Official Commentary

This commentary is based upon the commentary included in the January 1973 report of the Criminal Code Commission with its proposed code of pretrial procedure. The consultant-draftsmen of the Commission have revised the commentary to reflect changes that were made by the General Assembly in the course of passage.

The Commission’s commentary was drafted by the consultant-draftsmen in an effort to explain the rationale behind policy decisions, to enlighten practitioners as to the aims and intent of the Commission, and in some cases to draw attention to pertinent cases or factual situations which either made the inclusion of a provision desirable or necessary.

The Commission’s debates and debates in committees of the legislature and on the floor are the source of much of this commentary but neither the commission nor any legislative official has reviewed and approved this commentary on a line-by-line basis.

Editor’s Note.

Session Laws 1973, c. 1286, repealed many, but not all, of the sections of Chapter 15, Criminal Procedure, and a number of sections elsewhere in the General Statutes, and enacted in their place Chapter 15A, Criminal Procedure Act, effective July 1, 1975. Certain sections in Chapter 15 and in other chapters of the General Statutes were transferred and renumbered as sections in Chapter 15A. Where appropriate, the historical citations to the repealed sections have been added to corresponding sections in Chapter 15A.

The “Official Commentary” under Articles 1 to 34, 36 to 61 of this Chapter appears as originally drafted by the Criminal Code Commission and does not reflect amendments or changes in the law since the enactment of Session Laws 1973, c. 1286.

Where they appear in this Chapter, “Amended Comment” usually means that an error in the original comment has been corrected by a subsequent amendment, and “Supplemental Comment” pertains to a later development, such as an amendment to the statute text.

Many of the cases cited in the annotations under the various sections of this Chapter were decided under former similar provisions of Chapter 15 and earlier statutes.

Session Laws 1973, c. 1286, ss. 27, 28 and 31, provided:

“Sec. 27. All statutes which refer to sections repealed or amended by this act shall be deemed, insofar as possible, to refer to those provisions of this act which accomplish the same or an equivalent purpose.

“Sec. 28. None of the provisions of this act providing for the repeal of certain sections of the General Statutes shall constitute a reenactment of the common law.

“Sec. 31. This act becomes effective on July 1, 1975, and is applicable to all criminal proceedings begun on and after that date and each provision is applicable to criminal proceedings pending on that date to the extent practicable, except § 12 [§§ 15-176.3 through 15-176.5] of this act which becomes effective on July 1, 1974.”

Session Laws 1975, c. 573, amended Session Laws 1973, c. 1286, s. 31, so as to make the 1973 act effective Sept. 1, 1975, rather than July 1, 1975.

Session Laws 1975, c. 166, ss. 27 and 28, provided:

“Sec. 27. Chapter 15A of the General Statutes is hereby amended by striking out the words ‘district solicitor’ wherever the words appear throughout Chapter 15A, and inserting in lieu thereof the words ‘district attorney,’ and by striking out the word ‘solicitor,’ wherever the word appears throughout Chapter 15A and inserting in lieu thereof the word ‘prosecutor.’ The Michie Company, publishers of the General Statutes of North Carolina, is authorized and directed to make the changes directed above wherever they might appear appropriate in the text of Chapter 15A of the General Statutes.

“Sec. 28. This act shall become effective on the date that Chapter 1286 of the 1973 Session Laws becomes effective.”

Subchapter I. General.

Article 1. Definitions and General Provisions.

Official Commentary

This Article includes definitions of those words or terms which are used in more than one article of Chapter 15A and which have attached to them a significance beyond or different from that which one would ordinarily associate with the word or phrase defined.

§§ 15A-1 through 15A-100.

Reserved for future codification purposes.

Legal Periodicals.

For comment, “Out of Sight, Out of Mind: Indefinite Confinement and the Unconstitutional Treatment of North Carolinians with Mental Retardation,” see 35 Campbell L. Rev. 257 (2013).

For article, “An Equilibrium-Centric Interpretation of Restorative Justice and Examining Its Implementation Difficulties in America,” see 35 Campbell L. Rev. 287 (2013).

For article, “Is the White Collar Offender Privileged,” see 63 Duke L. J. 823 (2014).

§ 15A-101. Definitions.

Unless the context clearly requires otherwise, the following words have the listed meanings:

  1. Appeal. — When used in a general context, the term “appeal” also includes appellate review upon writ of certiorari.
  2. Attorney of Record. — An attorney who, under Article 4 of this Chapter, Entry and Withdrawal of Attorney in Criminal Case, has entered a criminal proceeding and has not withdrawn.
  3. Clerk. — Any clerk of superior court, acting clerk, or assistant or deputy clerk.
  4. District Court. — The District Court Division of the General Court of Justice.
  5. District Attorney. — The person elected and currently serving as district attorney in his prosecutorial district.
  6. Entry of Judgment. — Judgment is entered when sentence is pronounced. Prayer for judgment continued upon payment of costs, without more, does not constitute the entry of judgment.
  7. Judicial Official. — A magistrate, clerk, judge, or justice of the General Court of Justice.
  8. Officer. — Law-enforcement officer.
  9. Prosecutor. — The district attorney, any assistant district attorney or any other attorney designated by the district attorney to act for the State or on behalf of the district attorney.
  10. State. — The State of North Carolina, all land or water in respect to which the State of North Carolina has either exclusive or concurrent jurisdiction, and the airspace above that land or water. “Other state” means any state or territory of the United States, the District of Columbia or the Commonwealth of Puerto Rico.
  11. Superior Court. — The Superior Court Division of the General Court of Justice.
  12. Superior Court Judge. — A superior court judge who has jurisdiction pursuant to G.S. 7A-47.1 or G.S. 7A-48 in the district or set of districts as defined in G.S. 7A-41.1.
  13. Vehicle. — Aircraft, watercraft, or landcraft or other conveyance.

History. 1973, c. 1286, s. 1; 1975, c. 166, s. 2; 1977, c. 711, s. 19; 1987 (Reg. Sess., 1988), c. 1037, s. 52; 1997-456, s. 27.

Official Commentary

  1. Attorney of record is defined to draw attention to the new provisions of Article 4 of this Chapter, Entry and Withdrawal of Attorney in Criminal Case, and the obligations which that designation carries with it.
  2. Clerk, (3) district court, (6) officer, and (9) superior court are defined here because these “shorthand” terms are used throughout the Chapter for convenience and ease of expression and consistently are intended to carry the definition listed here.
  3. District solicitor and (7) solicitor are defined to distinguish the general but less controversial authority given the persons representing the State including assistant solicitors and even temporary “per diem” prosecutors acting for the district solicitor from the authority granted only to the elected district solicitor to whose personal attention certain critical decisions in prosecution of cases and selecting extraordinary investigative techniques are reserved. For example, only the elected district solicitor (and not an assistant solicitor) may make decisions in the area of granting immunity.
  4. Judicial official is defined to distinguish the broader group, i.e., judges, clerks and magistrates (without having to enumerate the categories on each occasion), from any one classification of persons exercising judicial functions, i.e., district court judge.
  5. State is patterned after the Illinois statute’s definition. (Ill. Rev. Stat. Ch. 38, § 2-21.)
  6. Superior court judge is intended to encompass all those superior court judges, regular or special, resident or presiding in a district, without having to recite the extended definition. Where a more restricted classification such as the senior resident superior court judge is intended, the less broad term is spelled out in the statute.
  7. Vehicle is intended to be more broad than the Chapter 20 of the General Statutes (Motor Vehicles Law) definition for purposes of the search sections. Because of the wide acceptance of the Chapter 20 definition of a vehicle, the more broad definition was inserted.

The Commission resisted the tendency to define words or terms unnecessarily. Only when the Commission intended a distinction which it found might not be recognized in the text of the statute or where a “shorthand” term was employed for ease of drafting and economy of words were definitions included here. Terms which have a special meaning in one Article only are defined in the text of the Article without needless repetition here.

Note on Official Commentary.

The “Official Commentary” under this Article appears as originally drafted by the Criminal Code Commission and does not reflect amendments or changes in the law since the enactment of Session Laws 1973, c. 1286.

Subdivisions (0.1) and (1) of this section were renumbered as subdivisions (1) and (1a), respectively, pursuant to Session Laws 1997-456, s. 27, which authorized the Revisor of Statutes to renumber or reletter sections and parts of sections having a number or letter designation that is incompatible with the General Assembly’s computer database.

Legal Periodicals.

For article on the North Carolina Speedy Trial Act, see 17 Wake Forest L. Rev. 173 (1981).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For survey of 1982 law on Criminal Procedure, see 61 N.C.L. Rev. 1090 (1983).

For article, “Court Culture and Criminal Law Reform,” see 69 Duke L.J. Online 84 (2020).

For article, “Cruel State Punishments,” see 98 N.C.L. Rev. 1201 (2020).

For article, “Paying for Pretrial Detention,” see 98 N.C.L. Rev. 1255 (2020).

For article, “Reforming Pretrial Decision-Making,” see 55 Wake Forest L. Rev. 857 (2020).

For article, “‘With a Little Help from my Friends:’ Counsel at Bail and Enhanced Pretrial Justice Becomes the New Reality,” see 55 Wake Forest L. Rev. 795 (2020).

For article, “Rights Should Not Vary Based on Offense Severity,” see 55 Wake Forest L. Rev. 985 (2020).

For article, “The Sixth and Eighth Amendment Nexus and the Future of Mandatory Sentences,” see 99 N.C.L. Rev. 1311 (2021).

