120.Nontestimonial Identification Orders
- Nontestimonial identification orders are issued on a showing of less than full probable cause, and require the named person to provide samples or comply with testing to aid in proving the person committed a criminal offense.
- With limited exceptions, nontestimonial identification orders are not used to obtain blood samples, or on persons already in custody.
When a Nontestimonial Order is Used
Situations may arise where an investigation clearly establishes that a crime occurred, and the state has potentially useful evidence recovered from the crime scene (e.g., fingerprints, footprints, DNA, hair samples, or surveillance images), but the state does not yet have probable cause to show that a particular person committed the offense. If the state can satisfy the lower standard of reasonable suspicion to believe that a particular person committed the offense (based on motive, access, prior history with victim, partial identification by a witness, etc.), a nontestimonial order may be used to obtain a sample from that person for forensic comparison to connect him or her to the offense.
The standard of proof required for a nontestimonial identification order is lower than the showing of probable cause required for a search warrant. The state must still demonstrate probable cause that a crime was committed, but only reasonable suspicion that the named person (or suspect) committed that crime. See G.S. 15A-271 – 282; G.S. 7B-2103 – 2106; Hayes v. Florida, 470 U.S. 811 (1985); Davis v. Mississippi, 394 U.S. 721 (1969).
Overview of Procedure
A prosecutor may request a district or superior court judge (or an appellate justice or judge) to issue a nontestimonial identification order directing a person to appear for or comply with a variety of identification procedures (including fingerprints, footprints, measurements, urine/saliva/hair specimens, handwriting exemplars, voice samples, and lineups) when there is:
- Probable cause to believe a felony or class A1 or 1 misdemeanor has been committed;
- Reasonable grounds to suspect that the person committed the offense; and
- The results of the procedure requested will be of material aid in proving the person committed the offense.
G.S. 15A-273; see also G.S. 15A-271 to 282 (Nontestimonial Identification); State v. Irick, 291 N.C. 480 (1977) (discussing purpose of the procedures); AOC-CR-204 (Prosecutor’s Application and Affidavit) and AOC-CR-205 (Nontestimonial Identification Order) for adults, and corresponding AOC-J-204 and 205 for juveniles. See State v. Pearson, 356 N.C. 22 (2002) (there was reasonable suspicion to support the issuance of a nontestimonial identification order to require the suspect, the defendant, to supply head and pubic hair samples and a saliva sample).
There is no corresponding authority for the defense to request a nontestimonial identification order under these statute and demand that a particular test or analysis be performed. See State v. Tucker, 329 N.C. 709 (1991) (defendant applied for nontestimonial identification order to obtain a hair sample from a state’s witness to compare it with hair found at the scene of the crime - court ruled that neither statutory nor other authorization for issuing such an order existed); State v. Ryals, 179 N.C. App. 733 (2006) (trial judge lacked the authority to issue a defense-requested nontestimonial identification order to require the state to obtain a DNA sample from state’s witness to conduct comparison testing with DNA from the hair found on a cap).
Adults vs. Juveniles
- Nontestimonial Identification Order for an Adult
A nontestimonial identification order may require an adult person who either (1) has not been arrested but meets the three criteria of G.S. 15A-273 (probable cause offense was committed; reasonable grounds to believe person committed it; and material aid in proving the case), or (2) has been arrested for such offenses but has been released from custody pending trial, to submit to certain identification tests that may connect the person with a crime. See G.S. 15A-271-282.
Custody makes a difference
A nontestimonial order may not be used on a person who is in custody. If the person is in custody, the state must obtain a search warrant or court order authorizing the identification procedure. See State v. Carter, 322 N.C. 709 (1988); State v. Welch, 316 N.C. 578 (1986) (Article 14 of Chapter 15A applies only to suspects before arrest and those charged and arrested who have been released from custody pending trial; it is inapplicable to an accused person who is in custody); State v. Irick, 291 N.C. 480 (1977). But if the person was previously arrested and then released without being subjected to an identification procedure (such as being fingerprinted), the state can use a nontestimonial order to require that person to submit to the identification procedure now.
