The good faith exception to the exclusionary rule
Friends,
It is hard to believe that the election on November 3rd for the Supreme Court of North Carolina may come down to one case decided in 1988 by the State Supreme Court, State v. Carter. 322 N.C. 709. The two candidates have split in writing on that question. Incumbent Justice Anita Earls wrote a vigorous dissent in State v. Rogers, 388 N.C. 453, 920 S.E2d 775 (2025) stating that State v. Carter should not be overruled. Representative Sarah Stevens in 2011 voted along with 81 members of the State House including 65 Republicans and 16 Democrats and with 48 members of the State Senate including 30 Republicans and 18 Democrats, signed by Governor Bev Perdue as follows: Section 2. of Session Law 2011-6, codifying G.S. 15A-974 provides,
The General Assembly respectfully requests that the North Carolina Supreme Court reconsider, and overrule, its holding in State v. Carter that the good faith exception to the exclusionary rule which exists under federal law does not apply under North Carolina State law.
What does Justice Anita Earls know that almost the entire Legislature, the Democratic Governor, and three Democratic Supreme Court Justices did not see? The wisdom of Carter is for voters in 2026 to decide. Let me share with you the facts of that case in enough detail so that you understand the consequences.
Salient facts in State v. Carter:
Robert Lee Carter was convicted of first-degree rape and first-degree kidnapping. Carter entered the home of a 78-year-old victim, forcing her outside through her backyard and a plowed field, raping her, severely beating her, and leaving her unconscious. He was convicted November 3, 1986. The key issue was whether taking Carter’s blood without a search warrant violated Article I, § 20 of the North Carolina Constitution. The Carter Court treated the blood draw as a protected “search” and found no exigency justifying it. Carter’s blood type had been determined at trial through analysis of the blood sample obtained on the authority of a nontestimonial identification order signed by a judge. The Carter Court found that a judge used the wrong procedure and that Carter should get a new trial. At that time the rape victim was 80 to 81 years old.
Dissents in Carter by Chief Justice Burley Mitchell, John Webb, and Louis Meyer (all Democrats):
MITCHELL, Justice, dissenting.
By refusing to permit the introduction of evidence seized by officers acting in the honest belief that a court order authorizing its seizure was lawful, this Court gives much greater protection to criminal defendants than they have been given by the Supreme Court of the United States. In fact, the Supreme Court has specifically stated in a similar situation, “[W]e refuse to rule that an officer is required to disbelieve a judge who has just advised him, by word and by action, that the warrant he possesses authorizes him to conduct the search he has requested.” We should take the same position as to the court ordered search in this case.
In its failing effort to strike a proper balance between the guarantee against unreasonable searches and the public safety, the majority has chosen to place such a heavy thumb on the scales of justice that they will always weigh in favor of the criminal defendant. The inflexible exclusionary rule the majority has selected for North Carolina will not advance the right to be free from unlawful searches, but it will prevent trial courts from reaching the truth and convicting the guilty in a substantial number of cases. The majority should recognize a good faith exception to our exclusionary rule similar to that applied by the Supreme Court under the Constitution of the United States. To do otherwise serves no valid purpose, substantially interferes with enforcement of the criminal law and diminishes the integrity of the judicial branch of government. Therefore, I dissent.
I recognize that our State Constitution, like the Constitution of the United States, requires the exclusion of evidence obtained by an unreasonable search and seizure. I even agree with the majority that in the past the exclusionary rule may have been the only practical remedial device for preventing unreasonable searches and seizures. Even the majority seems to recognize, however, that conditions causing the Supreme Court of the United States to first adopt the exclusionary rule have largely ceased to exist.
One need only read any daily newspaper on a regular basis to know that civil judgments against law enforcement officers for violations of constitutional rights are no longer unusual. Indeed, it is now quite possible for evidence unlawfully seized to be excluded in a criminal case against an accused, while the accused receives additional or double relief in the form of a civil judgment for the same violation of rights. The decision of the majority here greatly increases the likelihood of cases in which criminals will be set free while, at the same time, public officials who have made honest mistakes in good faith are required to pay them damages. It is obvious beyond any need for further discussion that such cases will not further the majority’s goal of promoting the integrity of the judiciary, but will result, instead, in the judiciary being subjected to well-deserved ridicule by the general public.