For article, “The Sixth Amendment Sentencing Right and Its Remedy,” see 99 N.C.L. Rev. 1195 (2021).

For article, “Criminal Law x Addiction,” see 99 N.C.L. Rev. 1083 (2021).

For article, “Preventive Justice: How Algorithms, Parole Boards, and Limited Retributivism Could End Mass Incarceration,” see 56 Wake Forest L. Rev. 97 (2021).

CASE NOTES

There are no cases which have construed subdivision (4a), which governs “entry of judgment” in criminal cases. However, G.S. 1A-1, Rule 58 is sufficiently analogous to provide guidance in the area. State v. Boone, 310 N.C. 284, 311 S.E.2d 552, 1984 N.C. LEXIS 1566 (1984).

Subdivision (4a) Should Apply to Judgments and Orders. —

Although subdivision (4a) of this section does not specifically apply to orders, the Supreme Court thinks the same rule should apply to judgments and orders. State v. Boone, 310 N.C. 284, 311 S.E.2d 552, 1984 N.C. LEXIS 1566 (1984).

Many rights relating to the appeals process are “keyed” to the time of “entry of judgment,” and it is therefore imperative that the judge’s decisions become part of the court’s records and that all interested persons know the exact date on which judgment is entered. State v. Boone, 310 N.C. 284, 311 S.E.2d 552, 1984 N.C. LEXIS 1566 (1984).

Imposition of Judgment on Prayer for Judgment Necessary for Appeal. —

Appellate court was unable to address defendant’s assignments of error for armed robbery convictions because the trial court never imposed judgment on defendant’s prayer for judgment. State v. Escoto, 162 N.C. App. 419, 590 S.E.2d 898, 2004 N.C. App. LEXIS 181 (2004).

Clerk Properly Denied Request from Bond Company’s Attorney for an Order of Arrest. —

Where a bond company’s attorney made the request for an order for arrest of defendant who failed to appear at a scheduled court appearance, the county clerk complied with the statutory mandate in denying the request, because the attorney was not a law-enforcement officer. State v. Gonzalez-Fernandez, 170 N.C. App. 45, 612 S.E.2d 148, 2005 N.C. App. LEXIS 900 (2005).

True Prayer for Judgment Continued Did Not Operate as “Final Judgment.” —

Plaintiff was not required to register as a sex offender because the only conviction requiring registration was entered as a prayer for judgment continued, and a true prayer for judgment continued did not operate as a “final conviction” under G.S. 14-208.6(4) for the purposes of the Sex Offender and Public Protection Registration Program; the conditions imposed upon plaintiff did not appear to be punitive in nature. Walters v. Cooper, 226 N.C. App. 166, 739 S.E.2d 185, 2013 N.C. App. LEXIS 282, aff'd, 367 N.C. 117, 748 S.E.2d 144, 2013 N.C. LEXIS 1021 (2013).

§ 15A-101.1. Electronic technology in criminal process and procedure.

As used in this Chapter, in Chapter 7A of the General Statutes, in Chapter 15 of the General Statutes, and in all other provisions of the General Statutes that deal with criminal process or procedure:

  1. “Copy” means all identical versions of a document created or existing in paper form, including the original and all other identical versions of the document in paper form.
  2. “Document” means any pleading, criminal process, subpoena, complaint, motion, application, notice, affidavit, commission, waiver, consent, dismissal, order, judgment, or other writing intended in a criminal or contempt proceeding to authorize or require an action, to record a decision or to communicate or record information. A document may be created and exist in paper form or in electronic form or in both forms. Each document shall contain the legible, printed name of the person who signed the document.
  3. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, Internet, or similar capabilities.
  4. “Electronic monitoring” or “electronically monitor” or “satellite-based monitoring” means monitoring with an electronic monitoring device that is not removed from a person’s body, that is utilized by the supervising agency in conjunction with a Web-based computer system that actively monitors, identifies, tracks, and records a person’s location at least once every minute 24 hours a day, that has a battery life of at least 48 hours without being recharged, that timely records and reports or records the person’s presence near or within a crime scene or prohibited area or the person’s departure from a specified geographic location, and that has incorporated into the software the ability to automatically compare crime scene data with locations of all persons being electronically monitored so as to provide any correlation daily or in real time. In areas of the State where lack of cellular coverage requires the use of an alternative device, the supervising agency shall use an alternative device that works in concert with the software and records location and tracking data for later download and crime scene comparison.
  5. “Electronic Repository” means an automated electronic repository for criminal process created and maintained pursuant to G.S. 15A-301.1.
  6. “Electronic signature” means any electronic method of signing a document that meets each of the following requirements:
    1. Identifies and authenticates a particular person as the signer of the document, is unique to the person using it, is capable of certification, and is under the sole control of the person using it.
    2. Is attached to or logically associated with the document in such a manner that if the document is altered in any way without authorization of the signer, the signature is invalidated.
    3. Indicates that person’s intent to issue, enter or otherwise authenticate the document.
  7. “Entered” means signed and filed in the office of the clerk of superior court of the county in which the document is to be entered. A document may be entered in either paper form or electronic form.
  8. “Filing” or “filed” means:
    1. When the document is in paper form, delivering the original document to the office where the document is to be filed. Filing is complete when the original document is received in the office where the document is to be filed.
    2. When the document is in electronic form, creating and saving the document, or transmitting it, in such a way that it is unalterably retained in the electronic records of the office where the document is to be filed. A document is “unalterably retained” in an electronic record when it may not be edited or otherwise altered except by a person with authorization to do so. Filing is complete when the document has first been unalterably retained in the electronic records of the office where the document is to be filed.
  9. “Issued” applies to documents in either paper form or electronic form. A document that is first created in paper form is issued when it is signed. A document that is first created in electronic form is issued when it is signed, filed in the office of the clerk of superior court of the county for which it is to be issued, and retained in the Electronic Repository.
  10. “Original” means:
    1. A document first created and existing only in paper form, bearing the original signature of the person who signed it. The term also includes each copy in paper form that is printed through the facsimile transmission of the copy bearing the original signature of the person who signed it.
    2. A document existing in electronic form, including the electronic form of the document and any copy that is printed from the electronic form.
  11. “Signature” means any symbol, including, but not limited to, the name of an individual, which is executed by that individual, personally or through an authorized agent, with the intent to authenticate or to effect the issuance or entry of a document. The term includes an electronic signature. A document may be signed by the use of any manual, mechanical or electronic means that causes the individual’s signature to appear in or on the document. Any party challenging the validity of a signature shall have the burden of pleading, producing evidence, and proving the following:
    1. The signature was not the act of the person whose signature it appears to be.
    2. If the signature is an electronic signature, the requirements of subdivision (5) of this section have not been met.

History. 2002-64, s. 1; 2011-245, s. 2(a); 2012-194, s. 6; 2021-47, s. 10(b).

Cross References.

As to criminal process, generally, see G.S. 15A-301.

As to automated electronic repository for criminal process, see G.S. 15A-301.1.

Editor’s Note.

Session Laws 2002-64, s. 4, made this section effective January 1, 2003, and applicable to all acts done on and after that date.

Session Laws 2021-47, s. 10(m), made the deletion of the former second sentence of subdivision (2) of this section by Session Laws 2021-47, s. 10(b), effective June 18, 2021, and applicable to proceedings occurring on or after that date.

Effect of Amendments.

Session Laws 2011-245, s. 2(a), effective October 1, 2011, added subdivision (3a).

Session Laws 2012-194, s. 6, effective July 17, 2012, substituted “all persons being electronically monitored” for “all person’s being electronically monitored” near the end of the first sentence of subdivision (3a).

Session Laws 2021-47, s. 10(b), deleted the former second sentence of subdivision (2), which read “The term does not include search warrants.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring,” see 98 N.C.L. Rev. 717 (2020).

CASE NOTES

File Stamp. —

Because the trial court lacked jurisdiction over defendant, as the probation violation reports did not bear a file stamp, defendant’s period of probation was improperly extended by the trial court on September 20, 2010, after the original period expired on June 20, 2010, and the trial court did not have subject matter jurisdiction to revoke defendant’s probation on August 6, 2012. State v. High, 230 N.C. App. 330, 750 S.E.2d 9, 2013 N.C. App. LEXIS 1159 (2013).

Probation Violation Report. —

Violation report was filed too late to confer jurisdiction on the trial court to revoke defendant’s probation and activate the suspended sentence because the probationary period ended 18 months after probation began; the State’s supplement to the record was filed in order to confer jurisdiction on the trial court, and the State otherwise failed to establish that the trial court had jurisdiction to consider the revocation of defendant’s probation. State v. Peele, 246 N.C. App. 159, 783 S.E.2d 28, 2016 N.C. App. LEXIS 237 (2016).

Article 2. Jurisdiction. [Repealed]

Editor’s Note.

As to jurisdiction, see the Official Commentary under Article 3 of this Chapter.

§§ 15A-102 through 15A-130.

Reserved for future codification purposes.

Article 3. Venue.

Official Commentary

The Criminal Code Commission in its 1973 proposal has left an Article vacant for later dealing with the question of jurisdiction. For now, jurisdiction of courts is still primarily covered in Chapter 7A of the General Statutes. See, e.g., G.S. 7A-271 and G.S. 7A-273.

With respect to venue, this Article gathers together various provisions concerning venue. The Article contains or refers to most of the provisions on venue set out in proposed Chapter 15A, though it is not fully inclusive. For example, the special waiver of venue described in G.S. 15A-1011(c) is neither covered nor cross-referenced in this Article.

