Episode 22: NC Criminal Debrief

[00:00:00.942] [UNKNOWN] Thank you.
[00:00:11.016] [SPEAKER_00] Welcome everybody to episode 22 of the North Carolina Criminal Debrief. I'm your host, Phil Dixon, a faculty member here at the UNC Chapel Hill School of Government. I'm joined in the studio as always with Paul Bonner, our studio technician. Big thanks as usual to Paul on the ones and twos. This is a podcast devoted to covering criminal law issues in North Carolina and beyond. It's been a good little while since our last episode, but it is great to be back in the studio. Fall is kind of busy season for us here at the school, and we've been all doing a lot of conferences and travel. I've also been using a lot of studio time to record a series of video trainings. We're rolling out a boot camp series covering various fundamentals of criminal law and procedure. I hope to be releasing a batch of those sometime in the spring, so be on the lookout for that. As usual, we have tons of interesting stuff to cover, so let's jump right in. I want to start with some North Carolina state Supreme Court decisions. On Friday, October 17th, the state Supreme Court released a bunch of new opinions, a couple of which have major implications for state criminal law. I'm going to start with this case. I think I'm pronouncing it right. State v. Chimuti. That's C-H-E-M-U-T-I. State v. Chimuti. This deals with our state law on law enforcement recordings. That's GS-132-1.4-A. So really talking about body cam, dash cam videos of law enforcement recordings. And they're performing their official duties. Here you had a defendant arrested for resisting arrest in Mooresville, North Carolina. And his attorney sent Mooresville Police Department a subpoena demanding production of the body cam of the alleged resisting arrest incident. The town responds to defense counsel, not with a formal objection, but with a letter. It just writes the attorney back on behalf of the town saying, hey, subpoena is not the proper way to do this. You're going to have to go through the petition for release of law enforcement recordings process as outlined in the statute 132-1.4a. They didn't actually file an objection in court. They didn't file a motion to quash within the time needed under Rule 45 of the Rule of Civil Procedure, which dictate our subpoena rules, but they only respond with this letter. So defense counsel, and I think this may have been critical to the sort of outcome here, defense counsel then goes to the district court judge and seeks a court order compelling the town to comply with the subpoena. Importantly, I think, they did so without notifying the town. The town doesn't actually get any notice that the defendant is going to district court to seek this order compelling the town to comply. The district court gives the defendant this order, notes that, hey, the town had time to file a proper motion to quash or to file objections. They didn't do that. The court issues this order. The town is served the order saying, respond to the subpoena, turn over the materials. You should comply with the subpoena. Well, at this point, the town does go into court and files a proper motion to quash, albeit not a very timely one. But the district court sticks to its guns. It again renews the order for the town to turn this over and notes, hey, like town, you frequently consent to release these when a defendant files a 132 petition. And yes, that is a way for a defendant to get this material, but it's not the exclusive manner for a defendant to get this material. The defendant has a constitutional right under the Sixth Amendment to compel process or compulsory process. And the district court has the power to enforce the subpoena. So town, you're ordered to comply. Your motion to quash is denied. The town doesn't like that outcome, and rather than comply, they appeal to the Court of Appeals. And because I'm not sure there's a clear right of direct appeal here, the town also sought Saoirse O'Reilly review in the alternative. Court of Appeals says, no, thanks. We're not interested. They just completely deny review, seemingly leaving the district court order in place. Town doesn't like that either, though. So they file a cert petition at the North Carolina Supreme Court. who grants review and ultimately vacates the district court order and that that's how this case came to the state supreme court we're in pre-trial posture at the district court level there is this order from the district court to the town directing compliance with the subpoena They don't like it. So they try to get a pretrial review of that order at the Court of Appeals. Court of Appeals says no. They try again at the state Supreme Court and state Supreme Court says, sure, we'll review it. And actually, district court, you were wrong. So going through the court's analysis here, they examine the statute and say the statute says law enforcement recordings, quote, shall only be released pursuant to a court order. According to the majority, this means a court order under 132-1.4a. No other type of order is contemplated, like the one that the district court entered here. The statute goes on to say a person seeking release of recordings can file an action in superior court. And reading those parts of the statute together, the court says this means this petition process outlined in the statute is, in fact, the