect the “same fundamental right to be free from unreasonable searches and seizures” – the Fourth Amendment in the Federal Constitution; and Article 1, Section 20 in the North Carolina Constitution.  But while there is a recognized good faith exception to the exclusionary rule under the Federal Constitution, there is no such exception under the North Carolina Constitution (State v. Carter).  And the legislature’s enacting a good faith exception to the exclusionary rule under the re-written version of 15A-974 is meaningless, as that exclusion applies only to motions to suppress pursuant to the statute alone and not the State Constitution.  But a Defendant’s moving to suppress evidence under only the Federal Constitution, opens the door to the good faith exception argument.  It is important, therefore, for defense lawyers to make their motions to suppress evidence that was unreasonably obtained under Article 1, Section 20 of the North Carolina Constitution either in lieu of or at least, in addition to the Fourth Amendment to the Federal Constitution.

Back to Heien v. North Carolina. The Defendant in Heien limited his constitutional argument to the Fourth Amendment, and unfortunately gave the US Supreme Court the opportunity to curtail citizens’ freedom even more than it already was by allowing policemen’s mistakes of law to be forgiven and for unlawfully-obtained evidence to be used against us.  As a North Carolina criminal defense lawyer, I feel I owe an apology to the rest of the country for Heien:  Sorry; we foisted this terrible law on you.  What the Defendant in Heien should have done was moved to suppress the evidence under Article 1, Section 20 of the North Carolina Constitution.  This way, the Fourth amendment would not be relevant as North Carolina’s Constitution and case-law provide greater search and seizure-protection than the the Federal Constitution and case-law do.  Had Heien moved for suppression under the North Carolina Constitution, any appellate court would have been obliged to suppress the evidence as North Carolina’s Constitution does not recognize a good faith exception to the exclusionary rule – whether the mistake was one of fact or law.

Scenario:  A policeman is behind a car in North Carolina; he runs the car’s registration through the Division of Motor Vehicles’ computer system; the information the policeman receives is that there is an insurance lapse on this car and that the license plate must be seized; the policeman stops the car and after talking to the driver becomes suspicious that the driver is impaired; he investigates the possible drunk driving violation and arrests the driver for driving while impaired.  It later turns out that the Division of Motor Vehicles’ information about the insurance lapse was incorrect – there was no lapse.

Issue:  Should the evidence beyond the stop of the car be suppressed?