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holding "[t]he withdrawal of a blood sample from a person is a search subject to protection by article I, section 20 of our constitution"
Summary of this case from State v. BucklewOpinion
No. 40A87
Filed 28 July 1988
Criminal Law 84; Searches and Seizures 4 — blood sample — invalid nontestimonial identification order — no good faith exception to exclusionary rule under N.C. Constitution There is no good faith exception under Art. I, 20 of the North Carolina Constitution to the exclusion of evidence obtained by an unreasonable search and seizure. Therefore, Art. I, 20 required the exclusion of evidence derived from a blood sample obtained by officers from defendant in reliance upon a nontestimonial identification order which was improperly issued because defendant was in custody where no search warrant authorizing the taking of defendant's blood was issued, defendant did not consent, and probable cause and exigent circumstances did not exist to justify a warrantless search.
APPEAL by defendant from judgments sentencing him to consecutive terms of life for conviction of rape in the first degree and thirty years for conviction of kidnapping in the first degree and to a term of two years, to run concurrently with the sentence for kidnapping, for conviction of misdemeanor assault, said sentences imposed by Lee, J., at the 3 November 1986 session of Superior Court, ORANGE County. Heard in the Supreme Court 15 March 1988.
Lacy H. Thornburg, Attorney General, by Daniel C. Oakley, Special Deputy Attorney General, and John H. Watters, Assistant Attorney General, for the state.
Malcolm Ray Hunter, Jr., Appellate Defender, by Louis D. Bilionis, Assistant Appellate Defender, for defendant.
Justice MITCHELL dissenting.
Justices MEYER and WEBB join in this dissenting opinion.
Justice MEYER dissenting.
Justices MITCHELL and WEBB join in this dissenting opinion.
This case presents us with the question of whether there is a good faith exception under article I, section 20 of the North Carolina Constitution to the exclusion of evidence obtained by unreasonable search and seizure. We hold that there is no good faith exception to the requirements of article I, section 20 as applied to the facts of this case and, accordingly, we grant defendant a new trial because evidence that should have been excluded under our state constitution was admitted in the trial of his case.
Defendant was convicted of rape in the first degree, kidnapping in the first degree, and assault inflicting serious bodily injury on the seventy-eight-year-old victim.
Defendant contends on appeal that (1) taking a sample of his blood without a search warrant violated his rights under the federal and state constitutions, and (2) the record is inadequate to permit a conclusion that scientific testimony on blood types based upon the technique called electrophoresis is sufficiently reliable to permit its acceptance in a court of law. Because we hold that article I, section 20 of the North Carolina Constitution requires the exclusion of the scientific evidence derived from the blood sample, we do not find it necessary to reach other issues presented in this case. Nor do we find it necessary to review in detail all of the evidence presented at trial.
The state's evidence at trial showed that on 18 April 1986 defendant entered the home of the victim and forced her to go with him through her backyard and through a plowed field. He then raped her, severely beat her face, and left her unconscious. Defendant, a prisoner at the Orange County Prison Unit, had been working that day at Branson's sawmill, where he had a work-release job. At approximately 4:15 p.m. defendant was seen walking into the woods with a shovel and a roll of toilet paper, it being the practice of the workmen to relieve themselves in the woods. He did not report to the van at 4:30 p.m. to be taken back to the prison unit as was expected of him. He was found by searchers at approximately 6:15 p.m., some thirty-three yards from where the victim was found unconscious at 11:00 p.m. Defendant smelled of alcohol and was dirty and disheveled. He was taken to a trailer on the sawmill grounds. The following day the victim's eyeglasses were found under defendant's hat in the trailer. A shovel and paper had been found near the unconscious body of the victim.
The victim's eyesight is considerably impaired, but she was able to describe her assailant as wearing a yellow shirt, a brown apron, work pants, and work shoes. This accords with the description of defendant's dress on the date in question given by witnesses with normal vision. The victim testified that her assailant covered his face but appeared to her to be wearing a red wig and to have a red complexion. Defendant was called "Red" by his co-workers at the mill.