In general, venue in a criminal case remains in the county in which the crime was committed. A new provision is the placing of venue in the judicial district rather than the county for certain pretrial proceedings in cases in the original jurisdiction of the superior court.

Note on Official Commentary.

The “Official Commentary” under this Article appears as originally drafted by the Criminal Code Commission and does not reflect amendments or changes in the law since the enactment of Session Laws 1973, c. 1286.

§ 15A-131. Venue generally.

  1. Venue for pretrial and trial proceedings in district court of cases within the original jurisdiction of the district court lies in the county where the charged offense occurred.
  2. Except for the probable cause hearing, venue for pretrial proceedings in cases within the original jurisdiction of the superior court lies in the superior court district or set of districts as defined in G.S. 7A-41.1 embracing the county where the venue for trial proceedings lies.
  3. Except as otherwise provided in this subsection, venue for probable cause hearings and trial proceedings in cases within the original jurisdiction of the superior court lies in the county where the charged offense occurred. Except as otherwise provided in this subsection, if the alleged offense is committed within the corporate limits of a municipality which is the seat of superior court and is located in more than one county, venue lies in the superior court which sits within that municipality, but upon timely objection of the defendant or the district attorney in the county in which the alleged offense occurred the case must be transferred to the county in which the alleged offense occurred. However, for charges brought by municipal law enforcement officers only, if the alleged offense is committed within the corporate limits of a municipality that extends into four or more counties, each of which is in a separate superior court district, offenses committed within the corporate limits of the municipality but in a superior court district other than the one for which the municipality is the seat of superior court shall be disposed of in the municipality with no allowance for objections by the defendant or the district attorney.
  4. Venue for misdemeanors appealed for trial de novo in superior court lies in the county where the misdemeanor was first tried.
  5. An offense occurs in a county if any act or omission constituting part of the offense occurs within the territorial limits of the county.
  6. For the purposes of this Article, pretrial proceedings are proceedings occurring after the initial appearance before the magistrate and prior to arraignment.

History. 1973, c. 1286, s. 1; 1975, 2nd Sess., c. 983, s. 134; 1983, c. 727; 1987 (Reg. Sess., 1988), c. 1037, s. 53; 2009-398, s. 3.

Official Commentary

Subsection (a) states the rule of venue applicable in district court. This subsection is not intended to effect any change of existing law, but does by implication clarify that trial in one county rather than the other in district court is a matter of venue rather than jurisdiction.

Subsections (b), (c), and (d) state the rules of venue applicable in superior court or to cases in the original jurisdiction of the superior court. The purpose of placing pretrial venue of superior court cases in the judicial district is to facilitate discovery procedures and pretrial motions practice, including the motion to suppress. This will be particularly important in rural areas with infrequent sessions of court. The venue for the probable cause hearing remains in the county in which the crime occurred. The Commission thought that witnesses should not be ordinarily required to leave the county to testify, and this district court proceeding should be easier to schedule than motions and hearings in the superior court.

Cross References.

As to venue in trial of an accessory, see G.S. 14-7.

As to venue in cases of receiving stolen goods, see G.S. 14-71.

As to venue in cases of bigamy, see G.S. 14-183.

As to venue in case of bribery of players in athletic contests, see G.S. 14-378.

As to assault in one county, death in another, see G.S. 15-130.

As to assault in this State, death in another, see G.S. 15-131.

As to person in this State injuring one in another, see G.S. 15-132.

As to offenses that may be prosecuted in county where death occurs, see G.S. 15-133.

As to venue in cases involving determination of fatherhood, see G.S. 49-5.

As to offenses by officers of State institutions, see G.S. 143-116.

Editor’s Note.

Session Laws 2018-61, s. 5, provides: “No cause of action, including criminal actions, involving persons or property located in areas affected by the 2008 survey, pending on July 1, 2018, shall be abated, and such actions shall continue in the appropriate adjoining county. In no event shall a defense to a criminal act be maintained where the defense alleges a lack of jurisdiction due to any act or failure to act related to the adjustment of the boundary line by the 2008 survey regardless of when the criminal act is alleged to have been committed.”

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under former similar provisions of Chapter 15 and earlier statutes.

Venue is under the control of the legislature. State v. Woodard, 123 N.C. 710, 31 S.E. 219, 1898 N.C. LEXIS 128 (1898).

Right to be tried in county where charged crime allegedly occurred is statutorily based, and is not a right grounded in the federal or State Constitutions. State v. Hood, 294 N.C. 30, 239 S.E.2d 802, 1978 N.C. LEXIS 1184 (1978).

Court’s Jurisdiction Must Be Averred. —

In an indictment for murder, the offense must be charged in the body of the bill, to have been committed within the district over which the court has jurisdiction; it is not sufficient that the caption names the district. State v. Adams, 1 N.C. 21 (1789).

Improper venue will not deprive the court of jurisdiction. State v. Bolt, 81 N.C. App. 133, 344 S.E.2d 51, 1986 N.C. App. LEXIS 2277 (1986).

Want of averment of proper and perfect venue is not fatal to a bill of indictment. State v. Williamson, 81 N.C. 540, 1879 N.C. LEXIS 225 (1879).

Principles of venue, not jurisdiction, are involved when deciding the proper county in which to bring a criminal action. State v. Bolt, 81 N.C. App. 133, 344 S.E.2d 51, 1986 N.C. App. LEXIS 2277 (1986).

Crime of offering bribe to juror is committed in the county where the offer is communicated to the juror, and the proper venue is the county in which the juror was serving and in which the defendant’s offer was communicated to him by his wife, although defendant communicated with the juror’s kinsmen and wife in the county of their residence. State v. Noland, 204 N.C. 329, 168 S.E. 412, 1933 N.C. LEXIS 394 (1933).

As to findings of facts and the totality of the circumstances justifying trial judge’s transfer of venue in a sexual offense case involving children, see State v. Chandler, 324 N.C. 172, 376 S.E.2d 728, 1989 N.C. LEXIS 97 (1989).

§ 15A-132. Concurrent venue.

  1. If acts or omissions constituting part of the commission of the charged offense occurred in more than one county, each county has concurrent venue.
  2. If charged offenses which may be joined in a single criminal pleading under G.S. 15A-926 occurred in more than one county, each county has concurrent venue as to all charged offenses.
  3. When counties have concurrent venue, the first county in which a criminal process is issued in the case becomes the county with exclusive venue.

History. 1973, c. 1286, s. 1.

Official Commentary

This section on concurrent venue essentially states the prior practice. With its cross reference to the joinder provisions in G.S. 15A-926, it clarifies the rules of venue in multi-county situations. In this connection it is also important to note the rule as to when an offense occurs in a county set out in G.S. 15A-131(e). This subsection, in conjunction with G.S. 15A-134, should solve many of the problems treated in G.S. 15-130 through G.S. 15-133, but as a matter of caution the Commission recommends leaving these statutes unrepealed until after the jurisdictional provisions in Article 2 of Chapter 15A have been drafted.

CASE NOTES

Reason for grant of exclusive venue to the first court in which charges are filed is to prevent confusion and contentions between different courts, each seeking to exercise jurisdiction, and not to shield one accused of crime from prosecution when the court in which a complaint is first lodged loses its exclusive venue by dismissal of the case. State v. Paige, 316 N.C. 630, 343 S.E.2d 848, 1986 N.C. LEXIS 2400 (1986).

Loss of Exclusive Venue When Process Is Dismissed. —

A county which has acquired exclusive venue pursuant to subsection (a) or (b) of this section loses that exclusive venue when the criminal process upon which the exclusive venue is based is dismissed. State v. Paige, 316 N.C. 630, 343 S.E.2d 848, 1986 N.C. LEXIS 2400 (1986).

An indictment returned “no true bill” does not involve the issuance of criminal process, since it lacks the force and effect to instigate criminal action against an individual. State v. Vines, 317 N.C. 242, 345 S.E.2d 169, 1986 N.C. LEXIS 2786 (1986).

§ 15A-133. Waiver of venue; motion for change of venue; indictment may be returned in other county.

  1. A waiver of venue must be in writing and signed by the defendant and the prosecutor indicating the consent of all parties to the waiver. The waiver must specify what stages of the proceedings are affected by the waiver, and the county to which venue is changed. If the venue is to be laid in a county in another prosecutorial district, the consent in writing of the prosecutor in that district must be filed with the clerks of both counties.
  2. Repealed by Session Laws 1989, c. 688, s. 2.
  3. Motions for change of venue by the defendant are made under G.S. 15A-957. If venue is laid in a county in another prosecutorial district by order of the judge ruling on the motion, no consent of any prosecutor is required.
  4. If venue is changed to a county in another prosecutorial district, whether upon waiver of venue or by order of a judge, the prosecutor of the prosecutorial district where the case originated must prosecute the case unless the prosecutor of the district to which venue has been changed consents to conduct the prosecution.
  5. If venue is changed, whether upon waiver of venue or by order of a judge, the grand jury in the county to which venue has been transferred has the power to return an indictment in the case.  If an indictment has already been returned before the change of venue, no new indictment is necessary and prosecution may be had in the new county under the original indictment.

History. 1921, c. 12, ss. 1, 2; C.S., ss. 4606(a), 4606(b); 1973, c. 1286, s. 1; 1975, c. 166, s. 27; 1987 (Reg. Sess., 1988), c. 1037, s. 54; 1989, c. 688, s. 2.

