NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
____________ COUNTY FILE NO.
STATE OF NORTH CAROLINA
vs. AMENDED MOTION TO SUPPRESS INCORPORATING ADDITIONAL
_________________, GROUNDS
Defendant
Now comes the defendant, by and through counsel, and moves for suppression of evidence pursuant to N.C.G.S. § 15A-972, the 4th Amendment to the United States Constitution and Article 1 sections 19, 20 and 23 of the North Carolina Constitution. Counsel is filing this amended motion to suppress to incorporate an additional grounds for suppression based upon the United States Supreme Court’s ruling on Monday April 21, 2009 in the case of Arizona v. Gant, ___ U.S. ___, 2009 U.S. Lexis 3120, (April 21, 2009). In support of this motion the defendant shows unto the Court as follows:
1. Defendant is currently charged with PWISD marijuana, possession of drug paraphernalia, carrying a concealed weapon, and possession of a firearm by a felon.
2. That at the defendant's trial the State will seek to introduce as evidence items taken from a search of the defendant's vehicle with the basis for such search being claimed as incident to arrest. These items were confiscated by law enforcement officers from the vehicle of the defendant and upon information and belief no search warrant was obtained prior to this search and seizure and no other lawful justification supports these actions. Additionally, at the time of the “search incident to arrest”, the defendant had already been secured and was unable to access the vehicle. The grounds upon which he was arrested were an outstanding order for arrest on a failure to comply with a court order. No other evidence of this offense would be likely to be found from a search of the vehicle. Pursuant to Arizona v. Gant, ___ U.S. ___, 2009 U.S. Lexis 3120, (April 21, 2009), the required grounds for a lawful search incident to arrest were no longer available. Such search was the ultimate result of an unlawful and unconstitutional stop of the defendant’s vehicle by an officer the Winston-Salem Police Department and the subsequent seizure of defendant’s person and vehicle pursuant to the unlawful stop.
3. That the defendant’s property was unlawfully searched and property was seized by officers in violation of the Fourth Amendment to the United States Constitution and in violation of the North Carolina Constitution and that the recovery of items from the defendant’s vehicle by officers acting without a search warrant was as a result of an unconstitutional stop, detention, search and seizure.
4. Additionally, the arrest of the defendant on the outstanding order for arrest was unconstitutional under the North Carolina Constitution as the process was defective and thereby invalid, rendering the arrest without lawful basis as this state does not recognize the good faith exception. State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988).
5. The factual circumstances set forth in this motion are supported and verified by the affidavit of counsel, attached hereto and incorporated by reference.
WHEREFORE, the defendant respectfully requests this Court to suppress the use as evidence of any and all items seized from the vehicle of the defendant.
Respectfully submitted, this the _______ day of _________ 20___.
________________________________
Attorney for Defendant
CERTIFICATE OF SERVICE
This is to certify that the undersigned has this date served this paper (Defendant's Motion to Suppress) in the above-entitled action upon all other parties to this cause by hand delivering a copy hereof to the Office of the __________ County District Attorney properly addressed to:
______________
Assistant District Attorney
Seventh Floor
___________ County
This, the _____ day of __________20____.
__________________________________
Attorney for Defendant
NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
_____________ COUNTY FILE NO.
STATE OF NORTH CAROLINA
vs. AFFIDAVIT IN SUPPORT OF AMENDED MOTION TO SUPPRESS
____________________,
Defendant
Now comes _____________, counsel for the defendant, and makes the following affidavit.
The affiant saith thus:
That I have reviewed the State’s discovery file in this matter, including the reports of the involved law enforcement officers contained therein, and that further I have interviewed the defendant and otherwise investigated this matter. Based upon information developed from the aforementioned sources and upon information and belief, the facts as set forth below have caused me to determine that the search and seizure conducted by law enforcement officers in this matter, which resulted in evidence now sought to be used against the defendant, was unlawful and unconstitutional under both the U.S. and North Carolina Constitutions. The facts which support this belief are set forth below.