On 21 April, State Bureau of Investigation agent William Weis made application for a nontestimonial identification order requesting, inter alia, that a blood sample be taken from defendant. The order was issued and blood was taken from defendant at North Carolina Memorial Hospital. Defendant made a pretrial motion to suppress any evidence obtained pursuant to the order because the resulting search violated the federal and state constitutions and constituted a substantial violation of chapter 15A of the North Carolina General Statutes. Defendant relied upon the holding in State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986), that drawing blood from an in-custody defendant without first obtaining a search warrant violated his fourth and fourteenth amendment rights under the Federal Constitution. See also State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977). However, in Welch this Court also recognized a good faith exception to the federal constitutional requirement that evidence illegally obtained not be admitted where an officer relied on a nontestimonial identification order to take blood from a defendant in custody. The trial court denied defendant's motion to suppress, ruling that "Officer Weis had acted in good-faith in obtaining the order . . . ."
At trial, SBI serologist Mark S. Nelson testified, over defendant's objection, that a blood smear on underwear seized from defendant after he was returned to the Orange County Prison Unit on 18 April 1986 was consistent with the victim's blood type but definitely was not defendant's blood type. Defendant's blood type had been determined through analysis of the blood sample obtained on the authority of the contested nontestimonial identification order.
It is settled law in this jurisdiction that a nontestimonial identification order may not properly issue for identification procedures to be performed upon an in-custody suspect. We held in Irick, 291 N.C. at 490, 231 S.E.2d at 840, that "Article 14 of Chapter 15A applies only to suspects and accused persons before arrest, and persons formally charged and arrested, who have been released from custody pending trial. The statute does not apply to an in custody accused." In Welch, this Court again held that the statute is not applicable for the issuing of a nontestimonial identification order when the suspect or accused is in custody. Similarly, article 14 of chapter 15A did not apply to the taking of the blood sample from defendant, who was in custody in the Orange County Prison Unit. Therefore, the question for resolution is whether the obtaining of the evidence from defendant violated his rights under our state constitution. Defendant argues that his rights under article I, section 20 of the North Carolina Constitution have been violated by the taking of the blood sample and the subsequent introduction at trial of evidence obtained from the sample. Because we decide this case on adequate and independent state constitutional grounds, we do not reach or decide the question of whether the challenged search violated defendant's fourth and fourteenth amendment rights under the Federal Constitution. The federal cases cited or discussed are being used only for the purpose of guidance and they do not compel the result that this Court has reached. Michigan v. Long, 463 U.S. 1032, 77 L.Ed 2d 1201 (1983); Jackson v. Housing Authority, 321 N.C. 584, 364 S.E.2d 416 (1988).
Our state constitution, like the Federal Constitution, requires the exclusion of evidence obtained by unreasonable search and seizure. State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied, 404 U.S. 840, 30 L.Ed 2d 74 (1971); State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968), cert. denied, 393 U.S. 1087, 21 L.Ed 2d 780 (1969). In language somewhat different from that of the fourth amendment to the United States Constitution, article I, section 20 of the North Carolina Constitution forbids unreasonable search and seizure:
General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.
Even were the two provisions identical, we have the authority to construe our own constitution differently from the construction by the United States Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision. Michigan v. Long, 463 U.S. 1032, 77 L.Ed 2d 1201; State v. Arrington, 311 N.C. 633, 642, 319 S.E.2d 254, 260 (1984).