The majority has devoted several pages of its opinion to noble and stirring quotations of legal luminaries of the past, such as former Justices Holmes and Brandeis and our own Sam J. Ervin, Jr., former United States Senator and former Justice of this Court. Although I agree with almost everything contained in those quotations from decades past, it appears that their scope and grandeur have blinded the majority to the obvious fact that they have almost no relevance to the present case.
The high-minded quotations relied upon by the majority warn against permitting courts to be used to further the designs of law enforcement officers who intentionally break the law to gather evidence against criminals. All courts have taken those warnings to heart, and evidence seized by intentionally unlawful methods has been excluded under the Fourth Amendment to the Constitution of the United States for decades. Further, evidence seized by such intentionally unlawful means is not rendered admissible by the good faith exception to the exclusionary rule. The majority simply has chased a constitutional rabbit which was caught and skinned long ago.
By definition, the “good faith exception” to the exclusionary rule applies only in situations in which law enforcement officers have acted under the objectively reasonable belief that their actions were lawful and correct. Although the majority implies that by choosing a rule which excludes such evidence seized in good faith it somehow protects our privacy from invasion—by police, not by criminals—the majority completely fails to tell us how exclusion of evidence seized by officers in good faith reliance upon a court order will further this noble purpose. This failure of the majority is quite understandable, since exclusion of evidence in such cases will serve no valid purpose and will greatly harm the innocent public.
Only in recent years have researchers begun to study the effects of the exclusionary rule. At least one study indicates that the rule results in either a failure to prosecute or a failure to convict as much as 2.35% of all those arrested for felonies. The same study suggests that the exclusionary rule is an even greater impediment to prosecutions for particular crimes such as drug crimes which are unusually dependent on physical evidence. Thus, it has been estimated that the exclusionary rule results in the failure to prosecute or the failure to convict in as much as 7.1% of felony drug charges.
Even the terribly undesirable result of preventing criminal prosecutions by denying “the jury access to clearly probative and reliable evidence” would be an acceptable price to pay in cases such as this, if it would have any substantial deterrent effect on violations of constitutional liberties. Rejection of the good faith exception to the exclusionary rule, however, “can have no substantial deterrent effect in the sorts of situations under consideration in this case … [and] cannot pay its way in those situations.” The majority’s calculated choice to reject the good faith exception to the exclusionary rule under our state constitution simply will not make our people more secure in their right to be free from unreasonable searches.
In the present case, officers relying in good faith upon a written judicial order took a sample of the defendant’s blood for analysis and use as evidence. It should be obvious to anyone that excluding this evidence will not deter other officers from making similar mistakes in good faith as to the legal validity of court orders upon which they rely. When following judicial orders in the future, the officers still will not know they are doing anything wrong. Therefore, unlike punishment of intentionally unlawful conduct by officers, which the exclusionary rule arguably deters, punishment of an officer’s good faith reliance on a judicial order cannot deter future similar conduct.
Certainly, a refusal to recognize a good faith exception to the exclusionary rule will have no significant “deterrent” effect on judges and magistrates. As the Supreme Court of the United States has correctly pointed out:
To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates …, their reliance is misplaced. First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.
Third, and most important, we discern no basis … for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate…. And, to the extent that the rule is thought to operate as a “systemic” deterrent on a wider audience, it clearly can have no such effect on individuals empowered to issue search warrants. Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected significantly to deter them. Imposition of the exclusionary sanction is not necessarily meaningful to inform judicial officers of their errors, and we cannot conclude that admitting evidence obtained pursuant to a warrant while at the same time declaring that the warrant was somehow defective will in any way reduce judicial officers’ professional incentives to comply with the Fourth Amendment, encourage them to repeat their mistakes, or lead to the granting of all colorable warrant requests.
The same common sense reasoning is applicable to cases such as this, in which the search has been conducted pursuant to a nontestimonial identification order. Further, the reasoning of the Supreme Court is not made any less compelling by virtue of the fact that this issue arises under our State Constitution rather than the Constitution of the United States. The exclusionary rule is identical under both constitutions, and the good faith exception to that rule also should be applied equally under both constitutions.
The Supreme Court of the United States has always restricted application of the exclusionary rule “to those areas where its remedial objectives are thought most efficaciously served.” The Supreme Court also:
has acknowledged that the suppression of probative but tainted evidence exacts a costly toll upon the ability of courts to ascertain the truth in a criminal case…. [Supreme Court] cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury…. After all, it is the defendant, and not the constable, who stands trial.