Official Commentary

Subsection (a) sets out the procedure to be followed when there is a voluntary change of venue with the consent of all parties. The subsection makes clear that the waiver may be as to only a particular proceeding or stage of the proceedings rather than the more usual change of venue for all subsequent stages of a proceeding.

Subsection (b) ties in with the speedy trial provisions of Article 35.

Subsection (c) refers to the situation in which the defendant makes a motion for a change of venue because he cannot obtain a fair trial in the county in which venue is laid. If the judge orders the change of venue in accordance with G.S. 15A-957, the judge may shift venue to another county in the judicial district or to another county in an adjoining judicial district.

In the past it has not always been clear, upon a change of venue to another district, which solicitor was responsible for prosecution of the case. Subsection (d) states the Commission’s opinion that the solicitor who first had the case should remain primarily responsible for prosecuting it.

Subsection (e) is intended to carry forward the provisions of G.S. 15-135 and G.S. 15-136.

CASE NOTES

The trial court did not violate §§ 15A-957 and 15A-958 or this section by ordering a special venire from another county; as the defendant never moved for a change of venue, G.S. 15A-957 did not apply and there was no violation of this section where the trial court ruled on the issue of venue for jury selection. Furthermore, given the nature and circumstances of the alleged crimes against two law-enforcement officers and defendants’ acquiescence to the stipulation and proposal at the hearing, the trial court had the inherent authority to order the change of venue for the limited purpose of jury selection. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168, 2000 N.C. LEXIS 618 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379, 149 L. Ed. 2d 305, 2001 U.S. LEXIS 2353 (2001), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 305, 2001 U.S. LEXIS 2354 (2001), writ denied, 358 N.C. 157, 593 S.E.2d 84, 2004 N.C. LEXIS 158 (2004), cert. dismissed, 370 N.C. 375, 805 S.E.2d 698, 2017 N.C. LEXIS 900 (2017), cert. dismissed, 375 N.C. 500, 847 S.E.2d 415, 2020 N.C. LEXIS 891 (2020).

§ 15A-134. Offense occurring in part outside North Carolina.

If a charged offense occurred in part in North Carolina and in part outside North Carolina, a person charged with that offense may be tried in this State if he has not been placed in jeopardy for the identical offense in another state.

History. 1973, c. 1286, s. 1.

Official Commentary

This section is new. It states the constitutional rule. Cf. Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970).

Cross References.

As to assault in this State, death in another, see G.S. 15-131.

As to person in this State injuring one in another, see G.S. 15-132.

As to offenses that may be prosecuted in county where death occurs, see G.S. 15-133.

CASE NOTES

Jurisdiction Where Any Part of Crime Occurred. —

This section does not fix jurisdiction where the crime was completed, but where any part of the crime occurred. State v. First Resort Properties, 81 N.C. App. 499, 344 S.E.2d 354, 1986 N.C. App. LEXIS 2306 (1986).

Though defendant received money in Nevada and spent some of it in Arizona, under the “duty to account” doctrine, the embezzlement occurred when he failed to deliver the funds to his employer in North Carolina; therefore, the trial court had jurisdiction over the crime. State v. Tucker, 227 N.C. App. 627, 743 S.E.2d 55, 2013 N.C. App. LEXIS 607 (2013).

Instruction and special verdict as to North Carolina’s jurisdiction were not required when defendant was charged with child abduction based on acts occurring in North Carolina and Florida because (1) defendant did not contest facts relevant to North Carolina’s jurisdiction, and (2) at least one crime element occurred in North Carolina. State v. Lalinde, 231 N.C. App. 308, 750 S.E.2d 868, 2013 N.C. App. LEXIS 1228 (2013).

Fact that check was issued in North Carolina would support jurisdiction of worthless check charge under this section, even though an officer of defendant added the date and payee’s name in Florida, and it was physically transferred in Florida, subject to the condition that payee hold it until officer got back in touch with him. Moreover, officer’s call four days later from North Carolina authorizing payee to deposit the check also supported a conclusion that some part of the delivery occurred in North Carolina. State v. First Resort Properties, 81 N.C. App. 499, 344 S.E.2d 354, 1986 N.C. App. LEXIS 2306 (1986).

Proof of State Offense Required. —

In a prosecution for larceny and felonious possession of stolen goods, the bare fact that defendant possessed the car in the District of Columbia a few hours after its theft from an automobile dealership in North Carolina, without any supporting evidence was not sufficient to establish a prima facie showing of jurisdiction to warrant its submission to the jury. There was not a rational connection between the defendant’s possession of the stolen vehicle in Washington and the inference which the jury would be allowed to draw, that being the defendant possessed the car in North Carolina, to meet due process standards. State v. Williams, 74 N.C. App. 131, 327 S.E.2d 300, 1985 N.C. App. LEXIS 3383 (1985).

Instruction on Jurisdiction Not Required. —

As defendant’s challenge went to the State’s theory of jurisdiction, and the facts relevant to the application of that theory were uncontested, it was a legal question for the trial court to resolve; therefore, the court was not required to instruct the jury on the State’s burden of proving jurisdiction, or to allow the jury to return a special verdict. State v. Tucker, 227 N.C. App. 627, 743 S.E.2d 55, 2013 N.C. App. LEXIS 607 (2013).

§ 15A-135. Allegation of venue conclusive in absence of timely motion.

Allegations of venue in any criminal pleading become conclusive in the absence of a timely motion to dismiss for improper venue under G.S. 15A-952. A defendant may move to dismiss for improper venue upon trial de novo in superior court, provided he did not in the district court with benefit of counsel stipulate venue or expressly waive his right to contest venue.

History. 1973, c. 1286, s. 1.

Official Commentary

This section carries forward the provisions contained in G.S. 15-134 in modified form. The plea in abatement is replaced by the motion to dismiss for improper venue, and the requirement that the defendant allege the county in which venue should properly be laid is omitted.

The Commission’s proposal would have made allegation of venue conclusive in misdemeanor cases tried in the district court absent timely motion to contest venue in that court. The purpose was to prevent use of the venue objection in superior court upon trial de novo, and accounts in part for the wording in G.S. 15A-952(e) and 15A-953. This provision was in line with the thrust of G.S. 15-134, and was sufficiently strong to cause the Commission to recommend repeal of G.S. 15-129, which is being repealed upon the effective date of the new code. In the General Assembly, however, this section was rewritten to preserve the right to raise venue objections for the first time in superior court upon trial de novo; if the motion is not timely made there, of course, the allegation as to venue would become conclusive.

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 15-134.

Effect of Section. —

The allegation in a criminal pleading of the county where the charged offense occurred is not essentially one of venue. Under the common law a grand jury could only indict for crimes which allegedly occurred in its own county. The statement of the county where the offense took place established prima facie jurisdiction of the grand jury to return the indictment. Former G.S. 15-134 did not change this. It merely limited a defendant’s means of attacking the indictment on the ground that the offense occurred in a county other than that named in the indictment. Current G.S. 15A-135, however, only limits a defendant’s means of attacking venue. Since the statement in an indictment of the county where the crime allegedly occurred establishes prima facie jurisdiction, a challenge to this statement can be asserted at any time as stated in G.S. 15A-952(d). State v. Randolph, 312 N.C. 198, 321 S.E.2d 864, 1984 N.C. LEXIS 1793 (1984).

Purpose of Former G.S. 15-134. —

Former G.S. 15-134 was intended to provide relief from difficulties originating in doubt, entertained in good faith, as to the county in which the offense was committed, and would not be construed to modify the common law beyond the reasonable scope of its manifest purpose. State v. Mitchell, 202 N.C. 439, 163 S.E. 581, 1932 N.C. LEXIS 132 (1932).

The purpose of former G.S. 15-134 was to forestall the possibility that a criminal offender would escape punishment merely because of uncertainty as to the county in which the crime was committed. State v. Batdorf, 293 N.C. 486, 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).

The mischief intended to be remedied by former G.S. 15-134 was the difficulty encountered by the court in effecting the conviction of persons who had violated the criminal law of the state where the offense was committed near the boundaries of counties which were undetermined or unknown. And it often happened that, where the boundaries were established and known, it was uncertain from the proof whether the offense was committed on the one or the other side of the line, and, in consequence of the uncertainty and the doubt arising from it, offenders went “unwhipped of justice.” This was the evil intended to be remedied. State v. Overman, 269 N.C. 453, 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967), overruled, State v. Hickey, 317 N.C. 457, 346 S.E.2d 646, 1986 N.C. LEXIS 2434 (1986).

Demurrer to Evidence Improper Remedy. —

An objection to venue must be taken by plea in abatement (now motion to dismiss), and a demurrer to the evidence on this ground was properly overruled. State v. Burton, 138 N.C. 575, 50 S.E. 214, 1905 N.C. LEXIS 303 (1905).

Burden of Proof Is on State. —

This section, like former G.S. 15-134, is silent concerning the burden of proof with regard to proper venue. Hence, the common law controls and the burden of proof is upon the State to show that the offense occurred in the county named in the bill of indictment. State v. Batdorf, 293 N.C. 486, 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).

Former G.S. 15-134 did not state which party had the burden of proof if a plea in abatement was filed. At common law, the burden of proof was upon the State to prove that the offense occurred in the county named in the bill of indictment. State v. Overman, 269 N.C. 453, 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967), overruled, State v. Hickey, 317 N.C. 457, 346 S.E.2d 646, 1986 N.C. LEXIS 2434 (1986).