According to the officer’s report, he was in his official marked patrol vehicle and was on routine patrol traveling north on Peters Creek Parkway when he observed the defendant’s vehicle traveling northward as well. The officer, without recording any articulable reason to believe that the defendant’s vehicle was committing any crime or infraction, determined to run the vehicle’s tag through his computer. As a result of this search based on the vehicle tag number, the officer learned that the registered owner of the vehicle had an outstanding order for arrest pending against him. Nothing in the officer's report suggested he had any prior knowledge of the registered owner of this vehicle or that he had in any way identified the driver as likely to be the registered owner of the vehicle. Nevertheless, based on the information learned from the DMV search through his computer, the officer initiated a traffic stop using his blue lights. As a result of the exercise of his police authority in activating the blue lights on his patrol vehicle, the defendant pulled his vehicle into a parking lot and stopped. The officer then approached the defendant and requested his driver’s license information. The defendant provided his driver’s license information and the officer verified through his computer that the defendant was a person identified as having an outstanding order for arrest. The officer further verified that the outstanding order for arrest was still pending in the computer system. Having determined that the outstanding order for arrest was still pending and unserved, the officer took the defendant into custody pursuant to the outstanding order for arrest. He searched the defendant’s person incident to his arrest but found no contraband or other material. By this time a second officer had arrived on the scene and he took the defendant under his control and supervision, in handcuffs, away from the vehicle. The defendant was thus rendered unable to access the vehicle in anyway and his person had already been searched incident to his arrest. The first officer then searched defendant's vehicle, without the defendant’s consent, and based on a search incident to arrest. As a result of his search of the vehicle the officer located in the rear passenger foot area a rifle allegedly concealed by a number of articles of clothing. Further search of the vehicle yielded six bags allegedly containing a total of 8.5 g of marijuana, 50 additional empty plastic baggies, and four rounds of assorted types of ammunition.
At the time the officer determined to run the vehicle tags through his computer, he had no articulable suspicion that the vehicle was being operated in any unlawful manner and a search of state records regarding the license plate of the vehicle being operated by the defendant was an unlawful invasion of the defendant's privacy without lawful purpose. Additionally, after obtaining information that the registered owner of the vehicle had an outstanding order for his arrest the officer made no further observations nor obtained any additional information that would lead a reasonable and prudent person to believe that the vehicle was being operated by the registered owner. However, the officer initiated a traffic stop to further investigate his as yet unsubstantiated hunch that the vehicle was being operated by the registered owner, the subject of the outstanding order for arrest. After stopping the vehicle and verifying that the person operating the vehicle was in fact the target of the outstanding order for arrest, the officer placed the defendant under arrest. In doing so he placed him in secure custody away from the vehicle and under the direct control and supervision of another armed uniformed officer and by this time the defendant had already been searched and had no weapons or other contraband. He was unable to access the vehicle in anyway and there would be no other likely evidence to be found in the car to support the charge upon which he was arrested, that being an order for arrest for a failure to comply by paying money owed on a criminal judgment. Accordingly, pursuant to Arizona v. Gant, ___ U.S. ___, 2009 U.S. Lexis 3120, (April 21, 2009), neither of the two permissible bases for justifying a search of the vehicle incident to arrest were present. However, review of the actual order for arrest as issued by the court system in this case indicates that the order for arrest was defective and not lawfully issued pursuant to statute. The sole basis for the issuance of the order was an alleged failure to comply with a court order to pay money. Such a violation would be indirect contempt and would require compliance with the terms and conditions of N.C.G.S. §5A-15 and N.C.G.S. §5A-16 as well as N.C.G.S. §15A-305(5),(8) or (9). The process completely failed to meet the requirements of these statutes and was further not issued by a judge who had previously made any finding that the defendant was not likely to appear at any show cause hearing. As such, since the sole basis for the officer’s search was the arrest of the defendant pursuant to the order for arrest, under North Carolina law the search was without lawful basis as this state does not recognize the good-faith exception to the search warrant requirement.
The evidence should be suppressed based on an unlawful stop, seizure and search under the US and NC Constitutions.
The foregoing 3 pages of text comprising the body of counsel’s affidavit are incorporated by reference with the motion to suppress filed in this matter.
Respectfully submitted, this the _____ day of ___________20_____.
________________________________
Attorney for Defendant
Sworn to and subscribed before me
this the ____ day of __________20____.
_____________________________________
Notary Public
My commission expires:
_____________________