This Court should adopt the same common-sense reasoning expressed in such statements by the Supreme Court of the United States and apply it here. Regrettably, however, the majority chooses to be more dogmatic and doctrinaire than the Supreme Court of the United States in protecting criminal defendants by excluding evidence uncovered through honest mistakes of officers acting in good faith reliance upon court orders. I recognize that it is within the power of the majority to give criminal defendants greater protections under our State Constitution than those given them by the Constitution of the United States or the decisions of the Supreme Court of the United States; I simply think the majority is wrong to do so in the context of this case.
In the context of cases such as this, the majority’s doctrinaire application of our exclusionary rule truly becomes a “mere technicality” applied with a vengeance to block enforcement of the criminal laws for no good reason. Application of the exclusionary rule here will not deter any future misconduct by anyone or lessen the likelihood of future infringements upon anyone’s constitutional rights. The only effect of the majority’s rejection of a good faith exception to the exclusionary rule in cases such as this is to punish the public by impeding the truth-finding function of its courts. This drastic choice by the majority does not lead to any corresponding societal or constitutional gain for anyone other than criminal defendants lucky enough to have officers make honest errors in their cases. This diminishes the integrity of the judicial branch of government.
As I believe the majority has today dramatically tilted the scales of justice in favor of criminal defendants for no good or beneficial reason whatsoever, I respectfully dissent.
LOUIS MEYER and JOHN WEBB, JJ., join in this dissenting opinion.
Link for signed law:
State v. Rogers overruling State v. Carter in 2026:
Opinion by Chief Justice Paul Newby (for himself and four Associate Justices).
For all these reasons, Carter is expressly overruled. Without Carter, our precedent only implies that an exclusionary rule arises from Article I, Section 20, though it has never been formally decided.
We are left to decide whether any exclusionary rule arising under Article I, Section 20 contains a good faith exception. The State asks us to adopt a good faith exception in line with the federal good faith exception. While “we interpret the North Carolina Constitution independently of the United States Supreme Court’s interpretation of the Federal Constitution,” we are persuaded by the reasoning articulated by the Supreme Court for adopting a federal good faith exception in Leon. After all, when “[c]onsidering the precise wording of Article I, Section 20, we find no support … that the ‘text’ itself calls for ‘broader’ protection than that of the Fourth Amendment.” Thus, we adopt the Supreme Court’s reasoning in Leon, to hold that there is a good faith exception to any exclusionary rule arising from Article I, Section 20 of our state constitution equivalent to the federal good faith exception to the exclusionary rule arising out of the Fourth Amendment.
Justice Earls dissent in State v. Rogers: is included in full so that no one can accuse this writer of cherry picking her opinion. Legal citations are omitted as int the previous opinions.
Justice ANITA EARLS dissenting.
The exclusionary rule embodies “a more majestic conception” of constitutional protections—one that “restrains the sovereign itself” and ensures that constitutional “prohibitions are observed in fact.” The principles State v. Carter embraced—judicial integrity, a constitutional right to a remedy, and a deterrence model focused on shaping institutional behavior—are no less vital now than they were in 1988 and in the decades since. This Court should stand by them. I would reaffirm Carter and its progeny and hold that Article I, Section 20 requires exclusion of unconstitutionally obtained evidence with no good faith exception. I respectfully dissent.
- Carter and North Carolina’s Exclusionary Rule
In basic terms, the state constitutional exclusionary rule prevents the state from using evidence it obtained unlawfully against those accused of a crime in a court of law. Nearly forty years ago, this Court in State v. Carter, rooted the state exclusionary rule in three complementary principles: deterring police misconduct, safeguarding judicial integrity, and ensuring that every right indeed has a remedy. A court, we said, cannot hand down the law while profiting from its breach. On that view, we declined to graft a good-faith exception onto the exclusionary rule. These fundamental principles still emanate from Article I, Section 20 and are grounds to maintain Carter’s vitality.
Start with the hallmark constitutional value of judicial integrity. Courts are not merely passive arbiters—they are co-equal branches of government bound by the same constitutional constraints that limit the executive and legislative branches. Justice Brandeis captured this principle powerfully:
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 imperiled 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.
Carter embraced this understanding: “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.” We recognized that courts cannot maintain their legitimacy while profiting from constitutional violations. As Justice Day wrote in Weeks v. United States:
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. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
Judicial integrity is not some abstract aspiration—it is fundamental to the separation of powers and the rule of law embedded in our constitutional structure. Article IV, Section 1 of our state’s constitution vests “[t]he judicial power of the State” in the courts. When courts admit evidence obtained through constitutional violations, they exercise judicial power in furtherance of executive branch lawlessness. This makes the judiciary complicit in constitutional violations, undermining the very separation of powers the constitution establishes.