Until 1914 neither state nor federal search and seizure law knew an exclusionary rule, with the sole exception of the state of Iowa. In that year, the United States Supreme Court barred from the federal courts the use of evidence obtained by federal officers in an illegal search. Weeks v. United States, 232 U.S. 383, 58 L.Ed. 662 (1914). In Wolf v. Colorado, 338 U.S. 25, 93 L.Ed. 1782 (1949), the Court held that the fourth amendment is enforceable against the states through the due process clause of the fourteenth amendment, but declined to extend the exclusionary rule to the states. Wolf left the states free to experiment with various methods of protecting their citizens' fourth amendment rights. With the exception of the state of Iowa, which held illegally obtained evidence to be inadmissible into its courts as violative of its state constitution in 1903, State v. Sheridan, 121 Iowa 164, 96 N.W. 730, no state supreme court anticipated Weeks by holding that its state constitution gave rise to an exclusionary rule. The states followed the common law rule that the admissibility of evidence was not affected by the means used to obtain it. In the landmark case of Mapp v. Ohio, 367 U.S. 643, 6 L.Ed 2d 1081 (1961), the United States Supreme Court held that the fourth amendment forbids the admission of illegally obtained evidence in state courts. Although the states did not anticipate Weeks, roughly half of them, including North Carolina, did not wait for Mapp but adopted an exclusionary rule under state law before that decision required that state courts exclude illegally obtained evidence under the Federal Constitution. North Carolina repudiated the traditional common law principle in 1937 when the General Assembly enacted a statutory exclusionary rule, N.C.G.S. 15-27. Thus the exclusionary rule was first received into our law fifty years ago, a quarter of a century before the Mapp decision mandated that under the Federal Constitution state courts must exclude illegally obtained evidence.
Sheridan was overruled by State v. Tonn, 195 Iowa 94, 191 N.W. 530 (1923).
Elkins v. United States, 364 U.S. 206, 4 L.Ed 2d 1669 (1960), contains an appendix presenting in tabular form the law of the states on admissibility of illegally seized evidence to that date.
The withdrawal of a blood sample from a person is a search subject to protection by article I, section 20 of our constitution. See Schmerber v. California, a, 384 U.S. 757, 16 L.Ed 2d 908 (1966); State v. Welch, 316 N.C. 578, 342 S.E.2d 789. Although Schmerber and Welch were decided on federal constitutional grounds, an individual's constitutional rights under the Constitution of North Carolina must receive at least the same protection as such rights are accorded under the Federal Constitution. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 64 L.Ed 2d 741 (1980). Therefore, under our state constitution, a search warrant must be issued before a blood sample can be obtained, unless probable cause and exigent circumstances exist that would justify a warrantless search. Welch, 316 N.C. 578, 342 S.E.2d 789. Here, there were no exigent circumstances to justify a warrantless search; defendant's blood type would remain constant. No search warrant authorizing the taking of defendant's blood was issued. Therefore, obtaining the sample of defendant's blood violated his rights under article I, section 20 of the North Carolina Constitution to be free from unreasonable searches and seizures. Under our expressed public policy since 1937, the challenged evidence should have been suppressed. N.C.G.S. 15A-974(1) (1983).
The state, however, urges this Court to adopt a "good faith" exception to our long-standing exclusionary rule. We now turn to address this issue.
Since deciding Mapp in 1961, the United States Supreme Court has limited the scope of application of the exclusionary rule in several cases. In each case the Supreme Court has weighed the costs of the more expansive application of the rule — which it has identified as that of a quantum of deterrence of police misconduct foregone — against the costs of lost probative evidence. In each case the Court has determined that the costs are too slight to outweigh the benefits of admissibility. Thus, in Alderman v. United States, 394 U.S. 165, 22 L.Ed 2d 176 (1969), the Court held that a defendant has no standing to object to the admission of evidence obtained in violation of the fourth amendment rights of another. In United States v. Calandra, 414 U.S. 338, 38 L.Ed 2d 561 (1974), the Court declined to apply the rule to grand jury proceedings. United States v. Janis, 428 U.S. 433, 49 L.Ed 2d 1046 (1976), held that evidence illegally obtained by a state criminal law enforcement officer is admissible in a federal civil proceeding. Stone v. Powell, 428 U.S. 465, 49 L.Ed 2d 1067 (1976), held that federal habeas corpus relief on the ground that illegally obtained evidence was admitted at trial is unavailable to a state prisoner who has had a full and fair state trial. United States v. Havens, 446 U.S. 620, 64 L.Ed 2d 559 (1980), held that it is constitutionally permissible to admit illegally seized evidence to rebut a defendant's response to a matter first raised by the government during cross-examination.
