Cops’ Good Faith…I Don’t Think So
Beginning July 1, 2011, the revised version of Section 15A-974 of the North Carolina General Statutes goes into effect. Don’t be fooled by the high number after the dash and the A following 15 into believing this law is some obscure, irrelevant provision in our laws (and, yes, there are plenty of stupid laws on our books). 15A-974 is a law relied on by every criminal defense lawyer in the State (at least those who fight). It’s the law that provides us with the mechanism for the exclusion or suppression of evidence that is illegally obtained. It is our law’s acknowledging the Constitutional rule that evidence unearthed as a result of a policeman’s illegality will be excluded from evidence. It is the law that protects us all from being convicted when the evidence against us was procured by the cop’s misconduct. It is the constitutionally required suppression of evidence under what’s called the exclusionary rule or the (annoyingly metaphorical) fruit of the poisonous tree theory: the tree is the cop’s illegality, the fruit is the evidence obtained from that illegality; the fruit is tainted by the poisonous tree and cannot be eaten or used…you get the idea.
It is a wonderful and unflinchingly necessary part of our law and our freedom. And it’s the law of North Carolina.
The exclusionary rule’s remedy for police misconduct is often disposative of the outcome of the case. And so it should be. While the application of the exclusionary rule may result in someone going unpunished for a crime he actually committed, the more important consequence is the check on the government’s zeal in making its case spilling over into illegal behavior of its own. The exclusionary rule protects us all against government misconduct by telling the government that its illegally procured evidence will be excluded at trial. This exclusion usually results in the government having to dismiss the charge against the person it seeks to convict. The government’s illegality is worse than the individual’s illegality. As it should be.
So what’s going on with 15A-974? Thanks to its sponsor, longtime Wake County politician Skip Stam, the revised version of this law designed to protect us all was rammed through the House and the Senate, and the Governor, in what I can only hope was an act of temporary mental incapacity, signed off on it too. The new version of this law adds this language:
“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.”
This is called the “good faith exception to the exclusionary rule.” And this innocent-sounding shift signals North Carolina’s decision to abandon its ancient tradition of providing greater legal protection to its citizens than the United States Constitution requires and that the United States Government provides its citizens.
Here is an example how the good faith exception works: The cop searches a place that he believes he has the authority to search but actually doesn’t and finds contraband. Ordinarily, the contraband would be suppressed or excluded at trial. Under the good faith exception to the exclusionary rule, if the court found that the cop searched the place “under the objectively reasonable, good faith belief that (his) actions were lawful,” then the contraband is admissible in evidence. So the cop’s mistake excuses what would otherwise exclude the evidence.
What’s so worrisome about the good faith exception to the exclusionary rule is the potential for abuse. Cops know the law. A lot of their training is in the law, obviously. Many police forces have a lawyer who advises them on the law. Cops know what they have to say to overcome problems like the exclusionary rule as long as they have the good faith exception to rely on (if you know what I mean). Of course it’s going to sound “objectively reasonable” when the professional witness says he genuinely believed he was doing something he thought he was allowed to do when he actually wasn’t.
So much better to keep things the North Carolina way: just exclude it; don’t put the policeman in the position of even having to consider whether to lie.
I regret the law change, personally, because of the natural loss of mutual respect and collegiality that currently exists in North Carolina criminal courtrooms that will occur when we have to resort to accusations that the cop is lying. This is what the legislature has done. But who cares? More convictions. Less freedom. That’s fine. Meanwhile, the public loses whatever faith it may have had in government and law enforcement as criminal defense lawyers are forced to resort to accusing cops of lying on the stand, thanks to the legislature’s wisdom.
But get this. In an act of, to my knowledge, unprecedented gall, the politicians who allowed this drivel to become law allowed Section 2 to be included as well. Section 2 reads as follows (don’t forget: this is in a chapter of our laws reserved for, and called, Criminal Procedure): “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.” … … Wow.
Let’s talk about this. What is this doing in a book of legislation? A book of laws? What am I or the state being told I or it can or cannot do? How does one violate this statute? What motions can I make based on this section? What procedure am I or the State supposed to be following? What is this?
This is what it is: It’s the branch of government whose job it is to write laws trying to influence the branch of government whose job it is to interpret laws into changing its mind about a case it has already ruled on. It’s the legislature’s attempt to violate our cherished notion of separation of powers. In writing.
But let’s look at it further. Never mind that the Supreme Court is being asked to make a different ruling in a case it has already ruled on, the request itself actually emphasizes the law’s fundamental weakness. The reason that Section 2 exists is because the prior language allowing for the excuse of the good faith exception to the exclusionary rule is, for now, toothless. All the new language does is establish a good faith exception to the exclusionary rule for violations of Chapter 15A matters. It does not, and cannot, extend the good faith exception to violations of the United States or North Carolina Constitution. This is because only the Courts can make that decision. And this is so because our Constitution says so. And the fact is almost every motion to suppress made and ruled on under this statute is made and ruled on on Constitutional grounds and not on violations of Chapter 15A and, if so, then only in passing.
Section 3 is interesting too. This section tells us that the law applies to all hearings or trials commencing on or after July 1, 2011. If someone can edify me and explain how this isn’t ex post facto to events that occurred before July 1, 2011 I would be most grateful.
Here’s what we really need to take away from this re-writing of what used to be a simple and important part of our Criminal Procedure laws: This is just the beginning. This is how erosion works. The next time the issue of the good faith exception to the exclusionary rule comes up before our Supreme Court, it knows how the legislature wants it to rule, which should never be a factor or even seen to be a factor in a Court’s consideration. I can only hope that the Supreme court, the gatekeeper of freedom, does not allow itself to be intimidated into reversing generations of North Carolina law just because it “exists under federal law.” The States still have the right to protect their citizens from the government to a greater degree than the federal government does. And for now, thankfully, North Carolina does so. Let’s hope that doesn’t change.