exclusive manner for a defendant to obtain the recordings. The opinion notes the statute carves out a different process for district attorneys. They can get this material in order to comply with discovery requirements or to use in a district court criminal proceeding. But there is no similar carve out for criminal defendants or defense counsel. So criminal defendants cannot get these recordings by way of a subpoena, even apparently when the town sort of defaults on time to respond formally to the subpoena. The majority opinion says this does not unduly burden the defendant's constitutional rights to present a complete defense or to compel production of evidence. They say this situation is akin to that of Pennsylvania v. Ritchie. That was a famous case from the late 80s or early 90s, if my memory serves. about getting confidential juvenile records. I think it was DSS records there, and that is really what Ritchie stands for these days, is you file what is called a Ritchie motion asking for a court to conduct an in-camera review of what are otherwise records that under the law receive special protection. There it was confidential juvenile records. In this Chimutie case, it is these law enforcement recordings. They say, you know, like in Ritchie, the state has a compelling interest in protecting these records. It is within the power of the legislature to limit access this way. And we're not really interfering with your constitutional rights, defendant, because it's just a different procedure for getting this information. The actual standard for getting this information hasn't changed, so no due process or confrontation or compulsory process problems. The Supreme Court vacated the order and remanded the matter back to the trial court for further proceedings. Justice Riggs dissents. She is joined by Justice Earls. They would have held that this is not the exclusive method of obtaining this information. and would have affirmed the district court's order. But of course, their views did not carry the day here. So where does this leave us? Where does this leave defense counsel? There's still some good to be found in here, I think. I mean, for one, the court says the discretion of the trial court to release these recordings to a defendant in the statute. That discretion must be exercised, quote, consistent with the defendant's rights to due process and compulsory process. The standard for release is outlined in the Ritchie case that I just mentioned, U.S. Supreme Court case Ritchie, which the North Carolina Supreme Court here cites but doesn't actually state. But the standard is the constitutional standard for release of this material is that it's material evidence. Evidence that without which there is a reasonable probability of a different result at trial. And I think when we're talking material that is exculpatory, impeaching, or mitigating, that standard is usually going to be met. So you can read this part of Chimutti talking about how the trial court should exercise their discretion when deciding these requests for release of law enforcement recordings. To say trial judge err on the side of disclosure when it's the defendant asking it and it pertains to the defendant's own case and it's something like this, a resist, where presumably the camera captured the alleged resist. I don't think that's a hard question for most trial judges to say, yeah, this seems material. It seems like the defendant has to is entitled to it. And so I did like that language that said the discretion outlined in the statute must be exercised while keeping the defendant's constitutional rights in mind. To the extent trial courts are liberally releasing the relevant portions of these recordings, maybe it's really not that big of a change. There's an AOC form for this. You fill out the form. You fill out a waiver of the filing fee. You go to file it in civil superior court. you know, hopefully you just get an order that says, yeah, you can have it. Or here, you know, again, the district court noted that the town usually did just consent to release these when a proper petition had been filed. To the extent that's what you're dealing with in your jurisdiction, perhaps this really is just an additional procedural step as the majority claims. It did make me think, you know, what about where the town or the county is not so liberal about agreeing to release the materials? What about districts where there aren't regular sessions of civil superior court? I mean, I do know that is a problem even for criminal superior court sometimes that it's a small jurisdiction and they just don't hold superior court that much and might hold civil superior court even less than they do criminal court. I suppose this can be done in chambers, but it does cause me some concern that this might cause some delay. This might also cause quite a bit of extra work for the Superior Court judges. This was an October 2023 arrest, and this case is getting decided in October of 2025. There still has not been any district court trial on that misdemeanor resist yet. Is this going to be a thing now where if a trial court denies the release of these materials to the defendant, can the defendant utilize the same procedure that the town did here? Do some kind of interlocutory appeal or some pretrial cert petition to get review of that decision? Or is that going to have to be something that