In United States v. Leon, 468 U.S. 897, 82 L.Ed 2d 677 (1984), the Supreme Court drew upon the analysis developed in these cases to work a more profound curtailment of the federal exclusionary rule. The Court there held that evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, although ultimately found to be unsupported by probable cause, may be admitted in the government's case in chief. Justice White, writing for the Court in Leon, directs that a case-by-case approach supplant the Weeks/Mapp per se rule in suppression cases involving warrants ultimately found to be inadequate. Justice White concludes:
We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances.
468 U.S. at 926, 82 L.Ed 2d at 700. We must agree with the recent observation of the New Jersey Supreme Court, in its 1987 decision, State v. Novembrino, 105 N.J. 95, 519 A.2d 820, that at least with respect to searches under warrant, the Leon good faith exception has swallowed the Weeks/Mapp rule:
According to Justice White's formulation, in suppression cases involving warrants the application of the exclusionary rule will be the exception, and recognition of the good-faith "exception" will be the prevailing standard.
105 N.J. at 139, 519 A.2d at 846.
From its introduction through the present day, the exclusionary rule has met strong criticism from able judges and commentators and has also evoked forceful support. We shall not here attempt to recount every episode in this well-known history. Chief Justice Weintraub of the New Jersey Supreme Court distilled the essence of the continuing controversy in an opinion written three years before Mapp was decided:
See, e.g., People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926), written by then Judge Cardozo, the best known case in which a state supreme court declined to follow the Weeks rule, and Wigmore's biting indictment of the Weeks decision, 8 Wigmore, Evidence 2184 (3d ed. 1940).
The exclusionary rule rests upon two propositions. The first is that government should not stoop to the "dirty business" of a criminal in order to catch him. The second is that civil and criminal remedies against the offending officer are as a practical matter ineffective, and hence the rule of exclusion is the only available remedy to protect society from the excesses which led to the constitutional right.
Eleuteri v. Richman, 26 N.J. 506, 512, 141 A.2d 46, 49 (1958). We subscribe to these propositions, both with respect to the exclusionary rule and with respect to a good faith exception to it. To reach this conclusion we draw upon the past fifty years of experience in this state, as well as the experience of other states: The exclusionary rule is indispensable to achieve the purposes for which prohibitions against unreasonable search and seizure were written into the constitutions of the revolutionary era.
Sam J. Ervin, Jr., formerly a justice of this Court, wrote with respect to this question:
This constitutional guaranty against unreasonable searches and seizures has its roots deeply implanted in the human heart, the common law of England, and tyrannies perpetrated by government on the people of England and the colonies.
The oldest and deepest hunger of the human heart is for a place where one may dwell in peace and security and keep inviolate from public scrutiny one's innermost aspirations and thoughts, one's most intimate associations and communications, and one's most private activities. This truth was documented by Micah, the prophet, 2,700 years ago when he described the Mountain of the Lord as a place where "they shall sit every man under his own vine and fig tree and none shall make them afraid" (MICAH 4:4).
The common law of England originated in the instincts, the habits, and the customs of the people. Hence, it is not surprising that on emerging from the mists of unrecorded history, the English common law embraced as a fundamental principle that every man's home is his castle and the correlative rule that every man may resist to the utmost unidentified persons who seek to enter his home against his will. . . .
. . .
. . . The common-law courts of England . . . authorized searches and seizures only by special warrants, which were based on oaths disclosing the reasons for their issuance and describing the places to be searched and the persons or things to be seized.