Moreover, extensive evidence supports that judicial integrity matters to constitutional legitimacy. The North Carolina Code of Judicial Conduct’s first canon requires judges to “uphold the integrity … of the judiciary.” Recent cases from this Court emphasize this foundational principle.
Compellingly too, empirical evidence shows that the exclusionary rule serves judicial integrity while the good faith exception undermines it. One study measured public perceptions of judicial integrity and found that participants in the United States had 62.47% confidence in courts when the exclusionary rule applied compared to only 46.49% confidence when it did not apply. The study found that the good faith exception reduced public confidence by 7.97%. Thus it found empirical evidence of “a resounding endorsement of the exclusionary rule on the basis that it promotes judicial integrity. The exclusionary rule is effective in promoting judicial integrity, and it should be applied more broadly, not more narrowly.” Thus this underpinning of Carter’s reasoning continues to hold purchase—and a good faith exception only undermines these foundational values.
Carter also correctly linked the exclusionary rule to Article I, Section 18’s guarantee that “every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law.” This open courts provision traces to the Magna Carta—to King John’s pledge to his barons that, “To no one will we sell, to no one will we deny or delay right or justice.”
The right to a remedy is central to that design. As Sir Edmund Coke explained in the seventeenth century, open courts mean little if they do not redress wrongs. The word “injury” in Section 18, drawn from the common-law concept of injuria, includes the violation of legal rights—constitutional rights among them.
The violation of Section 20 through an unlawful search constitutes a legal injury that demands redress. As Carter recognized, alternative remedies like civil suits against officers are ineffective in practice: “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.’ ”
Carter catalogued the practical obstacles to civil remedies: “[T]he 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.”
Finally, Carter understood that deterrence operates institutionally, not merely individually. As the Court explained: “One of the great purposes of the exclusionary rule is to impose the template of the constitution on police training and practices.” The rule “is responsible for the systematic, in-depth training of police forces in the law of search and seizure.”
This Court concluded 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.” This systemic effect serves the constitutional purpose of constraining governmental power through institutional incentives for compliance.
A good faith exception undermines this systemic deterrence. If officers know that seeking judicial authorization—even with weak probable cause—insulates them from exclusion, the incentive shifts. Rather than carefully building probable cause to ensure constitutional compliance, officers can present marginal cases to magistrates, confident that their “good faith reliance” protects them from constitutional accountability.
This creates perverse incentives: Why meticulously document probable cause when thin affidavits + magistrate approval + good faith exception = admissible evidence? Why invest in thorough investigation when shortcuts produce the same result? Why train officers in constitutional nuances when “good faith” is enough?
The exception Carter declined, yet the majority now embraces, does not just fail to deter—it actively encourages constitutional shortcuts. This is not speculation—it is predictable human behavior responding to changed costs and benefits.
So notwithstanding the majority’s rewriting of our opinion in Carter, that case did explain why Section 20 of North Carolina’s Constitution demands exclusion of evidence gathered by violating its terms, and why those principles counsel against a good faith exception. And it did not stand alone: The majority now claims that Colson, Reams, Small, and Arrington only “implied” a state constitutional exclusionary rule without ever holding one exists. But this fundamentally mischaracterizes that precedent. In State v. Colson (1968), this Court held that “evidence obtained by unreasonable search and seizure is inadmissible,” citing both the Fourth Amendment and Article I, Section 15 (now Section 20) of the North Carolina Constitution. The Court explained that after Mapp, “the States are no longer free to adopt or reject at will the exclusionary rule as a means of enforcing the Fourth Amendment in state courts.” Significantly, the Court also noted that “the federal exclusionary rule enunciated in Weeks became statutory law in North Carolina long before Mapp by enactment”—referring to North Carolina’s 1937 statutory exclusion, adopted 24 years before federal mandate.