is litigated at the district court level, again at the superior court level on de novo appeal, and then again on direct appeal of the superior court verdict? I'm not clear about that. It does occur to me that sort of like a Ritchie motion, if your request for these records is denied or only granted in part, the defense counsel probably need to move to have the complete recording placed into the court file under seal for appellate review. Again, if it's a district court case, assuming you don't go the pretrial cert route to try and get review, presumably because it's a clean slate on de novo appeal to the Superior Court, you can presumably try again once your case is appealed to Superior Court. There, especially in the superior court, I think it's very important to make a record if you're denied or if it's only partially released that you've objected to the adverse ruling and that you've moved to have a sealed copy of the video placed into the file for appellate review. I could see Superior Court judges in a busy district getting sick rather quickly of having to review or even just handle these petitions if the state or the town or the county is going to contest release across the board. And I don't get the sense that that's really happening. My sense is that like Mooresville was doing here, towns are pretty liberal about releasing them to a defendant in this circumstance where it is the defendant on the tape and it captures the thing that the defendant is charged with doing. it may depend on the jurisdiction's practices. And it might depend, there could be an issue depending on how long the superior court is taking to decide these. If you're getting consent orders, again, great. But if the superior court has got a stack of 100 of these from all different kinds of district court misdemeanor cases, I could see them perhaps wanting to institute a local rule or policy that says, perhaps streamlines the process a little bit to avoid burdening the superior court judges with having to review all of this misdemeanor footage. If there are delays, I think that potentially is raising speedy trial concerns. Under U.S. Supreme Court case law, the delays tolerable for a misdemeanor case are much shorter and than they are for more serious cases. Of course, the delay starts to become presumptively prejudicial at least at a year and maybe sooner for these. I mean, this is a class one or two misdemeanor, not the most serious thing in the world. Do these reasons for delay because the defendant has sought this and there's been a delay while that gets ruled on and perhaps there's another delay while the case goes up pre-trial on appellate review of some kind. Maybe that the defendant in that situation is responsible to some extent for the delay. But if I was Chimudee's lawyer and this is coming back to the trial court, the district court level after two years, I would consider making a speedy trial motion to dismiss. Wrapping up this case, I'd note that the opinion does use this really kind of absolute language that, hey, this petition process is the exclusive manner for a defendant to get this stuff. That may be true insofar as it's the defendant cannot otherwise compel it. The defendant can't use a subpoena to compel it by themselves at the district court level. the state's constitutional duties as far as discovery goes. I still have a nagging question in my head. Can the district court order the DA to go get this information from the town or agency and order the DA to disclose it as a matter of constitutional discovery? Of course, there is no statutory right to discovery in district court. As far as I know, Brady rights still apply. And so this, again, is not specifically addressed by the case. But under Brady, the state has its own independent constitutional duty to disclose material evidence. It does not even matter if the defendant asks for it or not. If the DA knows of it, it's existent and knows it's material. They are supposed to go get it and turn it over. I don't think anything in this opinion changes that. One question that came up immediately after this case was released was, well, does that mean the D.A. can't turn it over if they wanted to? And I don't I certainly don't think that's what this case is saying. Again, the state has a streamlined ability to get this stuff, get this information to comply with discovery. And this wasn't directly addressed in the opinion, but I think the state can still go voluntarily get this stuff and turn it over if it wants to, if it deems that it is part of its discovery obligations. And I'd also note this only applies to district court cases. When we're in superior court on a felony case, the defendant is entitled to this as a matter of open file discovery, if not also constitutional discovery. Read narrowly, I think this case says where the state won't turn it over for a misdemeanor defendant in district court and you can't get the police to just agree or the state to just agree to get it and turn it over, you've got to go through this petition process. Maybe there's the possibility of making constitutional discovery arguments in district court, which I don't think was done here. i've trained young felony lawyers on discovery process and that's something we have really already teach them is hey you know you're not going to get discovery in a felony case usually until indictment i mean