exclusionary rule in North Carolina

2025Relying on State v. Carter, 322 N.C. 709 , 370 S.E.2d 553 (1988), where this Court stated, without explanation, that Article I, Section 20 of our state constitution contains an exclusionary rule with no good faith exception, the Court of Appeals stated that it was “bound . . . to disagree” with the State.

2025Relying on State v. Carter, 322 N.C. 709 , 370 S.E.2d 553 (1988), where this Court stated, without explanation, that Article I, Section 20 of our state constitution contains an exclusionary rule with no good faith exception, the Court of Appeals stated that it was “bound . . . to disagree” with the State.

2026App. 341 , 870 S.E.2d 306 (2022), our appellate courts remanded those cases for, respectively: (1) a determination of whether the warrant was validly based on probable cause after disregarding the information in the warrant application gained in unlawful search, McKinney, 361 N.C. at 65 , 637 S.E.2d at 876 ; and, (2) for additional findings about justification for extended seizure or whether an exception to the exclusionary rule applied, Mullinax, 282 N.C.

2026App. 341 , 870 S.E.2d 306 (2022), our appellate courts remanded those cases for, respectively: (1) a determination of whether the warrant was validly based on probable cause after disregarding the information in the warrant application gained in unlawful search, McKinney, 361 N.C. at 65 , 637 S.E.2d at 876 ; and, (2) for additional findings about justification for extended seizure or whether an exception to the exclusionary rule applied, Mullinax, 282 N.C.

2021Defendant asserts the exclusionary rule mandates suppression because the confession was fruit of the poisonous tree. ¶ 87 The “fruit of the poisonous tree doctrine” provides for application of the exclusionary rule “[w]hen evidence is obtained as the result of illegal police conduct, not only should that evidence be suppressed, but all evidence that is the ‘fruit’ of that unlawful conduct should be suppressed.” State v. Pope, 333 N.C. 106, 113-14 , 423 S.E.2d 740, 744 (1992) (citations omitted).

2021Defendant asserts the exclusionary rule mandates suppression because the confession was fruit of the poisonous tree. ¶ 87 The “fruit of the poisonous tree doctrine” provides for application of the exclusionary rule “[w]hen evidence is obtained as the result of illegal police conduct, not only should that evidence be suppressed, but all evidence that is the ‘fruit’ of that unlawful conduct should be suppressed.” State v. Pope, 333 N.C. 106, 113-14 , 423 S.E.2d 740, 744 (1992) (citations omitted).

2026We apply the exclusionary rule where it “result[s] in appreciable deterrence” and “the benefits of deterrence . . . outweigh the costs.” Id. at 141 (quoting United States v. Leon, 468 U.S. 897, 909 (1984)).

2026In thus deciding whether to apply the exclusionary rule, we focus “on the ‘flagrancy of the police misconduct’ at issue.” Davis, 564 U.S. at 238 (quoting Leon, 468 U.S. at 909 ).

2025ROGERS Opinion of the Court proclamation that the state constitution includes an exclusionary rule. 331 N.C. at 505–06, 417 S.E.2d at 510 .

2025ROGERS Opinion of the Court proclamation that the state constitution includes an exclusionary rule. 331 N.C. at 505–06, 417 S.E.2d at 510 .

2010“The deterrent effect of the exclusionary rule is based on the assumption that a police officer realizes that his duty is to conduct searches and seizures only in a manner that will help secure a conviction.” Id.

1993Therefore, the exclusionary rule is not itself a constitutional right of the aggrieved party, but is instead “a judicially created remedy designed to safeguard Fourth Amendment rights . . . .” United States v. Calandra, 414 U.S. 338, 348 , 38 L.

2020See id. at 718 , 370 S.E.2d at 559 (“North Carolina was among a handful of states that adopted an exclusionary rule by statute rather than by judicial creation.”). 2 We note that the exclusionary rule itself (and by extension the good faith exception to that rule) is not a rule mandated by the Fourth Amendment but rather is a judicially established “rule [to] effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” Illinois v. Krull, 480 U.S. 340, 347 , 94 L.Ed.2d 364, 373 (1987). 7 STATE V.

2020See id. at 718 , 370 S.E.2d at 559 (“North Carolina was among a handful of states that adopted an exclusionary rule by statute rather than by judicial creation.”). 2 We note that the exclusionary rule itself (and by extension the good faith exception to that rule) is not a rule mandated by the Fourth Amendment but rather is a judicially established “rule [to] effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” Illinois v. Krull, 480 U.S. 340, 347 , 94 L.Ed.2d 364, 373 (1987). -7- STATE V.