The courts of England that were independent of the common law, such as the Court of Star Chamber . . . and the Court of High Commission . . . did not respect the principle of the common law that every man's home is his castle.
They authorized searches and seizures by general warrants, which were based on mere suspicion and commanded searches and seizures for the enforcement of particular laws without specifying the places to be searched or the persons or things to be seized. In so doing, the general warrants delegated to the persons executing them the autocratic power to decide according to their own notions what places should be searched, what persons should be arrested, and what things should be seized. . . .
. . . .
. . . Despite honest beliefs of sincere persons to the contrary, the exclusionary rule is an essential ingredient of the Fourth Amendment. Apart from it, the Amendment's guaranty against unreasonable searches and seizures is worse than solemn mockery, and the Amendment might well be expunged from the Constitution as a meaningless expression of a merely pious hope. . . .
If letters and private documents can be thus seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.
Ervin, The Exclusionary Rule: An Essential Ingredient of The Fourth Amendment, The True Bill (N.C. Bar Ass'n), vol. 5, No. 1, at 1-3 (1985). The framers of our constitution sought to check the tendency of government to overreach by placing a constitutional mantle around the right to privacy in one's person, home, and effects. They therefore constitutionalized the probable cause standard and the requirement that the government limit the scope of its invasion of privacy by identifying the persons, places, and items to be searched or seized.
North Carolina was among a handful of states that adopted an exclusionary rule by statute rather than by judicial creation. The 1937 statute requiring the exclusion of evidence obtained under an illegal search warrant was amended in 1951 to extend the rule to apply to unlawful warrantless searches. The amended statute was repealed in 1969 and replaced, effective 1975, by N.C.G.S. 15A-974. Section 15A-974 provides in pertinent part that "[u]pon timely motion, evidence must be suppressed if: (1) Its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina." Since 1937 the expressed public policy of North Carolina has been to exclude evidence obtained in violation of constitutional rights against unreasonable searches and seizures.
In 1938, State v. McGee, 214 N.C. 184, 198 S.E. 616, presented to the Supreme Court the very question of the admissibility of the fruits of illegal searches conducted without a warrant left open by N.C.G.S. 15-27. The Court upheld the search over the dissent of Justice Devin, joined by Justice Stacy who argued that the spirit if not the letter of the 1937 statute demanded the exclusion of an illegal warrantless search a fortiori since it forbade the admission of evidence obtained with a formally deficient warrant.
The exclusionary sanction is indispensable to give effect to the constitutional principles prohibiting unreasonable search and seizure. We are persuaded that the exclusionary rule is the only effective bulwark against governmental disregard for constitutionally protected privacy rights. Equally of importance in our reasoning, we adhere to the rule for the sake of maintaining the integrity of the judicial branch of government.
The preservation of the right to be protected from unreasonable search and seizure guaranteed by our state constitution demands that the courts of this state not condone violations thereof by admitting the fruits of illegal searches into evidence. This thesis was adumbrated in Weeks. There Justice Day wrote:
The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures . . . should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.
232 U.S. at 392, 58 L.Ed. at 655. It was given its classical formulation by Justices Holmes and Brandeis in separate and prescient dissents in the 1928 decision, Olmstead v. United States, 277 U.S. 438, 72 L.Ed. 944. In his Olmstead dissent, Justice Holmes reasoned that "no distinction can be taken between the government as prosecutor and the government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed." 277 U.S. at 470, 72 L.Ed. at 953. With more passion but with equal force, Justice Brandeis concluded his dissent with these words:
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent, teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.
277 U.S. at 485, 72 L.Ed. at 959-60.
Justice Brennan's dissent in Leon continues this line of interpretive argument about constitutional protections and the exclusion of illegally obtained evidence. Justice Brennan summarizes the position in these words: "The right to be free from the initial invasion of privacy and the right of exclusion are coordinate components of the central embracing right to be free from unreasonable searches and seizures." 468 U.S. at 935, 82 L.Ed 2d at 706.
