- A defendant whose Constitutional or statutory rights have been violated may file a motion to suppress, asking the court to exclude any illegally obtained evidence.
- Defendant’s motion must be timely and supported by an affidavit, or else it may be summarily denied by the court.
General Rule and Purpose
- Exclusion is required by the United States or North Carolina Constitutions. See G.S. 15A-974(a)(1); Mapp v. Ohio, 367 U.S. 643 (1961) (holding that the Fourth Amendment exclusionary rule applies in state criminal proceedings);
- The evidence was obtained as a result of a substantial violation of the defendant’s statutory rights under Chapter 15A. See G.S. 15A-974(a)(2); or
- Suppression may sometimes be an appropriate remedy for other violations of law by officers. See, e.g., State v. White, 232 N.C. App. 296 (2014) (ruling that suppression was an appropriate remedy where officers conducted a motor vehicle checkpoint without a written checkpoint policy as required by G.S. 20?16.3A).
Standing to Suppress Evidence
Only a defendant who is “aggrieved” (that is, a defendant whose Constitutional or statutory rights have been violated) has standing to move to suppress evidence, and the defendant bears the burden of proving standing. See G.S. 15A-972, Official Commentary; Rakas v. Illinois, 439 U.S. 128 (1978); State v. Greenwood, 301 N.C. 705 (1981); State v. Ysut Mlo, 335 N.C. 353, cert. denied, 512 U.S. 1224 (1994); State v. Barnes, 158 N.C. App. 606 (2003).
The United States Supreme Court has rejected “standing” as a separate component of Fourth Amendment analysis; however, the Court has also explained that “to claim Fourth Amendment protection, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Minnesota v. Carter, 525 U.S. 83 (1998). Therefore, it is still useful and proper to challenge a defendant’s motion to suppress on the ground that the defendant does not have ‘standing’ (i.e., this particular defendant did not have a personal, reasonable expectation of privacy in the place or item searched) when a defendant is trying to suppress evidence based on an alleged violation of a third party’s Fourth Amendment rights. See, e.g., State v. Sanders, 317 N.C. 602 (1986).
Statutory Requirements for Motion (and Answer)
A defendant’s pre-trial motion to suppress must be: (i) in writing; (ii) served on the state; (iii) give the legal grounds for the motion; and (iv) be accompanied by an affidavit setting forth facts that support the legal grounds. G.S. 15A-977(a). A motion which fails to include an affidavit or satisfy the other requirements may be summarily dismissed, in the court’s discretion. See State v. Phillips, 132 N.C. App. 765 (1999); State v. Creason, 123 N.C. App. 495 (1996); State v. O’connor, 222 N.C. App. 235 (2012).
The “legal grounds” stated in the motion must be more than just general objections to how the evidence was obtained, and the affidavit must also contain specific facts supporting the motion, as opposed to mere conclusory allegations such as “the defendant’s statement was coerced.” See State v. Drakeford, 37 N.C. App. 340 (1978); State v. Phillips, 132 N.C. App. 765 (1999). The defendant does not have to be the affiant for the affidavit – an attorney may also submit an affidavit based on information and belief, including information obtained from other sources besides the defendant. See State v. Chance, 130 N.C. App. 107 (1998).
If the motion to suppress is made at trial instead of pre-trial (see discussions on timing, below), the standards are less formal – the defendant must still articulate the legal grounds for suppression, but the motion does not have to be in writing and no affidavit is required. See G.S. 15A-977(e); State v. Roper, 328 N.C. 337 (1991).
The state may file an answer to a motion to suppress, but it is not required to do so. If the state does file an answer, it must be served on the defendant. G.S. 15A-977(a).
Timing Requirements for Motion to Suppress
- District Court: G.S. 15A-973
Motions to suppress evidence in district court misdemeanor cases are usually made during trial (but see below, concerning DWI trials). The motion may be made before trial if the judge and prosecutor consent. A motion to suppress evidence in felony cases may be made in district court at the probable cause hearing, but the district court judge is not required to rule on the motion. See G.S. 15A-611, Official Commentary. Furthermore, a ruling on a motion to suppress evidence heard in district court is not binding in superior court. State v. Lay, 56 N.C. App. 796 (1982).
For DWI cases in district court, G.S. 20-38.6 provides that defendant may make a motion to suppress or dismiss charges only before trial, except the defendant may move to dismiss charges for insufficient evidence at the close of the state’s evidence and at the close of all the evidence without prior notice. If, during the course of a trial, the defendant discovers facts not previously known, a motion to suppress or to dismiss may be made during the trial. For the procedures allowing the state to appeal a suppression motion or motion to dismiss to superior court, see G.S. 20-38.7.
- Superior Court: G.S. 15A-977
In superior court, motions to suppress evidence can only be made after the superior court has acquired jurisdiction over the case, see G.S. 15A-972, and before the start of trial, see State v. Langdon, 94 N.C. App. 354 (1989), except when the evidence sought to be suppressed is:
- Evidence of a statement made by the defendant;
- Evidence obtained by a search without a search warrant;
- Evidence obtained with a search warrant when the defendant was not present when the search warrant was executed;
- The state has failed to notify the defendant at least twenty (20) working days before trial of its intention to use the evidence.
If the state does give proper notice of its intent to use such evidence, then the defendant must make a motion to suppress no later than 10 working days following receipt of the state’s notice. The motion may (in the court’s discretion) be summarily denied if the defendant fails to make a timely motion. State v. Hill, 294 N.C. 320 (1978).
Discovery vs. Notice
Merely turning over the evidence in discovery has been held insufficient to constitute “notice” of intent to use the evidence at trial. See State v. Fisher, 321 N.C. 19 (1987); but see State v. Reavis, 207 N.C. App. 218 (2010) (defendant’s motion to suppress statement was not timely because he made “no argument that the State failed to disclose the evidence of his interview or statement in a timely manner”). To avoid any potential issues, the prosecutor should give formal notice using form AOC-CR-902M, or ensure that a comparable notice is included in the discovery cover letter and reciprocal discovery demand.
A motion to suppress may also be made at or during trial if the defendant did not have a “reasonable opportunity” to make the motion before trial (for example, in response to late-breaking discovery). G.S. 15A-975(a). If, after a pretrial denial of a suppression motion, the defendant discovers additional pertinent facts that could not have been discovered with reasonable diligence before determination of the motion, the judge may permit the defendant to renew the motion before trial or, if not possible because of when the new facts were discovered, may permit the motion during trial. G.S. 15A-975(c); State v. Watkins, 120 N.C. App. 804 (1995).
Special rules apply to misdemeanor appeals. The state is not required to provide notice of its intent to use the evidence at a trial de novo in superior court (presumably because the defendant should already be aware of this evidence from the prior trial in district court), and therefore the defendant must make any motion to suppress the evidence before trial, regardless of whether the state voluntarily gave notice. See G.S. 15A-975(c).
- Renewing a Motion to Suppress
A motion to suppress made and denied before trial may be renewed during trial only if: (i) the defendant can show that “additional pertinent facts have been discovered,” (ii) the defendant could not reasonably have discovered them before the previous ruling, and (iii) the motion could not have been renewed before trial because of the timing of the discovery of the new facts. See G.S. 15A?975(c). Corroborative evidence does not constitute “additional” facts. See State v. Bracey, 303 N.C. 112 (1981).