MOTION TO PRESERVE EVIDENCE-FELONY

STATE OF NORTH CAROLINA                       IN THE GENERAL COURT OF JUSTICE

                                                                       SUPERIOR COURT DIVISION

____________ COUNTY                             FILE NO.

  

STATE OF NORTH CAROLINA,                                         

                                                                                           

vs.                                                                                      MOTION FOR PRESERVATION OF EVIDENCE

_____________,                                                                                     

                                                                    

         Defendant.                                         

_________________________________________________________

              NOW COMES the Defendant, John Doe, by and through the undersigned counsel, ___________, Assistant Public Defender, pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1 §§ 19 and 23 of the North Carolina Constitution, Article 48 of the North Carolina General Statutes, and N.C.Gen.Stat. § 15A-501(6), and hereby requests that this Honorable Court enter an Order commanding all state and local law enforcement officers, employees, agents and/or attorneys involved in the investigation of the above-captioned matters to preserve and retain any and all evidence obtained in the investigation of these matters.   

The Defendant further requests that this Honorable Court order all state and local law enforcement to release to the prosecution all materials and information acquired during the course of the investigation into these matters, pursuant to N.C.Gen.Stat. § 15A-501(6).  In support of the foregoing Motion, the Defendant states unto the Court as follows:

  1. The materials the Defendant seeks to have preserved are discoverable under Article 48 of the North Carolina General Statutes.
  1. At the filing of this motion, the defense has not been provided with discovery, as the Defendant has not been indicted for the offenses for which he has been arrested. 
  1. N.C.Gen.Stat. § 15A-501(6) states:

Upon the arrest of a person, with or without a warrant, but not necessarily in the order hereinafter listed, a law-enforcement officer…must make available to the State on a timely basis all materials and information acquired in the course of all felony investigations.  This responsibility is a continuing and affirmative duty.

  1. N.C.Gen.Stat. § 15A-903(a)(1) states:

Upon motion of the defendant, the court must…make available to the defendant the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant.  The term “file” includes…investigating officers’ notes…or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant.

6.              In order, for the Defendant to be afforded his statutory right to inspect and copy all evidence under N.C.Gen.Stat. § 15A-903(a)(1), the evidence must be available to the Defendant for inspection. 

7.              In order to ensure all evidence is available and not inadvertently destroyed, the Court should enter an Order requiring law enforcement to preserve any and all evidence associated with these matters.

8.              The interests of justice and the rights of the Defendant require the preservation of all evidence connected with these matters and, as such, the Court should enter an Order requiring that any and all evidence in these matters be preserved.

WHEREFORE, the Defendant respectfully prays unto this Honorable Court for the following relief:

  1. That the Court enter an Order commanding all state and local law enforcement officers, employees, agents and/or attorneys involved in the investigation of the above-captioned matters to preserve and retain any and all evidence in this case;

2.    That the Court enter an Order requiring all state and local law enforcement  to release to the prosecution all materials and information acquired during the course of the investigation into these matters, pursuant to N.C.Gen.Stat. § 15A-501(6); and

3.    For such other and further relief to which the Defendant may be entitled and which the Court may deem just and proper.

              This the ________ day of __________ 20______.

By:___________________________

      Attorney for Defendant                                                 

Certificate of Service

 

              This shall certify that a copy of the foregoing Motion for Preservation of Evidence was this day served upon the District Attorney by the following method:

_____              depositing a copy hereof in a postpaid wrapper in a post office or official depository under the exclusive care, custody, and control of the United States Postal Service, properly addressed to Office of the District Attorney;

__X__              by personally serving the Office of the District Attorney via hand delivery (Assistant District Attorney _______________);

_____              by transmitting a copy via facsimile transmittal to the Office of the District Attorney; and/or

_____              by depositing a copy in the box for the Office of the District Attorney maintained by the Clerk of Superior Court.

              This the _______ day of __________ 20_____.

                                                                      By:___________________________

                                                                     Attorney for Defendant

STATE OF NORTH CAROLINA                       IN THE GENERAL COURT OF JUSTICE

                                                                       DISTRICT COURT DIVISION

_________ COUNTY                                   FILE NO.

 

STATE OF NORTH CAROLINA,                           

                                                                                   

vs.                                                                                 ORDER ALLOWING DEFENDANT’S MOTION FOR

JOHN DOE,                                                                   PRESERVATION OF ANY AND ALL EVIDENCE

                                          Defendant.                           

____________________________________________________

              THIS MATTER having come before the undersigned District Court Judge, presiding at the June 12, 2007 session of Criminal District Court for the County of Wake, pursuant to the Defendant’s Motion for Preservation of Any and All Evidence, which was filed on June 7, 2007;

              AND THE COURT, finding that at the time this matter was presented to the Court, the State of North Carolina was represented by Assistant District Attorney ____________, and the Defendant was represented by ________________________;

              AND THE COURT, after determining that it has jurisdiction over the subject matter and the parties, after considering the Defendant’s Motion, and after noting that the prosecution has no objection to the granting of the Motion, finds that the Defendant’s Motion for Preservation of Any and All Evidence should be allowed;

              IT IS THEREFORE, ORDERED, ADJUDGED, and DECREED, that the Defendant’s Motion to Preserve Any and All Evidence is hereby granted in its entirety to the extent that it supports the discovery rules of the North Carolina General Statutes and the discovery requirements under the Constitutions of the United States and the State of North Carolina;

              IT IS FURTHER ORDERED, ADJUGED, and DECREED that all state and local law enforcement officers, employees, agents, and attorneys involved in the investigation of the above-captioned matters shall preserve and retain any and all evidence in this case,;

              IT IS FURTHER ORDERED, ADJUGED, and DECREED that all state and local law enforcement officers, employees, agents, and attorneys involved in the investigation of the above-captioned matters shall release to the prosecution all materials and information acquired during the course of the investigation into these matters, pursuant to N.C.Gen.Stat. § 15A-501(6).

              This the ________ day of _____________ 20_____.

                                                                                    ____________________________________

                                                                                    Presiding District Court Judge