One of the great purposes of the exclusionary rule is to impose the template of the constitution on police training and practices. Unavoidably, a few criminals may profit along with the innocent multitude from this constitutional arrangement. As Justice Traynor noted in his opinion in People v. Cahan, 44 Cal.2d 434, 449, 282 P.2d 905, 914 (1955):
He does not go free because the constable blundered, but because the Constitutions prohibit securing the evidence against him. Their very provisions contemplate that it is preferable that some criminals go free than that the right of privacy of all the people be set at naught.
We conclude that the exclusionary rule has been a potent force for achieving its intended deterrent purpose. Warrants today are more carefully prepared and scrutinized before issuance. Likewise, the exclusionary rule is responsible for the systematic, in-depth training of police forces in the law of search and seizure. It can be no part of our constitutional duties to signal a retreat from these salutary advances in constitutional compliance which have guided police practice in this state since 1937.
See Milner, Supreme Court Effectiveness and Police Organization, 36 Law Contemp. Prob., 467, 475 (1971); Kamisar, Public Safety v. Individual Liberties: Some "Facts" and "Theories," 53 J. Crim. L.C. P.S. 171, 179-82 (1962); Sachs, The Exclusionary Rule: A Prosecutor's Defense, 1 Crim. J. Ethics 28, 31 (1982).
In our view, logic and history combine to refute those who hope to spare society the costs resulting from the exclusionary rule by adopting alternative remedies. In the period of history between Weeks and Mapp, when the states were free to experiment with effective alternative remedial devices, none were developed. The Mapp Court was forced to conclude that "other remedies have proved worthless and futile." 367 U.S. at 652, 6 L.Ed 2d at 1088. The damage action, which has inspired the most interest as an alternative to the exclusionary rule, may provide some relief upon occasion to an individual whose rights have been invaded, but offers scant prospect of replacing the exclusionary rule as an institutional deterrent to unconstitutional invasions of privacy. In sifting the prospects of this alternative remedy, commentators have aptly noted that its many defects include the disinclination of juries to doubt the testimony of police witnesses about conduct undertaken to protect the public, the doctrine of sovereign immunity, the judgment-proof character of the working police officer, and the difficulty that the aggrieved plaintiff may encounter in finding and paying counsel to represent him in a damage action. Article I, section 18 of our state constitution directs our courts to provide every person with a remedy for injury. We will not abandon a proven remedy in favor of one which, because its ineffectualness is patent beforehand, mocks this constitutionally mandated guaranty.
See Stewart, The Road to Mapp v. Ohio and Beyond. The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, at 1387-88 (1983); 1 W. LaFave, Search and Seizure 1.2(c) (1987); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 430 n. 37 (1974).
In determining the value of the exclusionary rule, we regard the crucial matter of the integrity of the judiciary and the maintenance of an effective institutional deterrence to police violation of the constitutional law of search and seizure to be the paramount considerations. We do not discount the implications of the failure to convict the guilty because probative evidence has been excluded in even one grave criminal case. The resulting injuries to victim, family, and society are tolerable not because they are slight but because the constitutional values thereby safeguarded are so precious.
The state, relying upon Welch, 316 N.C. 578, 342 S.E.2d 789, argues that this Court should create a good faith exception to the exclusionary rule under our state constitution which would in the case before us permit the admission of evidence obtained by officers in objectively reasonable reliance on a nontestimonial identification order subsequently found to have been improperly issued. In interpreting the Federal Constitution in Welch, we adopted the holding of Leon, 468 U.S. 897, 82 L.Ed 2d 677, and extended it to a case not involving a defective search warrant. Except for Illinois v. Krull, 480 U.S. ___, 94 L.Ed 2d 364 (1987), the United States Supreme Court has applied a good faith exception to the exclusionary rule only in cases involving defective search warrants. E.g., Massachusetts v. Sheppard, 468 U.S. 981, 82 L.Ed 2d 737 (1984).