But Venue Need Not Be Shown beyond Reasonable Doubt. —

Venue need not be shown beyond a reasonable doubt, since it does not affect the question of a defendant’s guilt or the power of the court to try him. Proof of venue by a preponderance of the evidence is sufficient. State v. Batdorf, 293 N.C. 486, 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).

When Objection to Venue Waived. —

Objection to venue is waived unless objection is taken in apt time by plea in abatement (now motion to dismiss). State v. Lytle, 117 N.C. 799, 23 S.E. 476, 1895 N.C. LEXIS 156 (1895); State v. Woodard, 123 N.C. 710, 31 S.E. 219, 1898 N.C. LEXIS 128 (1898); State v. Holder, 133 N.C. 709, 45 S.E. 862, 1903 N.C. LEXIS 120 (1903).

Crime Deemed to Have Taken Place Where Alleged. —

A criminal offense is deemed to have taken place in the county in which the indictment charges it occurred, unless the defendant deny the same by the plea in abatement (now motion to dismiss). State v. Allen, 107 N.C. 805, 11 S.E. 1016, 1890 N.C. LEXIS 146 (1890); State v. Oliver, 186 N.C. 329, 119 S.E. 370, 1923 N.C. LEXIS 240 (1923).

Where there is no challenge to the indictment prior to a plea of guilty, the offense is deemed to have been committed in the county alleged in the indictment. State v. McKeon, 223 N.C. 404, 26 S.E.2d 914, 1943 N.C. LEXIS 286 (1943).

An offense is deemed to have been committed in the county in which it is laid in the indictment unless the defendant shall deny the same by plea in abatement (now motion to dismiss). State v. Dozier, 277 N.C. 615, 178 S.E.2d 412, 1971 N.C. LEXIS 1057 (1971).

Where a prisoner is charged with killing the deceased in the county in which the indictment is found, the State need not prove that the offense was committed in that county. Such allegation is to be taken as true unless the prisoner denies the same by plea in abatement (now motion to dismiss). State v. Outerbridge, 82 N.C. 617, 1880 N.C. LEXIS 316 (1880).

§ 15A-136. Venue for sexual offenses.

If a person is transported by any means, with the intent to violate any of the provisions of Article 7B of Chapter 14 (§ 14-27.20 et seq.) of the General Statutes and the intent is followed by actual violation thereof, the defendant may be tried in the county where transportation was offered, solicited, begun, continued or ended.

History. 1979, c. 682, s. 2; 2015-181, ss. 19, 47.

Editor’s Note.

This section was enacted by Session Laws 1979, c. 682, which provides in s. 13:

“Sec. 13. All laws and clauses of laws in conflict with this act are hereby repealed, provided however, nothing in this act shall be construed to repeal any portion of Article 26 of Chapter 14 which relates to offenses against public morality and decency.”

Session Laws 2015-181, s. 47, provides: “The Revisor of Statutes may correct statutory references, as required by this act, throughout the General Statutes. In making the changes authorized by this act, the Revisor may also adjust the order of lists of multiple statutes to maintain statutory order, correct terms, make conforming changes to catch lines and references to catch lines, and adjust subject and verb agreement and the placement of conjunctions.” Pursuant to this authority, “Article 7B” was substituted for “Article 7A” at the direction of the Revisor of Statutes.

Session Laws 2015-181, s. 48, provides: “This act becomes effective December 1, 2015, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2015-181, s. 19, effective December 1, 2015, substituted “§ 14-27.20 et seq.” for “§ 14-27.1 et seq.” For applicability, see editor’s note.

CASE NOTES

This section addresses a matter of venue, i.e., the location of the tribunal where a defendant may be compelled to stand trial. State v. Flowers, 318 N.C. 208, 347 S.E.2d 773, 1986 N.C. LEXIS 2567 (1986).

No provision of this section expands the power of grand juries to permit them to return indictments for criminal activity outside their territorial boundaries. State v. Flowers, 318 N.C. 208, 347 S.E.2d 773, 1986 N.C. LEXIS 2567 (1986).

§§ 15A-137 through 15A-140.

Reserved for future codification purposes.

Article 4. Entry and Withdrawal of Attorney in Criminal Case.

Official Commentary

Several provisions of Chapter 15A add requirements that notice be given a defendant’s attorney during pretrial stages of criminal proceedings. It became obvious from discussions within the Commission that in many instances the State will not know who is representing a defendant. The Commission therefore requested that a draft be prepared requiring counsel entering a case to file a notice of entry in the case.

Another problem reported by a number of members of the Commission was that caused by the defendant who said he would employ his own attorney but who shows up at a subsequent stage of the proceedings without counsel. Getting counsel, or continuing the case until he can retain counsel, causes a number of delays. The defendant in some instances has conferred with an attorney but has not yet been able to obtain the money for the fee and actually retain the attorney; in other cases, the defendant has never gotten around to employing a lawyer. In a few situations an attorney may have appeared for the defendant in a limited capacity, for example at a bail hearing or at preliminary hearing, but has declined to accept the case — either unconditionally or without the payment of additional remuneration. The Commission asked one of its committees to investigate this problem, and that committee studied a draft which would have placed fairly stringent conditions upon attorneys taking any part in a criminal case. The draft required filing with the clerk whenever entry in the case was made; it defined entry as acting on the defendant’s behalf in any manner or accepting any compensation, including part payment or installment payments; and it required leave of the court for an attorney to withdraw from the case.

After reviewing a toned-down version of the original draft, the Commission made additional modifications. It realized the problems which uncounseled defendants cause the courts, but it felt that defense lawyers earning their livelihood from the practice of criminal law should not be boxed in with restrictions which might drastically affect their relations with clients and their modes of arranging for payment of fees. The resulting proposal is contained in this Article, as further liberalized by the General Assembly in the course of passage. Though relatively mild, it should still lead to substantial improvement over the former situation.

Note on Official Commentary.

The “Official Commentary” under this Article appears as originally drafted by the Criminal Code Commission and does not reflect amendments or changes in the law since the enactment of Session Laws 1973, c. 1286.

§ 15A-141. When entry of attorney in criminal proceeding occurs.

An attorney enters a criminal proceeding when he:

  1. Files a written notice of entry with the clerk indicating an intent to represent a defendant in a specified criminal proceeding; or
  2. Appears in a criminal proceeding without limiting the extent of his representation; or
  3. Appears in a criminal proceeding for a limited purpose and indicates the extent of his representation by filing written notice thereof with the clerk; or
  4. Accepts assignment to represent an indigent defendant under the terms of Article 36 of Chapter 7A of the General Statutes; or
  5. Files a written waiver of arraignment, except that representation in this instance may not be limited pursuant to subdivision (3).

History. 1973, c. 1286, s. 1; 1975, 2nd Sess., c. 983, s. 135.

Official Commentary

This section lists the ways in which an attorney enters a criminal case. Two of them involve filing written documents with the clerk. Filing is not required in two instances, but they are situations in which the clerk would either be involved in the entry (assignment of counsel) or would be able to observe the entry (appearance in a proceeding). The fifth situation concerns the attorney who limits the scope of his representation; he may either state the limitation orally in open court at his initial appearance or file a written notice as to what the limits are. It seems implicit that the written notice would be filed prior to or at the time of the initial appearance, for otherwise there would be a general appearance under subdivision (2).

There is no restriction on the attorney’s right to enter the case for a limited purpose, if he files written notice of the limitation or orally notes it in open court, except as provided in subdivision (5).

CASE NOTES

Attorney Entered an Appearance. —

Actions of defendant, an attorney, in abandoning a client at a courthouse on the day of a hearing because the client failed to pay defendant’s fee were not legally justifiable as defendant entered an appearance in a criminal proceeding without limiting the representation under G.S. 15A-141(2), failed to comply with defendant’s duties to the client under G.S. 15A-143, did not have the trial court’s permission to withdraw under G.S. 15A-144, and substantially interfered with the court’s business under G.S. 5A-11(a)(7) by requiring the trial court, its staff, and its officers to expend significant time and effort in an attempt to get the client’s case resolved over a two-day period. State v. Key, 182 N.C. App. 624, 643 S.E.2d 444, 2007 N.C. App. LEXIS 800 (2007).

§ 15A-142. Requirement that clerk record entry.

The clerk must note each entry by an attorney in the records of the proceeding.

History. 1973, c. 1286, s. 1.

Official Commentary

As indicated in the commentary to the preceding section, the clerk should be able to determine when an entry is made under the terms of this Article in order to perform his duty of noting this in the records. In district court the only effective record of the proceedings is the case record, and entry should be made there. In superior court, if entry is made for the first time, entry would have to be noted in the minutes of the proceeding, but the clerk should also note entry in the case records.

It may be of interest to compare the provisions of Rule 303(a) of the Pennsylvania Rules of Criminal Procedure:

“(a) Counsel for defendant shall enter his appearance in writing with the clerk of courts promptly after being retained or appointed and serve a copy thereof on the attorney for the Commonwealth. If a firm name is entered, the name of an individual lawyer shall be designated as being responsible for the conduct of the case.

“Counsel shall not be permitted to represent a defendant following a preliminary hearing unless his appearance is entered.”

§ 15A-143. Attorney making general entry obligated to represent defendant at all subsequent stages.

An attorney who enters a criminal proceeding without limiting the extent of his representation pursuant to G.S. 15A-141(3) undertakes to represent the defendant for whom the entry is made at all subsequent stages of the case until entry of final judgment, at the trial stage. An attorney who appears for a limited purpose under the provisions of G.S. 15A-141(3) undertakes to represent the defendant only for that purpose and is deemed to have withdrawn from the proceedings, without the need for permission of the court, when that purpose is fulfilled.