some jurisdictions are good about letting the defend defense lawyer Look at what's in the DA file or review a police narrative. But the discovery ball doesn't really get going. And certainly discovery doesn't get litigated in a felony case until you're at the stage of indictment. And that might be a year or more into the life of the case. we already were training felony lawyers that hey if you want to get this video and you want to make sure it's not erased you want to make sure it's not lost you want to get it right away before indictments just to inform your analysis of the analysis of the case maybe to help with the bond motion or to help with plea negotiations early, go ahead and do the petition process very early on. If you know there's body cam of this stuff, go ahead and file one. I think it is more burdensome for district court defenders, people handling large misdemeanor caseloads, because if this isn't sort of universal now that almost all officers have some kind of dash cam or body cam, I think more and more of them do every year. And to the extent you've got a defender in a busy jurisdiction with a huge docket carrying, you know, 100, 200 plus cases, it does seem like, hey, you know, every single client, every single defendant probably wants their footage if they're contesting the case at all or, you know, just to see if there's something in it or at least a certain percentage of them are going to want the attorney to get this stuff. And if you have to file dozens and dozens of these petitions all of the time, I could see that being a little bit more burdensome. But we'll have to see how it goes. And I would not give up from the defender perspective these arguments that the state still has its own independent duty to get it and turn it over when it's helpful. That is one that I expect one of my colleagues to blog about soon. We may return to it if we get more case law on it sometime. There's already quite a bit written about that petition for release of body cam, sorry, law enforcement recordings on our blog going back a few years to when that law was passed. I thought a significant one to cover. If you thought that was a biggie, though, let's move on to the other one I wanted to cover from this October batch of state Supreme Court decisions, and that is State v. Rogers. This was a drug case out of New Hanover County. The detective apparently had a tip from a confidential informant that the defendant was shipping large amounts of cocaine from California to the Wilmington area. The detective was able to verify that the phone number the CI said belonged to the defendant did in fact belong to the defendant. And the CI tells this detective, hey, you know, defendant's about to make another trip and go on another drug run to Cali. The detective seeks and receives a court order to access the defendant's cell site location data, and he went under 18 U.S.C. 2703, the federal law, and our state wiretap slash pen register laws. A quick side note, there's sort of an unpreserved argument here lurking in this Rogers case that the This is not a proper use of wiretap or pin registers laws. That's not what cell site location data is. That's not what pin registers or wiretaps do. We don't have a statute that specifically authorizes cell site location data by court order. And I think a safe officer would probably get a search warrant if they wanted that, which comes back up in this case. But I think the officer used that, and I think it may be somewhat common practice for officers to sort of recite these references to our state wiretap and pen register laws in 15A because they're sort of the next closest thing. But they don't actually authorize getting location data. Now, 18 U.S.C. 2703, that again is 18 U.S. Code 2703. That's a lot more broad of a statute than our pen register wiretap laws. And it refers to any electronic communication records or information that this is probably the more appropriate statute to cite. Even though it's a federal statute, it does say any court, including state courts, can utilize this process. The problem here that I'm sure some listeners can see coming is that 2703 purports to authorize these kind of orders on a standard of quote-unquote reasonable to believe, basically reasonable suspicion. And that is not probable cause. That is a lower standard than probable cause. And if folks remember, it was cell site location data, quote unquote, long term, but it was really seven days in U.S. v. Carpenter, the big cell phone tracking case from the U.S. Supreme Court. And Carpenter says that exactly this kind of tracking has to be supported by probable cause, not reasonable suspicion. And so I've seen this kind of challenge pop up to these kinds of orders before where it's like, hey, you're supposed to have probable cause. Really savvy detectives or trial judges will make a finding in this process of probable cause out of a recognition that, hey, Carpenter probably had to read 2703 in light of Carpenter that requires probable cause. If a detective is just going through filling out the form and following the language of the statute, and that's the order that the court ends up signing, as happened here, I think they're finding it basically on a reasonable suspicion standard instead of a probable cause standard, which is potentially a problem. And there's, of course, also some perhaps some room