2016Our North Carolina Supreme Court adopted the "inevitable discovery" doctrine established in Nix v. Williams, 467 U.S. 431 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984), as an exception to the exclusionary rule, whereby unlawfully obtained evidence may nevertheless be admitted at trial if the State proves by a preponderance *862 that the evidence ultimately would have been discovered through lawful means.

2016Our North Carolina Supreme Court adopted the "inevitable discovery" doctrine established in Nix v. Williams, 467 U.S. 431 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984), as an exception to the exclusionary rule, whereby unlawfully obtained evidence may nevertheless be admitted at trial if the State proves by a preponderance *862 that the evidence ultimately would have been discovered through lawful means.

2014Defendant argues that such an arrest was illegal, as it required probable cause not present in this case, and any resulting evidence is subject to the exclusionary rule under Wong Sun v. United States, 371 U.S. 471 (1963).

2008See Wong Sun v. United States, 371 U.S. 471, 484 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963) ("The exclusionary prohibition extends as well to the indirect as the direct products of such invasions."); Mapp v. Ohio, 367 U.S. 643, 654-55 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961) (applying the exclusionary rule to the states, thereby barring admission of evidence obtained in violation of the Fourth Amendment in state criminal trials).

2026It “contains no provision expressly precluding the use of evidence obtained in violation of its commands,” Arizona v. Evans, 514 U.S. 1, 10 (1995), but the Supreme Court’s “decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.” Herring v. United States, 555 U.S. 135, 139 (2009) (citing Weeks v. United States, 232 U.S. 383, 398 (1914)).

2025The Court began to “impose more rigorous weighing of the [exclusionary rule’s] cost and deterrence benefits,” id., illustrating that the exclusionary rule is a prudential, judicially created rule, see Herring v. United States, 555 U.S. 135, 139 , 129 S. Ct. 695, 699 (2009) (“The Fourth Amendment . . . ‘contains no provision expressly precluding the use of evidence obtained in violation of its commands,’ . . . ” (quoting Arizona v. Evans, 514 U.S. 1, 10 , 115 S. Ct. 1185, 1191 (1995)).

2026In thus deciding whether to apply the exclusionary rule, we focus “on the ‘flagrancy of the police misconduct’ at issue.” Davis, 564 U.S. at 238 (quoting Leon, 468 U.S. at 909 ).

2026The facts in and the majority’s reliance upon Davis “does not present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled.” Id. at 250 , 180 L.

2020See id. at 718 , 370 S.E.2d at 559 (“North Carolina was among a handful of states that adopted an exclusionary rule by statute rather than by judicial creation.”). 2 We note that the exclusionary rule itself (and by extension the good faith exception to that rule) is not a rule mandated by the Fourth Amendment but rather is a judicially established “rule [to] effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” Illinois v. Krull, 480 U.S. 340, 347 , 94 L.Ed.2d 364, 373 (1987). -7- STATE V.

2020See id. at 718 , 370 S.E.2d at 559 (“North Carolina was among a handful of states that adopted an exclusionary rule by statute rather than by judicial creation.”). 2 We note that the exclusionary rule itself (and by extension the good faith exception to that rule) is not a rule mandated by the Fourth Amendment but rather is a judicially established “rule [to] effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” Illinois v. Krull, 480 U.S. 340, 347 , 94 L.Ed.2d 364, 373 (1987). -7- STATE V.

2017The Supreme Court of the United States has deemed the exclusionary rule “‘applicable only . . . where its deterrence benefits outweigh its substantial social costs.’” Strieff, __ U.S. at __, 195 L.

2017The Supreme Court of the United States has deemed the exclusionary rule " 'applicable only ... where its deterrence benefits outweigh its substantial social costs.' " Strieff, ---U.S. at ----, 136 S.Ct. at 2061 , 195 L.Ed.2d at 407 (quoting Hudson v. Michigan , 547 U.S. 586 , 591, 126 S.Ct. 2159 , 2163, 165 L.Ed.2d 56 (2006) ).

2026It “contains no provision expressly precluding the use of evidence obtained in violation of its commands,” Arizona v. Evans, 514 U.S. 1, 10 (1995), but the Supreme Court’s “decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.” Herring v. United States, 555 U.S. 135, 139 (2009) (citing Weeks v. United States, 232 U.S. 383, 398 (1914)).