History. 1973, c. 1286, s. 1; 1977, c. 1117.

Official Commentary

The purpose of this section is self-evident in the light of the general commentary for this Article. This section was modified after introduction to bind the lawyer’s freedom to withdraw only in the particular division of the court in which he is appearing. Also added after introduction was the clarifying sentence concerning automatic withdrawal in the case of a limited appearance.

If circumstances do arise which make it necessary or desirable for an attorney to withdraw from a case, there should be no difficulty in obtaining permission from the court. Compare Rule 303(b) of the Pennsylvania Rules of Criminal Procedure:

“(b) Counsel for a defendant may not withdraw his appearance except by leave of court. Such leave shall be granted only upon application made and served on the attorney for the Commonwealth and the client, unless the interests of justice otherwise require.”

CASE NOTES

Abandoning Client. —

Actions of defendant, an attorney, in abandoning a client at a courthouse on the day of a hearing because the client failed to pay defendant’s fee were not legally justifiable as defendant entered an appearance in a criminal proceeding without limiting the representation under G.S. 15A-141(2), failed to comply with defendant’s duties to the client under G.S. 15A-143, did not have the trial court’s permission to withdraw under G.S. 15A-144, and substantially interfered with the court’s business under G.S. 5A-11(a)(7) by requiring the trial court, its staff, and its officers to expend significant time and effort in an attempt to get the client’s case resolved over a two-day period. State v. Key, 182 N.C. App. 624, 643 S.E.2d 444, 2007 N.C. App. LEXIS 800 (2007).

Clear, cogent, and convincing evidence supported the Disciplinary Hearing Commission’s findings and conclusions that the attorney violated N.C. Rev. R. Prof. Conduct Rule 1.16, regarding the termination of representation, Rule 1.3, about neglecting client matters, and Rule 8.4, prejudicing the administration of justice, in violation of an earlier Consent Order of Discipline resulting in the attorney’s license suspension. The attorney’s conduct violated those rules because the attorney stopped representing the client when the client notified the attorney that she could not pay an additional sum to represent the client on probation violation matters, and the attorney did not obtain permission from the trial court to withdraw from representing her after the attorney had appeared on her behalf. N.C. State Bar v. Key, 187 N.C. App. 616, 654 S.E.2d 55, 2007 N.C. App. LEXIS 2576 (2007).

Willful refusal to appear in court on behalf of a client, in contravention of G.S. 15A-143, violates the Rule of Diligence to a client and amounts to conduct that has a reasonable likelihood of prejudicing the administration of justice, N.C. Rev. R. Prof. Conduct 8.4. N.C. State Bar v. Key, 189 N.C. App. 80, 658 S.E.2d 493, 2008 N.C. App. LEXIS 425 (2008).

§ 15A-144. Withdrawal of attorney with permission of court.

The court may allow an attorney to withdraw from a criminal proceeding upon a showing of good cause.

History. 1973, c. 1286, s. 1.

Official Commentary

The court in this instance would be the judge presiding over the court having jurisdiction of the case. The statute does not specifically direct it, but it is assumed the clerk would note withdrawals of attorneys in the records of the case.

Legal Periodicals.

For note discussing failure to communicate and effective assistance of counsel in light of State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981), see 13 N.C. Cent. L.J. 101 (1981).

CASE NOTES

Violation of Constitutional Right to Counsel Not Found. —

Where the defendant failed to show that he was prejudiced by the court’s denial of his counsel’s motion to withdraw, his Sixth Amendment guarantee of effective assistance of counsel was not violated. State v. Cole, 343 N.C. 399, 471 S.E.2d 362, 1996 N.C. LEXIS 335 (1996), cert. denied, 519 U.S. 1064, 117 S. Ct. 703, 136 L. Ed. 2d 624, 1997 U.S. LEXIS 199 (1997), writ denied, 358 N.C. 734, 601 S.E.2d 866, 2004 N.C. LEXIS 950 (2004).

The fact that defense counsel attempted to withdraw from the case as a result of defendant’s violent behavior did not deprive defendant of effective assistance of counsel, particularly as defendant would not show that he received anything less than professional representation. State v. Thomas, 350 N.C. 315, 514 S.E.2d 486, 1999 N.C. LEXIS 246, cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999).

Short-form indictment was not constitutionally defective simply because it did not allege any of the elements of first-degree murder that distinguished it from second-degree murder. State v. Nolen, 144 N.C. App. 172, 550 S.E.2d 783, 2001 N.C. App. LEXIS 447 (2001).

Trial court did not err in denying trial counsel’s request to withdraw, as defendant failed to prove ineffective assistance in that defendant had ample time to investigate, prepare, and present his defense and failed to show that he received ineffective assistance of counsel due to the denial of his motion for a continuance filed immediately prior to trial. State v. Warren, 244 N.C. App. 134, 780 S.E.2d 835, 2015 N.C. App. LEXIS 960 (2015).

Failure to Obtain Permission to Withdraw. —

Actions of defendant, an attorney, in abandoning a client at a courthouse on the day of a hearing because the client failed to pay defendant’s fee were not legally justifiable as defendant entered an appearance in a criminal proceeding without limiting the representation under G.S. 15A-141(2), failed to comply with defendant’s duties to the client under G.S. 15A-143, did not have the trial court’s permission to withdraw under G.S. 15A-144, and substantially interfered with the court’s business under G.S. 5A-11(a)(7) by requiring the trial court, its staff, and its officers to expend significant time and effort in an attempt to get the client’s case resolved over a two-day period. State v. Key, 182 N.C. App. 624, 643 S.E.2d 444, 2007 N.C. App. LEXIS 800 (2007).

Withdrawal Proper. —

Trial courts’ decision to accept defense counsel’s assertion that his withdrawal was mandatory in light of his professional considerations was not an abuse of discretion, as defendant demanded that counsel engage in unprofessional conduct. State v. Smith, 241 N.C. App. 619, 773 S.E.2d 114, 2015 N.C. App. LEXIS 510 (2015).

Article 5. Expunction of Records.

§ 15A-145. Expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor; expunction of certain other misdemeanors. [Effective until January 1, 2023]

  1. Whenever any person who has not previously been convicted of any felony, or misdemeanor other than a traffic violation, under the laws of the United States, the laws of this State or any other state, (i) pleads guilty to or is guilty of a misdemeanor other than a traffic violation, and the offense was committed before the person attained the age of 18 years, or (ii) pleads guilty to or is guilty of a misdemeanor possession of alcohol pursuant to G.S. 18B-302(b)(1), and the offense was committed before the person attained the age of 21 years, he may file a petition in the court of the county where he was convicted for expunction of the misdemeanor from his criminal record. The petition cannot be filed earlier than: (i) two years after the date of the conviction, or (ii) the completion of any period of probation, whichever occurs later, and the petition shall contain, but not be limited to, the following:
    1. An affidavit by the petitioner that he has been of good behavior for the two-year period since the date of conviction of the misdemeanor in question and has not been convicted of any felony, or misdemeanor other than a traffic violation, under the laws of the United States or the laws of this State or any other state.
    2. Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which he lives and that his character and reputation are good.
    3. A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.
    4. Repealed by Session Laws 2010-174, s. 2, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date.
    5. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.
    6. An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against him are outstanding.The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 10 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition.The judge to whom the petition is presented is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct during the two-year period that he deems desirable.
  2. Nothing in this section shall be interpreted to allow the expunction of any offense involving impaired driving as defined in G.S. 20-4.01(24a) or any offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register.
  3. If the court, after hearing, finds that the petitioner had remained of good behavior and been free of conviction of any felony or misdemeanor, other than a traffic violation, for two years from the date of conviction of the misdemeanor in question, the petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against him, and (i) petitioner was not 18 years old at the time of the offense in question, or (ii) petitioner was not 21 years old at the time of the offense of possession of alcohol pursuant to G.S. 18B-302(b)(1), it shall order that such person be restored, in the contemplation of the law, to the status he occupied before such arrest or indictment or information.
  4. No person as to whom such order has been entered shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest, or indictment, information, or trial, or response to any inquiry made of him for any purpose. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  5. The court shall also order that the misdemeanor conviction, or a civil revocation of a drivers license as the result of a criminal charge, be expunged from the records of the court. The court shall direct all law-enforcement agencies, the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the petitioner’s conviction or a civil revocation of a drivers license as the result of a criminal charge. This subsection does not apply to civil or criminal charges based upon the civil revocation, or to civil revocations under G.S. 20-16.2. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150. The clerk shall forward a certified copy of the order to the Division of Motor Vehicles for the expunction of a civil revocation provided the underlying criminal charge is also expunged. The civil revocation of a drivers license shall not be expunged prior to a final disposition of any pending civil or criminal charge based upon the civil revocation.
  6. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  7. Repealed by Session Laws 2012-191, s. 3, effective December 1, 2012.
  8. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

History. 1973, c. 47, s. 2; c. 748; 1975, c. 650, s. 5; 1977, c. 642, s. 1; c. 699, ss. 1, 2; 1979, c. 431, ss. 1, 2; 1985, c. 636, s. 1; 1999-406, s. 8; 2002-126, ss. 29A.5(a), (b); 2004-133, s. 1; 2005-276, s. 43.1(e); 2007-509, s. 1; 2008-187, s. 35; 2009-510, s. 4(a), (b); 2009-577, s. 10; 2010-174, ss. 2, 3; 2011-145, s. 19.1(h); 2012-191, s. 3; 2013-360, s. 18B.16(a); 2014-100, s. 17.1(o); 2015-150, s. 2; 2017-186, s. 2(qq); 2017-195, s. 1; 2021-115, s. 2.