In State v. Reams (1970), this Court reiterated that “[e]vidence obtained by unreasonable search and seizure is inadmissible,” citing the Fourth and Fifth Amendments, Article I, Section 15, N.C.G.S. § 15-27, and Mapp. We further reiterated that position in State v. Small (1977). This is not doctrinal “implication by string citation”—this is application of established doctrine. From 1968 to 1984, this Court consistently cited both federal and state constitutions as requiring exclusion, applied exclusionary principles without questioning their existence, and analyzed only whether violations occurred and evidence needed to be suppressed. This is the doctrinal landscape Carter inherited in 1988: decades of cases treating state constitutional exclusion as established, with the new question being whether North Carolina would follow the federal good faith exception that United States v. Leon (1984), had just created four years earlier. Carter answered: No.
Now the majority takes this opportunity to expressly overrule Carter and those cases that followed it. The majority’s willingness to discard thirty-seven years of settled precedent undermines legal stability and predictability. Carter has been the foundation for countless judicial decisions, prosecutorial choices, and police training programs. Overruling it creates uncertainty about the scope of constitutional protections and signals that constitutional rights are subject to the shifting political winds of judicial appointments.
The majority offers weak justification for this dramatic departure from precedent. Carter was not clearly erroneous—it reflected a careful analysis of constitutional text, history, and policy considerations. The decision has proven workable in practice and has created the systemic benefits it predicted: better police training, more carefully scrutinized warrants, and improved constitutional compliance. The majority now does little more than “change the time-honored meaning of various portions of our constitution by interpreting the text with the singular aim of reaching a desired outcome.”
- The Majority’s “Assum[ing] Without Deciding” a Constitutional Exclusionary Rule Is Incoherent and Procedurally Unprecedented
As this detour through the fundamental principles underlying Carter and the exclusionary rule shows, it is analytically essential to understand the purpose and scope of a constitutional rule in order to know what exceptions might logically apply to that rule. The majority purports to “assume without deciding that an exclusionary rule arises from Article I, Section 20,” but then announces that any such rule is subject to “good faith exception” akin to that under federal law. This approach is logically impossible. One cannot rationally craft exceptions to a rule whose existence, scope, and purposes remain undefined. The exception is wholly derivative of the primary rule—it makes no sense to “assume” the rule while definitively declaring its limitations.
The federal good faith exception exists because the Supreme Court held the federal exclusionary rule is merely “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.” When an officer acts in good faith, “there is no police illegality and thus nothing to deter.” But this reasoning only works if deterrence is the rule’s sole purpose. If the exclusionary rule also serves judicial integrity—if courts have an independent constitutional obligation not to profit from constitutional violations—then the officer’s good faith is irrelevant. The court still becomes complicit by admitting the evidence. If the rule embodies a constitutional right to remedy under Article I, Section 18—if every violation must have consequences—then the officer’s subjective mental state cannot eliminate that constitutional injury. Thus Carter’s framework for our state’s exclusionary rule explains why a good faith exception is unsupported in our constitutional scheme.
Thus the majority has it backwards. One must first understand what the rule is and why it exists before determining when exceptions are appropriate. The majority’s approach is like a doctor prescribing medication before diagnosing the disease, or an architect adding windows to a building without first confirming it has walls.
The majority’s approach is also unprecedented in American jurisprudence. When the Supreme Court created the federal good faith exception in Leon, it first definitively confirmed that the exclusionary rule was a prudential, judicially created remedy, not constitutionally mandated. (“We have frequently questioned whether the exclusionary rule can have any deterrent effect when the offending officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.”). Only after establishing this foundation for why the rule exists in the first place did the Court consider any exceptions based on deterrence rationales.
The majority’s “assume without deciding but create exceptions anyway” approach is sui generis—and for good reason. It produces maximal judicial discretion with minimum accountability. Future cases can either rely on today’s “assumption” or reject it, depending on which outcome proves more convenient. Meanwhile, the majority has already limited whatever rule might exist through exceptions it adopted without ever defining the rule’s contours.
The majority correctly recognizes that “the General Assembly may not dictate this Court’s interpretation of the state constitution.” (citing Bayard v. Singleton, 1 N.C. (Mart.) 5, 6–7 (1787)). But just as the legislature cannot create exceptions to constitutional rules, neither can this Court create exceptions to a constitutional rule it refuses to even acknowledge exists.
Bayard established that “no act th[e General Assembly] could pass[ ] could by any means repeal or alter the constitution.” 1 N.C. at 6–7. The same logic applies to judicial erosion. If this Court can “assume” constitutional rules exist while immediately limiting them through exceptions—all while reserving the right to later declare the rules never existed—we have created a mechanism for constitutional amendment by judicial fiat.