to argue is historical data different from real time tracking when it comes to cell site location data. But here that was that was a thought exercise. I mean, here there was no question the detective was getting historical data about where the defendant had been, as well as live updates on where he where he was going in real time. And the court here seemed to accept that means they would need probable cause. The detective gets this order and, of course, catches the defendant coming back into North Carolina from California with a whole lot of cocaine. So he's charged with trafficking in cocaine and moves to suppress, arguing that this order was bad, didn't have PC, he should go free. Now, the trial court denies this motion, and so the defendant then enters a conditional guilty plea, at least trying to preserve the denial of his motion to suppress for appellate review. As it turns out, the defense counsel here made a mistake that I see commonly. When you give notice of appeal from a criminal case, you give notice of appeal from the final judgment of the court, not the verdict, not the denial of the suppression motion. And here, the defense counsel gave notice of appeal from the denial of the order of suppression, not from the final judgment like you're supposed to do. That said, the record clearly indicated that both the state and the trial court were on notice that the defendant intended to appeal this denial of his suppression motion. And the appellate lawyer handling this was savvy enough to know, I better file a petition for writ of certiorari just in case they find that this notice of appeal is defective. And they did. The court of appeals said this is a defective notice of appeal. And, you know, you basically have lost your right to a direct appeal. But we're going to grant cert to review the merits under these circumstances. Ultimately, the court of appeals rules for the defendant. They said this order was supported only by reasonable suspicion. It was not supported by probable cause. There is no information in the application for this order about the confidential informant. There's no statement that the confidential informant is reliable. There's nothing about a history of reliability or reliable information. There was no real corroboration of the information by the officer other than saying, yep, the number the CI gave me is the same as the actual number of the defendant. And that's not enough. They said this was basically an anonymous tip under the totality of circumstances. That's just not enough. So denial of motion to suppress reversed. The state argued the good faith exception, presumably only as to state constitutional claims here, but the Court of Appeals rejected that argument, pointing to our binding North Carolina Supreme Court precedent, State v. Carter, a 1998 case. Under Carter, there is no good faith exception for violations of the state constitution. And this rule, that there's no good faith exception under the North Carolina Constitution, my sense is that this is so ingrained in practitioners, both on the defense side and the state side, that you don't even really see it come up much, even as to federal constitutional claims where the exception applies. Just so I'm clear, our advice for defenders with suppression motions is, hey, always raise your claims under both the state and federal constitutions. And occasionally you'll see a case from the Court of Appeals where they say, hey, you only raised it under the federal constitution and therefore the good faith exception applies. Too bad. Had you raised it under the state constitution, well, there wouldn't have been a good faith exception to lean on and for the state to fall back on. And maybe you would still win, but you don't. But for the most part, you don't see good faith getting argued because it is just I think the takeaway that's been sort of built into us practitioners is no good faith exception in North Carolina, period. That's not the rule. The rule is no good faith exception for state constitutional violations. but for what it's worth. So state loses this argument and this case at the Court of Appeals level. They again seek discretionary review up at the state Supreme Court and the Supreme Court grants review. The state was specifically asking the North Carolina Supreme Court to adopt a good faith exception for violations of the state constitution and to expressly overrule State v. Carter. That's what the majority did. As far as any Fourth Amendment claim under the federal constitution here, the court said, Leon, good faith exception applies. This is kind of exactly the type of situation where it would. The officer got a court order. It was similar to a warrant. He relied on that in objective good faith. The order identified the information to be obtained. It was not some kind of bare bones application. There was facts to support it. Under those circumstances, the officer was entitled to rely on it, the court said. There was no meaningful deterrent effect to police misconduct. This was not going to deter police misconduct by suppressing this evidence. And that is the purpose of the exclusionary rule. It's not to punish magistrates or judges for their mistakes in the warrant. Exclusion is meant to deter police from violating people's constitutional rights. The opinion goes on to say, as far as any state constitutional claim, nothing