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 15A-145.

Editor’s Note.

This Article is former Article 23 of Chapter 15, as recodified by Session Laws 1985, c. 636, s. 1. The historical citations to the sections in the former Article have been added to the corresponding sections in this Article as recodified.

An unofficial chart and summary of the provisions of the various expunction statutes in this Article can be found on the North Carolina General Assembly website: http://www.ncleg.net/gascripts/DocumentSites/browseDocSite .asp?nID=1&sFolderName=\Research%20Division\Resources

Session Laws 1999-406, s. 18, states that this act, which added clause (ii) to subsections (a) and (b) and made other conforming amendments in this section, does not obligate the General Assembly to appropriate additional funds, and that this act shall be implemented with funds available or appropriated to the Department of Transportation and the Administrative Office of the Courts.

Session Laws 2013-360, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2013.’ ”

Session Laws 2013-360, s. 38.5 is a severability clause.

Session Laws 2015-150, s. 6, made subsection (a1) of this section, as added by Session Laws 2015-150, s. 2, applicable to petitions filed and petitions pending on or after December 1, 2015.

Session Laws 2017-195, s. 2, made the amendment to subsections (a) and (b) of this section by Session Laws 2017-195, s. 1, effective December 1, 2017, and applicable to petitions filed on or after that date.

Session Laws 2021-115, s. 4, made the addition of “or any offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register” at the end of subsection (a1) of this section by Session Laws 2021-115, s. 2, effective December 1, 2021, and applicable to petitions filed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2007-509, s. 1, effective October 1, 2007, in subsection (c), in the first sentence, inserted “or a civil revocation of a drivers license as the result of a criminal charge,” inserted “including the Division of Motor Vehicles,” inserted “or a civil revocation of a drivers license as the result of a criminal charge” at the end, and made minor punctuation changes, and added the second, fourth, and fifth sentences.

Session Laws 2008-187, s. 35, effective August 7, 2008, added clause (i) and (ii) designators in the second sentence of the first paragraph of subsection (a), and made related changes.

Session Laws 2009-510, s. 4(a) and (b), effective October 1, 2010, rewrote subsections (c) and (d).

Session Laws 2009-577, s. 6, effective December 1, 2009, and applicable to petitions for expunctions filed on or after that date, rewrote the first sentence of subsection (a); substituted both uses of “offense” for “conviction” in the first sentence of subsection (b); and added subsection (d1).

Session Laws 2010-174, ss. 2 and 3, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date, deleted subdivision (a)(4), which read: “Affidavits of the clerk of superior court, chief of police, where appropriate, and sheriff of the county in which the petitioner was convicted and, if different, the county of which the petitioner is a resident, showing that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State at any time prior to the conviction for the misdemeanor in question or during the two-year period following that conviction”; added subdivision (a)(4a); deleted subdivision (d1)(4), which read: “Affidavits of the clerk of superior court, chief of police, where appropriate, and sheriff of the county in which the petitioner was convicted and, if different, the county of which the petitioner is a resident, showing that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State during the 10-year period preceding the filing of the petition”; added subdivision (d1)(4a); in the second and third paragraphs following subdivision (d1)(5), substituted “15-year period” for “10-year period”; and in the third paragraph following subdivision (d1)(5), substituted “15 years prior to the filing of the petition” for “10 years prior to the filing of the petition.”

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsection (c).

Session Laws 2012-191, s. 3, effective December 1, 2012, repealed subsection (d1), which read: “(d1) Notwithstanding subsection (a) of this section and any other provision of law, a person may file a petition in the court where the person was convicted for expunction of a misdemeanor conviction from the person’s criminal record if the person has no prior felony convictions and was convicted for misdemeanor larceny pursuant to G.S. 14-72(a) more than 15 years prior to the filing of the petition.” For applicability see Editor’s note.

Session Laws 2013-360, s. 18B.16(a), effective September 1, 2013, in subsection (e), substituted “one hundred seventy-five dollars ($175.00)” for “one hundred twenty-five dollars ($125.00)” in the first sentence, and in the second sentence, “are payable to the Administrative Office of the Courts” for “shall be deposited in the General Fund,” and added the third and fourth sentences. For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” throughout the section.

Session Laws 2015-150, s. 2, effective December 1, 2015, added subsection (a1). For applicability, see editor’s note.

Session Laws 2017-186, s. 2(qq), effective December 1, 2017, inserted “and Juvenile Justice” in the second sentence of subsection (c).

Session Laws 2017-195, s. 1, effective December 1, 2017, inserted “of the county” following “file a petition in the court” near the end of the first sentence in subsection (a); in subdivision (a)(4a) substituted “filed with the clerk of superior court.” for “forwarded” in the second sentence, and inserted “The clerk of superior court shall forward the application” at the beginning of the third sentence; inserted subsection (b1) designation, and therein added the last sentence. For applicability, see Editor’s note.

Session Laws 2021-115, s. 2, added “or any offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register” at the end of subsection (a1). For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the second sentence of subsection (c). For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Automatic (Expunctions) for the People: For a Court-Initiated Expunction Right in North Carolina for Charges Not Resulting in a Conviction,” see 96 N.C.L. Rev. 573 (2018).

OPINIONS OF ATTORNEY GENERAL

Construction. — This section and G.S. 15A-146 which prescribe procedures for expunction of criminal records, operate as exceptions to the general prohibition to the alteration of records. Thus, the statutes should be strictly construed. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (January 3, 1996).

Section Applicable to Offenses Which Occurred at Any Time and Were Committed by Individual under Age 18. — See opinion of Attorney General to Mr. Ray H. Garland, Deputy Director, State Bureau of Investigation, 43 N.C. Op. Att'y Gen. 1 (1973).

Consolidation of Several Misdemeanor Offenses for Trial. — Where a person under the age of 18 years, who has not previously or subsequently been convicted of any offense, is charged with several misdemeanor offenses, the charges are consolidated for trial and judgment, and the sentence imposed is within the statutory limit for conviction of a single offense, the court may order expungement of the record pursuant to this section. See opinion of Attorney General to Honorable Russell G. Walker, Jr., District Attorney, Nineteenth-B Prosecutorial District, 49 N.C. Op. Att'y Gen. 17 (1979).

Expungement of Multiple Offenses. — Where a person is charged or convicted of several misdemeanor offenses, and the charges are not consolidated for trial and judgment, nor arise from the same transaction or occurrence, the court may not order an expungement of the multiple offenses pursuant to this section and G.S. 15A-146. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (January 3, 1996).

Multiple Expunctions Not Authorized. — The precise language of this section clearly does not authorize multiple expunctions or one expunction of multiple offenses. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (January 3, 1996).

§ 15A-145. Expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor; expunction of certain other misdemeanors. [Effective January 1, 2023]

  1. Whenever any person who has not previously been convicted of any felony, or misdemeanor other than a traffic violation, under the laws of the United States, the laws of this State or any other state, (i) pleads guilty to or is guilty of a misdemeanor other than a traffic violation, and the offense was committed before the person attained the age of 18 years, or (ii) pleads guilty to or is guilty of a misdemeanor possession of alcohol pursuant to G.S. 18B-302(b)(1), and the offense was committed before the person attained the age of 21 years, he may file a petition in the court of the county where he was convicted for expunction of the misdemeanor from his criminal record. The petition cannot be filed earlier than: (i) two years after the date of the conviction, or (ii) the completion of any period of probation, whichever occurs later, and the petition shall contain, but not be limited to, the following:
    1. An affidavit by the petitioner that he has been of good behavior for the two-year period since the date of conviction of the misdemeanor in question and has not been convicted of any felony, or misdemeanor other than a traffic violation, under the laws of the United States or the laws of this State or any other state.
    2. Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which he lives and that his character and reputation are good.
    3. A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.
    4. Repealed by Session Laws 2010-174, s. 2, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date.
    5. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.
    6. An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against him are outstanding.
  2. Nothing in this section shall be interpreted to allow the expunction of any offense involving impaired driving as defined in G.S. 20-4.01(24a) or any offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register.
  3. If the court, after hearing, finds that the petitioner had remained of good behavior and been free of conviction of any felony or misdemeanor, other than a traffic violation, for two years from the date of conviction of the misdemeanor in question, the petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against him, and (i) petitioner was not 18 years old at the time of the offense in question, or (ii) petitioner was not 21 years old at the time of the offense of possession of alcohol pursuant to G.S. 18B-302(b)(1), it shall order that such person be restored, in the contemplation of the law, to the status he occupied before such arrest or indictment or information.
  4. No person as to whom such order has been entered shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest, or indictment, information, or trial, or response to any inquiry made of him for any purpose. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  5. The court shall also order that the misdemeanor conviction, or a civil revocation of a drivers license as the result of a criminal charge, be expunged from the records of the court. The court shall direct all law-enforcement agencies, the Department of Adult Correction, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the petitioner’s conviction or a civil revocation of a drivers license as the result of a criminal charge. This subsection does not apply to civil or criminal charges based upon the civil revocation, or to civil revocations under G.S. 20-16.2. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150. The clerk shall forward a certified copy of the order to the Division of Motor Vehicles for the expunction of a civil revocation provided the underlying criminal charge is also expunged. The civil revocation of a drivers license shall not be expunged prior to a final disposition of any pending civil or criminal charge based upon the civil revocation.
  6. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  7. Repealed by Session Laws 2012-191, s. 3, effective December 1, 2012.
  8. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 10 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition.