2025The Court began to “impose more rigorous weighing of the [exclusionary rule’s] cost and deterrence benefits,” id., illustrating that the exclusionary rule is a prudential, judicially created rule, see Herring v. United States, 555 U.S. 135, 139 , 129 S. Ct. 695, 699 (2009) (“The Fourth Amendment . . . ‘contains no provision expressly precluding the use of evidence obtained in violation of its commands,’ . . . ” (quoting Arizona v. Evans, 514 U.S. 1, 10 , 115 S. Ct. 1185, 1191 (1995)).

2022BOYETTE 2022-NCCOA-904 Opinion of the Court ¶ 14 However, as each of these arguments incorrectly assumes that the exclusionary rule applies during probation revocation proceedings, they are all without merit.2 In 1982, our Supreme Court held “that evidence which does not meet the standards of the [F]ourth and [F]ourteenth [A]mendments to the United States Constitution may be admitted in a probation revocation hearing.” State v. Lombardo, 306 N.C. 594, 602 (1982).

2010According to our Supreme Court, “[i]n deciding whether the exclusionary rule should be applied ... , we must keep in mind its purpose.” State v. Lombardo, 306 N.C. 594, 599 , 295 S.E.2d 399, 403 (1982).

2021This “independent source doctrine” is an exception to the exclusionary rule when “a later, lawful seizure is genuinely independent of an earlier, tainted one.” Id. “[T]he independent source doctrine provides that evidence obtained illegally should not be suppressed if it is later acquired pursuant to a constitutionally valid search or seizure.” State v. McKinney, 361 N.C. 53, 58 , 637 S.E.2d 868, 872 (2006). ¶ 88 Neither the trial judge, jury, the original Supreme Court’s unanimous opinion, the Commission, nor the three-superior court judge panel found any misconduct by Detective Leathers.

2021This “independent source doctrine” is an exception to the exclusionary rule when “a later, lawful seizure is genuinely independent of an earlier, tainted one.” Id. “[T]he independent source doctrine provides that evidence obtained illegally should not be suppressed if it is later acquired pursuant to a constitutionally valid search or seizure.” State v. McKinney, 361 N.C. 53, 58 , 637 S.E.2d 868, 872 (2006). ¶ 88 Neither the trial judge, jury, the original Supreme Court’s unanimous opinion, the Commission, nor the three-superior court judge panel found any misconduct by Detective Leathers.

2025This Court therefore “decline[d] to apply the exclusionary rule to this good[ ]faith violation of the [F]ourth [A]mendment” because “the officer reasonably relied on the order that was issued by the judge” and “took every reasonable step to comport with [F]ourth [A]mendment requirements.” Id.

2023See State v. Welch, 316 N.C. 578 , 587–89, 342 N.C. 789 , 794–95 (1986) (concluding that the good faith exception was applicable and therefore “decline[d] to apply the exclusionary rule to [a] good-faith violation of the [F]ourth [A]mendment”).

2010App. at 127 n.3, 479 S.E.2d at 228-29 (declining to apply the exclusionary rule in a license revocation hearing because “[t]he United States Supreme Court has held that the exclusionary rule does not apply in the context of civil proceedings, United States v. Janis, 428 U.S. 433, 459-60 , 49 L.

2010App. at 127 n.3, 479 S.E.2d at 228-29 (declining to apply the exclusionary rule in a license revocation hearing because “[t]he United States Supreme Court has held that the exclusionary rule does not apply in the context of civil proceedings, United States v. Janis, 428 U.S. 433, 459-60 , 49 L.

1992The defendant further contends, under this first issue, that the derivative evidence obtained directly from the pawnshop, regarding his ownership or purchase of the murder weapon in 1986, should have been suppressed because the exclusionary rule arising from Article I, Section 20 of the North Carolina Constitution does not and should not include an “inevitable discovery exception.” While conceding that there is no provision in our State Constitution which explicitly calls for the exclusionary rule, the defendant contends the rule has been held by this Court to be “implied” in Article I, Sectio

1992The defendant further contends, under this first issue, that the derivative evidence obtained directly from the pawnshop, regarding his ownership or purchase of the murder weapon in 1986, should have been suppressed because the exclusionary rule arising from Article I, Section 20 of the North Carolina Constitution does not and should not include an “inevitable discovery exception.” While conceding that there is no provision in our State Constitution which explicitly calls for the exclusionary rule, the defendant contends the rule has been held by this Court to be “implied” in Article I, Sectio

2023In fact, “whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question of whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Arizona v. Evans, 514 U.S. 1, 10 (1995) (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)).