in the state constitution textually requires suppression of evidence that's obtained in violation of it, of the constitution. The court says State v. Carter was a confusing and poorly reasoned decision. The Carter court failed to really grapple with the text of this relevant provision, Article 1, Section 20. And it also failed to examine the historical context in which this provision to our Constitution was adopted. We think Carter, it doesn't really make any sense. It's internally inconsistent. And so we are overruling it. Having dispensed with State v. Carter, the court goes on to say, you know, we're not really clear if there's an exclusionary rule in the state constitution at all. The existence of any kind of exclusionary rule in our state constitution, that is merely implied. Not clear we have one. open question, according to the court, whether we even have any exclusionary rule at all under the state constitution. The majority does not go that far in this case. They say, well, that question, whether there's an exclusionary rule at all, that wasn't briefed in this case. So we will leave that question for another day, but we are going to assume without deciding that the And to the extent it exists, a good faith exception to it also exists. So again, if we have an exclusionary rule at all under the state constitution, Leon good faith exception applies to it. Applying that exception here, the state wins, the officer could reasonably rely on this order, so... the trial court correctly denied the motion to suppress. Again, you see Justices Earls and Riggs dissenting. They would have reaffirmed Carter and affirmed the Court of Appeals, but that's where we're left. So I want to spend a few minutes on this good faith exception. Of course, as I sort of just said, we don't have a whole lot of case law on this in North Carolina because it really doesn't come up a lot because practitioners really aren't taught to use it a whole lot. But this comes to us from U.S. v. Leon, a 1984 U.S. Supreme Court case. And For practitioners that are now going to have to grapple with a good faith exception moving forward, I'd encourage you to go read Leon. I mean, it's a pretty good breakdown of the rules here. Basic rule is that when an officer reasonably relies on a search warrant issued by a neutral and detached magistrate or judge, and that warrant is later deemed invalid, the exclusionary rule does not apply. That again is because the purpose of exclusion of the exclusionary rule is to deter police misconduct. When that purpose isn't being served by suppression of the evidence, we shouldn't apply the exclusionary rule. There's a steep societal cost, according to Leon, for the criminal to go free and And society should not have to pay that cost when the mistake is one of the judge or magistrate instead of the officer. We don't expect officers to have a law degree or to second guess every single court order. So the basic exception is they relied on the warrant and reasonably objective good faith. The evidence doesn't get suppressed, even if it turns out later the warrant is invalid. There's differences in jurisdictions about how far this goes. I think I saw at least one circuit where they said, we only are dealing with search warrants when we talk about Leon Goodfaith. We're not talking about other contexts, other types of searches. So that's one argument the defenders might keep in mind moving forward is how far does this go? The U.S. Supreme Court has extended it in a couple of ways. Whether you want to call it a separate doctrine of reasonable mistake of law, like the Heinen case, also from North Carolina. In Heinen, the court said, well, the good faith exception would take care of this, except North Carolina doesn't have a good faith exception. So we're creating the reasonable mistake of law doctrine. I think you could basically look at reasonable mistake of law as good faith obsession, which is there's a statute out there. It's ambiguous. The officer reasonably relied on it. And despite the fact when it's later invalidated. the evidence the officer seized in reliance of that statute doesn't need to be suppressed because that's not going to meaningfully deter police misconduct. That's one situation where it also probably applies, I think the majority of jurisdictions would say it does, when the officer is relying on a law or even a case right judicial precedent that is valid at the time of the officer's actions but that law or that case is later struck down that's probably going to get them good faith exception all things equal, and I would note too that this has been applied to facially valid arrest warrants. The warrant's not there because of any police misconduct or anything like that, but turns out later the warrant wasn't valid, good faith exception probably applies. But it's not all doom and gloom for the defense here. There's times where it's pretty clear the good faith exception does not apply. So I wanted to cover some of that. Leon recognized sort of four or five big categories. I think the biggest is just that the officer's reliant on the warrant has to be objectively reasonable. Good faith does not apply if the officer misled the judge or magistrate with false information or or where the officer omitted material information in reckless disregard of the truth. Maybe less common, but it also will not apply when