This month, North Carolina Law Review published an article cowritten by Patterson Harkavy partner Chris Brook on North Carolina’s state constitutional version of the Exclusionary Rule. The full article is here, and the abstract is below.
The North Carolina Supreme Court decision in State v. Carter stands apart from modern federal jurisprudence in holding that Article 1, section 20 of the North Carolina Constitution—North Carolina's analog to the Fourth Amendment—does not permit a good-faith exception to the exclusionary rule. In other words, evidence collected in violation of North Carolina's constitutional search-and-seizure protections is excluded from criminal proceedings, regardless of the good faith of the judicial officials and law enforcement officers involved in the case. In so holding, Carter exemplifies North Carolina's general approach when interpreting state constitutional provisions with federal analogs—the persuasive lockstep. Persuasive lockstepping considers federal jurisprudence highly persuasive but does not mechanically follow it, on occasion affording more robust constitutional protections pursuant to the state constitution. Controversial since its publication in 1988, criticism of Carter has increased over the past decade from legislative calls for its reversal to recent North Carolina Court of Appeals opinions unpersuasively contending that it has been superseded by statute. Though its constitutional force remains plain for the moment, these recent developments call into question the fate of Carter as well as the means of constitutional interpretation it represents.