1988Even the terribly undesirable result of preventing criminal prosecutions by denying "the jury access to clearly probative and reliable evidence" would be an acceptable price to pay in cases such as this, if it would have any substantial deterrent effect on violations of constitutional liberties. *564 Rejection of the good faith exception to the exclusionary rule, however, "can have no substantial deterrent effect in the sorts of situations under consideration in this case... [and] cannot pay its way in those situations." Id.

2010The exclusionary rule does not preclude the admission of physical evidence obtained as a result of a Miranda violation where "the record shows there was no actual coercion but only a violation of the Miranda warning requirement.. . ." Id. ; accord State v. Hardy, 339 N.C. 207, 224 , 451 S.E.2d 600, 610 (1994) ("Physical evidence obtained as a result of a failure to give required Miranda warnings. . . need not be excluded."); State v. Harris, 157 N.C.App. 647, 653 , 580 S.E.2d 63, 67 (2003) ("[P]hysical evidence obtained in violation of Miranda is admissible unless obtained as a result of actua

2010The exclusionary rule does not preclude the admission of physical evidence obtained as a result of a Miranda violation where “the record shows there was no actual coercion but only a violation of the Miranda warning requirement . . . .” Id.; accord State v. Hardy, 339 N.C. 207, 224 , 451 S.E.2d 600, 610 (1994) (“Physical evidence obtained as a result of a failure to give required Miranda warnings . . . need not be excluded.”); State v. Harris, 157 N.C.

2026JULIUS TYSON, J., dissenting These latter cases noted the Supreme Court of the United States’ rejection of indiscriminate application of the exclusionary rule, asserting the suppression of evidence should be a “last resort” rather than a “first impulse.” Id. at 341; 892 S.E.2d at 863 (citing Hudson v. Michigan, 547 U.S. 586, 591 , 165 L.

2026JULIUS TYSON, J., dissenting These latter cases noted the Supreme Court of the United States’ rejection of indiscriminate application of the exclusionary rule, asserting the suppression of evidence should be a “last resort” rather than a “first impulse.” Id. at 341; 892 S.E.2d at 863 (citing Hudson v. Michigan, 547 U.S. 586, 591 , 165 L.

2025See, e.g., State v. Small, 293 N.C. 646 , 239 S.E.[2d] 429 (1977) (implying an exclusionary rule arising from Article [I], Section 20); State v. Reams, 277 N.C. 391 , 178 S.E.[2d] 65 (1970) (same); State v. Colson, 274 N.C. 295 , 163 S.E.[2d] 376 (1968) (same).

1984See, e.g., State v. Small, 293 N.C. 646 , 239 S.E. 2d 429 *644 (1977) (implying an exclusionary rule arising from Article 1, Section 20); State v. Reams, 277 N.C. 391 , 178 S.E. 2d 65 (1970) (same); State v. Colson, 274 N.C. 295 , 163 S.E. 2d 376 (1968) (same).

2026It “contains no provision expressly precluding the use of evidence obtained in violation of its commands,” Arizona v. Evans, 514 U.S. 1, 10 (1995), but the Supreme Court’s “decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.” Herring v. United States, 555 U.S. 135, 139 (2009) (citing Weeks v. United States, 232 U.S. 383, 398 (1914)).

1992The evolution of the exclusionary rule in North Carolina is set forth in State v. Colson, 274 N.C. 295 , 163 S.E.2d 376 , wherein our Court stated that in derogation of the common law, the exclusionary rule was first laid down in Weeks v. United States, 232 U.S. 383 , 58 L.

2016See Davis v. United States, 564 U.S. 229 , 131 S.Ct. 2419 , 180 L.Ed.2d 285 (2011) ; see also Stone v. Powell, 428 U.S. 465 , 494 at n. 37, 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976) (holding that "the exclusionary rule is a judicially created remedy rather than a personal constitutional right").

2016See Davis v. United States, 564 U.S. 229 , 131 S.Ct. 2419 , 180 L.Ed.2d 285 (2011) ; see also Stone v. Powell, 428 U.S. 465 , 494 at n. 37, 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976) (holding that "the exclusionary rule is a judicially created remedy rather than a personal constitutional right").

2025Thereafter, “the [S]tates [were] no longer free to adopt or reject at will the exclusionary rule as a means of enforcing the Fourth Amendment in state courts.” State v. Colson, 274 N.C. 295, 306 , 163 S.E.2d 376, 384 (1968).

2025Thereafter, “the [S]tates [were] no longer free to adopt or reject at will the exclusionary rule as a means of enforcing the Fourth Amendment in state courts.” State v. Colson, 274 N.C. 295, 306 , 163 S.E.2d 376, 384 (1968).