the judge or magistrate completely abandons their role as a neutral and detached, judicial official. I've occasionally seen this come up. I mean, there's cases where the magistrate or issuing judge went and joined the police to execute the search warrant. That probably gets you past good faith objections to say that's not a neutral and detached magistrate anymore. There's also instances where the defendant could show, for instance, the Magistrate or judge is not even reading the affidavit in support of the search warrant and is just really, truly a rubber stamp for the police. That kind of abdication of their neutral and detached role probably means the good faith exception does not apply. And then these last two are sort of interrelated, I think, at least in my mind. It doesn't apply if the warrant so obviously lacks probable cause that it isn't reasonable for the officer to rely on it. Similarly, the warrant cannot be so obviously deficient, facially deficient, like wholly failing to name the place to be searched or the things to be seized with particularity and still qualify for the good faith exception. We saw some of this at play in a Fourth Circuit case from June 2025. It was in the context of a military investigation, but same basic Fourth Amendment principles at play. Investigators suspected that the defendant's phone contained evidence of child sexual abuse. And so the affidavit in support of a military search warrant said, you know, we think this stuff is on the defendant's phone and we really want to get the defendant's phone. We want to extract all that data. But when they get the warrant, the warrant only authorizes a search of the defendant for the presence of a telephone. Nowhere in the search warrant did it actually authorize the phone to be seized or the phone to be searched. So when police seized and searched the phone pursuant to a warrant that expressly did not authorize those actions, the court said that was so facially deficient, good faith exception did not apply. That case, if you're interested, is U.S. v. Ray. It was from June 3rd out of the Fourth Circuit. The citation for that is 141 F. 4th, 129, 2025. I think the main thing, again, is going to be it all boils down to where officers reasonable and relying on this warrant and to search and seize things that reasonably were authorized by the warrant. And I just note that I'm getting a lot of this from Lefebvre. the big commentator on search and seizure issues, but it's tied to the police misconduct. So when the mistake is the police's, you have a much stronger argument that good faith should not apply. So I think they get a warrant, but there's a totally unreasonable delay in executing the warrant and They're unreasonably seizing people incident to execution of the warrant from like five miles away. That's a just unreasonable mistake. If they're seizing items like we see in the Ray case, they're seizing items pursuant to the warrant that are not named in the warrant and are not otherwise, I assume, in plain view. Those are not instances where good faith is going to apply. When it's the police's own mistake or the police's misrepresentation, that probably does not count as good faith. So it's going to be interesting to see the good faith exception sort of get rolled out in North Carolina. I wonder how long it's going to take for the state to catch on. Prosecutors probably need to raise this if they want to rely on it. For the most part, we don't have a whole lot of case law on the good faith exception because, again, it doesn't get argued a lot. So we don't have a bunch of binding law on this. I would be looking to the Fourth Circuit and other federal circuit courts of appeals for analogous, if non-binding, case law to support when the good faith exception does and doesn't apply. I could go on and spend the whole show about just this case. But I do want to move on. I will say I do plan to write some more about the limits of the good faith exception soon on the blog. It'll be exciting to see how our courts are interpreting this stuff moving forward. For our last case of the day, I wanted to flag a Fourth Circuit case that came out in September 2025 about North Carolina's law that makes it a felony to vote after you have been convicted of a felony and before your citizenship rights have been restored. As most people know, it is a felony to vote in North Carolina after felony conviction until your citizenship rights have been restored. That's actually in our state constitution that you can't vote. convicted felons' citizenship rights are automatically restored by law once they fully complete their sentence. So that means finishing any period of imprisonment or probation, including any period of post-release supervision. That's from GS 13-1. Prior to 2024, North Carolina law said it was a felony if you improperly vote, regardless of whether you knew it. There was no mens rea requirement. It just said if you're a felon and you're not eligible to vote and you vote anyways, you've committed a felony. That's GS 163-275, subsection 5. So here in this case, and I'm sorry, I should have mentioned the name, it's A. Philip Randolph Institute, the North Carolina A. Philip Randolph Institute versus the North Carolina State Board of Elections and every elected DA in the state. You've got some advocacy, voting rights advocacy groups, and they sue the Board