State v. Gore, ___ N.C. App. ___, 846 S.E.2d 295 (Jun. 16, 2020)

The defendant in this case pleaded guilty to manslaughter and armed robbery, while preserving his right to appeal the denial of his motion to suppress historical cell site location information (“CSLI”) that the state obtained without a search warrant. Evidence at the suppression hearing showed that police responded to a homicide and learned that a white Altima was seen leaving the scene. Officers soon located and boxed in the car but the driver fled on foot, discarding a bloody handgun as he ran. Inside the car officers found drugs, a gun, and a blood-covered cell phone belonging to the defendant. Officers applied for a court order to obtain the records of the phone, including five days of CSLI from around the time of the homicide. The application was sworn under oath and supported by affidavit, and the order was issued based on a finding of probable cause. The phone records revealed the defendant was in the area of the shooting at the time it occurred, and near the location of the white Altima when it was abandoned. The defendant moved to suppress the records on the basis that they were not obtained pursuant to a search warrant based on probable cause, violating his state and federal constitutional rights. The trial court denied the motion, finding that the court order in this case was the equivalent of a search warrant supported by probable cause. Upon review, the Court of Appeals affirmed the trial court’s ruling.

The court first addressed defendant’s federal constitutional claim. Citing Carpenter v. United States, 201 L.Ed.2d 507 (2018), the appellate court agreed that obtaining historical CSLI constituted a search, which requires a warrant supported by probable cause. A court order issued pursuant to the Stored Communications Act (“SCA”) based only on “reasonable grounds” to believe the records would be “relevant and material” to the investigation would not satisfy that standard. However, the order in this case was obtained two years before Carpenter was decided, and it was issued in compliance with the law at that time. Therefore, as in Carpenter, “even assuming law enforcement did conduct a warrantless search in violation of defendant’s Fourth Amendment rights, the federal good faith exception to the exclusionary rule would apply.”

Turning to the state constitutional claim, and noting that the state right at issue must be interpreted at least as broadly as the federal right, the court held that “a warrantless search of historical CSLI constitutes an unreasonable search in violation of a defendant’s rights under the North Carolina Constitution as well.” But after reviewing the statutory requirements for a search warrant and the probable cause standard, the court concluded that the order in this case did satisfy the warrant requirement. First, although it was denominated a court order rather than a warrant, it nevertheless “contained all of the information required in a search warrant” such as the applicant’s name, sworn allegations of fact to support the applicant’s belief, and a request to produce the records. Second, although a court order issued under the SCA is only required to meet a “reasonable grounds” standard akin to reasonable suspicion, the order in this case was actually based upon a finding that there was “Probable Cause that the information sought is relevant and material to an ongoing criminal investigation, involving a First Degree Murder.” That finding of probable cause was “a significant distinction which compels a different outcome than that of Carpenter. Accordingly, because the trial court determined there was probable cause to search defendant’s historical CSLI, the requirements for a warrant were met and defendant’s constitutional rights were not violated.” Since it held that the warrant requirement was met, the majority declined to address whether a good faith exception could have applied under state law.

In a partial concurrence, Judge Dillon disagreed with the majority’s holding that the court order in this case was the equivalent of a search warrant. In his view, the application failed to provide a sufficient basis for finding probable cause to believe that evidence of a crime would be discovered in the particular place to be searched. However, he concurred in the result on the grounds that both the federal and state constitutional claims were refuted by the good faith exception. He would have held that North Carolina does have a good faith exception, pursuant to the 2011 amendment to G.S. 15A-974, which provides legislative authority for the exception that was lacking when State v. Carter, 322 N.C. 709 (1988) was decided. Alternatively, pursuant to state case law, he would have held that obtaining historical CSLI did not constitute a “search” for state constitutional purposes.