A defendant has a statutory (not Constitutional) right to counsel at the identification procedure, and must be advised of this right before the procedure takes place. See G.S. 15A-279(d); State v. Satterfield, 300 N.C. 621 (1980). However, the statutory right does not apply to nontestimonial procedures lawfully conducted by law enforcement without a nontestimonial identification order, such as a test conducted based on probable cause and exigent circumstances. See State v. Coplen, 138 N.C. App. 48 (2000) (upholding denial of motion to suppress results of gunshot residue test that was based on probable cause and exigent circumstances and was conducted without a nontestimonial identification order); State v. Page, 169 N.C. App. 127 (2005) (probable cause and exigent circumstances supported the administration of gunshot residue test on the defendant without the necessity of a search warrant or nontestimonial identification order). If the defendant’s statutory right to counsel is violated, any statements made by the defendant during the proceeding must be suppressed; however, suppression of the results of the identification procedure itself is not required. See G.S. 15A-279(d); Coplen, 138 N.C. App. 48.
- Nontestimonial Identification Order for a Juvenile
A nontestimonial identification order must be used for a juvenile, whether or not the juvenile is in custody (but see exceptions below), and it may only be used in connection with a felony. See G.S. 7B-2105(a)(1) (requires probable cause to believe a felony was committed); see also G.S. 7B-101(14) (“juvenile” is defined as “a person who has not reached the person's eighteenth birthday and is not married, emancipated, or a member of the Armed Forces of the United States”). An officer is required to fingerprint and photograph a juvenile who is 10 years or older when the juvenile allegedly committed a nondivertible offense as set out in G.S. 7B-1701, when a complaint has been prepared for filing as a petition, and the juvenile is in the physical custody of a law enforcement or the Office of Juvenile Justice. See G.S. 7B-2102(a). Nondivertible offenses are: (1) first- and second degree murder; (2) first- or second-degree rape or sexual offense; (3) first- or second-degree arson; (4) any violation of Article 5 (controlled substances) of Chapter 90 that would constitute a felony if committed by an adult; (5) first-degree burglary; (6) crime against nature; and (7) any felony that involves the willful infliction of serious bodily injury on another or that was committed by use of a deadly weapon. A one-on-one show-up between a victim and a juvenile suspect may be conducted without a nontestimonial identification order if the show-up does not otherwise violate due process. See In re Stallings, 318 N.C. 565 (1986).
Taking Blood – Adults, Juveniles, and DWI
A search warrant or other court order based on probable cause must be obtained to take blood. A nontestimonial identification order does not satisfy this requirement because it is based in part on reasonable suspicion, rather than probable cause. See State v. Carter, 322 N.C. 709 (1988) (although G.S. 15A-271 purportedly allows “blood specimens” to be taken with a nontestimonial identification order, the Carter ruling effectively negates that statutory authority); State v. Grooms, 353 N.C. 50 (2000) (search warrant to seize the defendant’s blood, saliva, and hair was supported by probable cause and the state was not required to obtain a nontestimonial identification order so the defendant would have the statutory right to counsel under G.S. 15A-279(d)); State v. Thomas, 329 N.C. 423 (1991) (error to allow admission of blood sample obtained from in-custody defendant with a nontestimonial identification order, but error was harmless beyond a reasonable doubt based on other evidence, and it was not error to admit defendant’s head and pubic hairs, saliva, fingernails, and molds of his teeth, lips, and fingernails that were obtained without a court order after his arrest).
For juveniles only, G.S. 7B-2105(b) provides that a nontestimonial identification order may be issued to obtain blood from a juvenile, as long as the order is based on probable cause and not merely reasonable suspicion. A special provision for making the necessary finding of probable cause is included on form AOC-J-205.
In the impaired driving context, the taking of a blood or urine sample without a search warrant has been held permissible if exigent circumstances actually exist and it is not possible to obtain a search warrant in time to avoid dissipation of the percentage of alcohol in the suspect’s system. See Schmerber v. California, 384 U.S. 757 (1966) (an officer who has probable cause to believe a person has committed an offense involving impaired driving, a clear indication that the blood sample will provide evidence of the defendant’s impairment, and either a search warrant or exigent circumstances, may compel a person to submit to a forced extraction of blood in a reasonable manner); G.S. 20-139.1(d1) (stating that if a person charged with an implied consent offense refuses testing, “any law enforcement officer with probable cause may, without a court order, compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine”); State v. Fletcher, 202 N.C. App. 107, 111 (2010) (finding “the exigency surrounding obtaining a blood sample when blood alcohol level is at issue . . . and the evidence of a probability of significant delay if a warrant were obtained” can constitute sufficient evidence of exigent circumstances); but see Missouri v. McNeely, 569 U.S. 141 (2013) (natural dissipation of alcohol does not constitute a per se exigency in every case sufficient to justify blood test without warrant).