of Elections and the DAs of the state arguing that this law in 163... Making it a felony offense to vote illegally was an equal protection and due process violation under the 14th Amendment. I'll skip some of the procedural wrangling, but I would just note while this litigation is pending, our legislature amends this law to 163-275-5 to add a mens rea requirement. They say it's only a crime if you vote after being convicted of felony knowing that you were ineligible to vote. And what does the state do with that? They turn around in court in this litigation and say, well, this now is all moot. We've got a new law. Now it requires knowledge of inability to vote. Nothing to see here. Ultimately, the district court disagreed with that and said, no, people who voted in 2023 improperly would still potentially be subject to prosecution. for violations that occurred before the law was amended. So we've still got a live controversy. It's not moot. And ultimately, rules for the plaintiffs in full on summary judgment says this is an unconstitutional law. It is discriminatory and it is enjoined. The Board of Elections and the state DA's appeal. This goes up to the Fourth Circuit and they unanimously affirm that ruling. They agreed with the district court as far as this mootness argument and found that the institute, the advocacy groups did still have a live interest and that there was something that the judiciary could remedy. But what's fascinating is that they go through this extensive history of felon disenfranchisement in North Carolina. And again, agree with the district court that this violates the equal protection clause. Felony disenfranchisement was originally enacted in 1877. And according to the court, it was done so with discriminatory intent against black North Carolinians. There was a new version of this passed in 1899. It was likewise motivated by implied, if not express, racial animus against black voters. They mentioned at the time, back in 1877, when people used the word felon, it was basically interchangeable with black people because only black people were convicted felons. This was started out way back then, 1877, sort of doubled down in 1899. Board of Elections never contested that this law continues to have a disproportionate impact on black North Carolinians. But the defendants, Board of Education, Board of Elections and DAs said, well, yes, yes, this law was, you know, originally had sort of racist motivations there. But, you know, we did a whole new constitution in 1971 and that that purged any taint of the earlier versions of this law. And the Fourth Circuit rejected that argument. It said the legislature did not fundamentally change the disenfranchisement law then. And they've never really made a direct substantive change to this statute since 1899 because the enactment of the statute was, I quote, motivated by a desire to discriminate against black North Carolinians and continues to this day to have that effect, end quote. It violates the Equal Protection Clause. So we agree we're going to settle this on equal protection grounds. We're not going to decide any due process issue by the district court's judgment permanently enjoining enforcement of the pre-2024 version of this law stands. I would just note that you can only read this case to say that this 163-275 subsection 5 law, making it a felony for felons to vote improperly. This case is only dealing with the pre-2024 version of that law, right? And in 2024, as I mentioned, we inserted this mens rea requirement, trying to make the law a little bit more unconstitutional. But as soon as I published a summary of this I got a question that was like, what's different about the 2024 version of the law? I mean, yes, they've inserted this mens rea requirement that the person know they couldn't vote. But does that change the fundamental analysis that you see in this case that this was a law enacted with discriminatory intent and that has a discriminatory effect? And I can't see any difference. I don't think the legislature changed that by adding a mens rea requirement. So while this does not hold that the 2024 version of the statute is permanently enjoined, one, I imagine there's litigation forthcoming on that question. And two, for anybody representing a person on this charge of illegally voting as a convicted felon, That is an argument, I think a very viable potential argument to make and a motion to dismiss that even with a mens rea, this is still an equal protection problem because of the statute's history and because of its effect. So again, that is a Philip Randolph Institute versus the North Carolina Board of Elections. This case site is 155 F 4th 298. That's a September 12th 2025 case from the Court of Appeals. I think that is it for today. I'm going to try and get back in the studio soon, if not before the holiday season is over. Definitely shortly after it. Happy holidays to all of you listeners. Big thanks, as usual, to Paul Bonner. A big thanks to Monica Yelverton, my associate director for programs and services in the public education realm here at the School of Government. Big thanks to my brother, David Dixon, for composing our theme music. And a big thanks to all of you listeners. I can always be reached with questions, feedback, whatever, by email. Email me at dixon at sog.unc.edu. I hope to talk with you all again soon. Take care.