This violates the fundamental principle that courts lack power to revise the constitution. As Alexander Hamilton explained in Federalist 78, the judiciary “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” The Federalist No. 78, at 464 (Alexander Hamilton) (Clint Rossiter ed., 1961). While the executive “holds the sword of the community” and the legislature “commands the purse,” the judiciary “has no influence over either the sword or the purse” and “can take no active resolution whatever.” Hamilton emphasized that courts possess “neither force nor will, but merely judgment.”
The majority’s approach exceeds this limited judicial power. By “assuming without deciding” that a constitutional right exists while immediately crafting exceptions to it—thereby weakening the right without definitively acknowledging its existence—the majority exercises will rather than judgment. It reshapes constitutional protections to achieve a preferred policy outcome (admitting unconstitutionally obtained evidence) while avoiding accountability for honestly declaring what the constitution requires.
True judicial judgment would require the Court to:
1. Examine Article I, Section 20’s text, history, and purposes;
2. Decide the scope of North Carolina’s exclusionary rule;
3. Determine whether that rule’s constitutional foundations permit exceptions; and
4. Apply that holding to the facts before us.
Instead, the majority substitutes its will for judgment by:
1. Refusing to examine whether the rule exists;
2. “Assuming” it does (or might), thereby failing to establish the rule’s purpose or foundations;
3. Immediately adopting exceptions; and
4. Reserving the right to later declare the rule never existed.
This is precisely the type of judicial overreach Hamilton warned against—courts using indirection and procedural gymnastics to achieve outcomes they lack authority to mandate directly. If this Court believes Article I, Section 20 contains no exclusionary rule, it should say so honestly. If it believes such a rule exists but permits exceptions, it should conduct proper constitutional analysis before crafting those exceptions. What it cannot do—consistent with its limited role as a court of judgment rather than will—is reshape constitutional protections through the backdoor of “assuming without deciding.”
The majority’s approach is particularly pernicious because it operates through indirection. Rather than honestly confronting whether Article I, Section 20 contains an exclusionary rule, the majority achieves the practical elimination of constitutional protection while claiming to exercise restraint. This is not judgment—it is will. It is not interpretation—it is amendment. And it is not restraint—it is the exercise of power courts do not possess.
As Hamilton warned, when courts exceed their proper role and substitute will for judgment, they threaten “the political rights of the Constitution” they are sworn to uphold. The Federalist No. 78, at 464 (Alexander Hamilton). This is a separation of powers violation dressed up as minimalism.
Moreover, the majority purports not to decide whether an exclusionary rule exists. But by adopting a good faith exception, the majority is deciding that Article I, Section 20’s protections for individuals are weaker and more limited than under Carter. That is a decision about the scope and content of the constitutional rule.
In any event, the majority cannot disclaim responsibility for the consequences of its holding by hiding behind what it ostensibly did not decide. Whether achieved directly or indirectly, the practical result is identical: evidence obtained through constitutional violations will be admissible under the Court’s decision today. The majority has made a constitutional decision while pretending it has not.
- Conclusion
The majority abandons decades of precedent that have served this state well. Its decision to expressly overrule Carter is deeply misguided and a betrayal of Carter’s fundamental principles: judicial integrity, deterrence from police misconduct, and ensuring that every right has a remedy. By adopting a good faith exception, it hollows out the exclusionary rule that Carter so steadily protected. That is a decision about the constitutional rule—achieved through indirection rather than honest analysis. As James Madison warned in Federalist 62, when constitutional protections yield to governmental convenience, we create “a state of things in which it may be said with some truth that laws are made for the few, not for the many.” The Federalist No. 62, at 379 (James Madison). The majority’s decision thus comes at the expense of constitutional liberty and confidence in our rule of law. I would affirm the Court of Appeals’ decision and reaffirm that State v. Carter remains the law of North Carolina. I respectfully dissent.
Justice ALLISON RIGGS joins in this dissenting opinion.
The author’s take on this
Justice Anita Earls thinks that the correct remedy in State v. Carter would have been to have a new trial so that the police could get a warrant signed by a judge, instead of the non-testimonial order signed by another judge, in order to prove once again the blood type of Carter, the rapist of a 78-year-old woman. Rational observers realize that Carter’s blood type would remain the same. Even a complete blood transfusion would not change that.
For the victim the decision in Carter means reliving the crime against her yet again. By the time the new trial was ordered, the victim would have been 80 or 81 years old. How knows how old she was at the new trial? Why would a wise person think this is a good idea?
Sincerely,
Paul Stam