Here, one of the dissents relies heavily upon Krull. The distinctions of the present case and Krull are obvious. In Krull, the Supreme Court, in a 5 to 4 decision, applied a good faith exception to an unconstitutional search where the officer in good faith relied upon a statute authoring warrantless administrative searches, the statute ultimately being found to violate the fourth amendment. Krull involved the least intrusive of searches, the search of an automobile wrecking yard to determine if the automobile parts dealer was complying with the Illinois Vehicle Code. The Court reasoned that where the officer in good faith relies upon such statute, the deterrent effect of the exclusionary rule is lost.
We are presently concerned with the most intrusive search, the invasion of defendant's body and the withdrawal of defendant's blood. Our constitution, as well as the Federal Constitution, requires a valid search warrant for this purpose. The United States Supreme Court in Krull based its reasoning on the lack of deterrence to avoid the exclusionary rule. North Carolina, however, justifies its exclusionary rule not only on deterrence but upon the preservation of the integrity of the judicial branch of government and its tradition based upon fifty years' experience in following the expressed public policy of the state. Under the judicial integrity theory, our constitution demands the exclusion of illegally seized evidence. The courts cannot condone or participate in the protection of those who violate the constitutional rights of others. Although the United States Supreme Court applied a cost-benefit analysis in Krull, the basis of our exclusionary rule is not suited to such simplistic resolution of the issue. See generally Note, Illinois v. Krull: Extending the Fourth Amendment Exclusionary Rule's Good Faith Exception to Warrantless Searches Authorized By Statute, 66 N.C.L. Rev. 781 (1988).
In the present case we are not bound by our holding in Welch because here we are construing our state constitution rather than the Federal Constitution.
Counsel for the state argue that we should follow Leon and Welch because an order pursuant to article 14 of chapter 15A of the North Carolina General Statutes is tantamount to a search warrant. This argument must fail because the taking of a blood sample without consent violates our state constitution unless done pursuant to a valid search warrant or upon probable cause and under exigent circumstances. Leon, 468 U.S. 897, 82 L.Ed 2d 677; Schmerber v. California, 384 U.S. 757, 16 L.Ed 2d 908; State v. Fisher, 321 N.C. 19, 361 S.E.2d 551 (1987). A nontestimonial identification order will not fulfill this requirement. This is true because a nontestimonial identification order can be issued without a probable cause finding as required for the issuance of a search warrant. N.C.G.S. 15A-273, -242, -245 (1983). Probable cause to arrest cannot satisfy this requirement. There must be probable cause to believe that the item to be seized constitutes evidence of an offense or the identity of a person who participated in the crime in order to secure a search warrant. N.C.G.S 15A-242(4). A nontestimonial identification order may be issued upon a finding, as to the item to be taken, that it will be of "material aid in determining whether the person named in the affidavit committed the offense." N.C.G.S. 15A-273(3). Further, the requirement of N.C.G.S. 15A-273(2) that there be "reasonable grounds to suspect" that the person named committed the offense fails to rise to the level of the probable cause requirement necessary to obtain a search warrant. See Comment, Criminal Law and Procedure — Nontestimonial Identification Orders Without Probable Cause, 12 Wake Forest L. Rev. 387 (1976).
It must be remembered that it is not only the rights of this criminal defendant that are at issue, but the rights of all persons under our state constitution. The clearly mandated public policy of our state is to exclude evidence obtained in violation of our constitution. N.C.G.S. 15A-974(1). This policy has existed since 1937. If a good faith exception is to be applied to this public policy, let it be done by the legislature, the body politic responsible for the formation and expression of matters of public policy.
We are not persuaded on the facts before us that we should engraft a good faith exception to the exclusionary rule under our state constitution.
We reverse the ruling of the court below admitting the blood evidence and grant the defendant a new trial.
New trial.