The judge to whom the petition is presented is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct during the two-year period that he deems desirable.

History. 1973, c. 47, s. 2; c. 748; 1975, c. 650, s. 5; 1977, c. 642, s. 1; c. 699, ss. 1, 2; 1979, c. 431, ss. 1, 2; 1985, c. 636, s. 1; 1999-406, s. 8; 2002-126, ss. 29A.5(a), (b); 2004-133, s. 1; 2005-276, s. 43.1(e); 2007-509, s. 1; 2008-187, s. 35; 2009-510, s. 4(a), (b); 2009-577, s. 10; 2010-174, ss. 2, 3; 2011-145, s. 19.1(h); 2012-191, s. 3; 2013-360, s. 18B.16(a); 2014-100, s. 17.1(o); 2015-150, s. 2; 2017-186, s. 2(qq); 2017-195, s. 1; 2021-115, s. 2; 2021-180, s. 19C.9(s).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 15A-145.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor’s Note.

This Article is former Article 23 of Chapter 15, as recodified by Session Laws 1985, c. 636, s. 1. The historical citations to the sections in the former Article have been added to the corresponding sections in this Article as recodified.

An unofficial chart and summary of the provisions of the various expunction statutes in this Article can be found on the North Carolina General Assembly website: http://www.ncleg.net/gascripts/DocumentSites/browseDocSite .asp?nID=1&sFolderName=\Research%20Division\Resources

Session Laws 1999-406, s. 18, states that this act, which added clause (ii) to subsections (a) and (b) and made other conforming amendments in this section, does not obligate the General Assembly to appropriate additional funds, and that this act shall be implemented with funds available or appropriated to the Department of Transportation and the Administrative Office of the Courts.

Session Laws 2013-360, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2013.’ ”

Session Laws 2013-360, s. 38.5 is a severability clause.

Session Laws 2015-150, s. 6, made subsection (a1) of this section, as added by Session Laws 2015-150, s. 2, applicable to petitions filed and petitions pending on or after December 1, 2015.

Session Laws 2017-195, s. 2, made the amendment to subsections (a) and (b) of this section by Session Laws 2017-195, s. 1, effective December 1, 2017, and applicable to petitions filed on or after that date.

Session Laws 2021-115, s. 4, made the addition of “or any offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register” at the end of subsection (a1) of this section by Session Laws 2021-115, s. 2, effective December 1, 2021, and applicable to petitions filed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2007-509, s. 1, effective October 1, 2007, in subsection (c), in the first sentence, inserted “or a civil revocation of a drivers license as the result of a criminal charge,” inserted “including the Division of Motor Vehicles,” inserted “or a civil revocation of a drivers license as the result of a criminal charge” at the end, and made minor punctuation changes, and added the second, fourth, and fifth sentences.

Session Laws 2008-187, s. 35, effective August 7, 2008, added clause (i) and (ii) designators in the second sentence of the first paragraph of subsection (a), and made related changes.

Session Laws 2009-510, s. 4(a) and (b), effective October 1, 2010, rewrote subsections (c) and (d).

Session Laws 2009-577, s. 6, effective December 1, 2009, and applicable to petitions for expunctions filed on or after that date, rewrote the first sentence of subsection (a); substituted both uses of “offense” for “conviction” in the first sentence of subsection (b); and added subsection (d1).

Session Laws 2010-174, ss. 2 and 3, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date, deleted subdivision (a)(4), which read: “Affidavits of the clerk of superior court, chief of police, where appropriate, and sheriff of the county in which the petitioner was convicted and, if different, the county of which the petitioner is a resident, showing that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State at any time prior to the conviction for the misdemeanor in question or during the two-year period following that conviction”; added subdivision (a)(4a); deleted subdivision (d1)(4), which read: “Affidavits of the clerk of superior court, chief of police, where appropriate, and sheriff of the county in which the petitioner was convicted and, if different, the county of which the petitioner is a resident, showing that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State during the 10-year period preceding the filing of the petition”; added subdivision (d1)(4a); in the second and third paragraphs following subdivision (d1)(5), substituted “15-year period” for “10-year period”; and in the third paragraph following subdivision (d1)(5), substituted “15 years prior to the filing of the petition” for “10 years prior to the filing of the petition.”

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsection (c).

Session Laws 2012-191, s. 3, effective December 1, 2012, repealed subsection (d1), which read: “(d1) Notwithstanding subsection (a) of this section and any other provision of law, a person may file a petition in the court where the person was convicted for expunction of a misdemeanor conviction from the person’s criminal record if the person has no prior felony convictions and was convicted for misdemeanor larceny pursuant to G.S. 14-72(a) more than 15 years prior to the filing of the petition.” For applicability see Editor’s note.

Session Laws 2013-360, s. 18B.16(a), effective September 1, 2013, in subsection (e), substituted “one hundred seventy-five dollars ($175.00)” for “one hundred twenty-five dollars ($125.00)” in the first sentence, and in the second sentence, “are payable to the Administrative Office of the Courts” for “shall be deposited in the General Fund,” and added the third and fourth sentences. For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” throughout the section.

Session Laws 2015-150, s. 2, effective December 1, 2015, added subsection (a1). For applicability, see editor’s note.

Session Laws 2017-186, s. 2(qq), effective December 1, 2017, inserted “and Juvenile Justice” in the second sentence of subsection (c).

Session Laws 2017-195, s. 1, effective December 1, 2017, inserted “of the county” following “file a petition in the court” near the end of the first sentence in subsection (a); in subdivision (a)(4a) substituted “filed with the clerk of superior court.” for “forwarded” in the second sentence, and inserted “The clerk of superior court shall forward the application” at the beginning of the third sentence; inserted subsection (b1) designation, and therein added the last sentence. For applicability, see Editor’s note.

Session Laws 2021-115, s. 2, added “or any offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register” at the end of subsection (a1). For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the second sentence of subsection (c). For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Automatic (Expunctions) for the People: For a Court-Initiated Expunction Right in North Carolina for Charges Not Resulting in a Conviction,” see 96 N.C.L. Rev. 573 (2018).

OPINIONS OF ATTORNEY GENERAL

Construction. — This section and G.S. 15A-146 which prescribe procedures for expunction of criminal records, operate as exceptions to the general prohibition to the alteration of records. Thus, the statutes should be strictly construed. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (January 3, 1996).

Section Applicable to Offenses Which Occurred at Any Time and Were Committed by Individual under Age 18. — See opinion of Attorney General to Mr. Ray H. Garland, Deputy Director, State Bureau of Investigation, 43 N.C. Op. Att'y Gen. 1 (1973).

Consolidation of Several Misdemeanor Offenses for Trial. — Where a person under the age of 18 years, who has not previously or subsequently been convicted of any offense, is charged with several misdemeanor offenses, the charges are consolidated for trial and judgment, and the sentence imposed is within the statutory limit for conviction of a single offense, the court may order expungement of the record pursuant to this section. See opinion of Attorney General to Honorable Russell G. Walker, Jr., District Attorney, Nineteenth-B Prosecutorial District, 49 N.C. Op. Att'y Gen. 17 (1979).

Expungement of Multiple Offenses. — Where a person is charged or convicted of several misdemeanor offenses, and the charges are not consolidated for trial and judgment, nor arise from the same transaction or occurrence, the court may not order an expungement of the multiple offenses pursuant to this section and G.S. 15A-146. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (January 3, 1996).

Multiple Expunctions Not Authorized. — The precise language of this section clearly does not authorize multiple expunctions or one expunction of multiple offenses. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (January 3, 1996).

§ 15A-145.1. Expunction of records for first offenders under the age of 18 at the time of conviction of certain gang offenses. [Effective until January 1, 2023]

  1. Whenever any person who has not previously been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state pleads guilty to or is guilty of (i) a Class H felony under Article 13A of Chapter 14 of the General Statutes or (ii) an enhanced offense under G.S. 14-50.22, or has been discharged and had the proceedings against the person dismissed pursuant to G.S. 14-50.29, and the offense was committed before the person attained the age of 18 years, the person may file a petition in the court of the county where the person was convicted for expunction of the offense from the person’s criminal record. Except as provided in G.S. 14-50.29 upon discharge and dismissal, the petition cannot be filed earlier than (i) two years after the date of the conviction or (ii) the completion of any period of probation, whichever occurs later. The petition shall contain, but not be limited to, the following:
    1. An affidavit by the petitioner that the petitioner has been of good behavior (i) during the period of probation since the decision to defer further proceedings on the offense in question pursuant to G.S. 14-50.29 or (ii) during the two-year period since the date of conviction of the offense in question, whichever applies, and has not been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state.
    2. Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives, and that the petitioner’s character and reputation are good.
    3. If the petition is filed subsequent to conviction of the offense in question, a statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.
    4. Repealed by Session Laws 2010-174, s. 4, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date.
    5. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.
    6. An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 10 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition.The judge to whom the petition is presented is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct during the probationary period or during the two-year period after conviction.
  2. If the court, after hearing, finds that (i) the petitioner was dismissed and the proceedings against the petitioner discharged pursuant to G.S. 14-50.29 and that the person had not yet attained 18 years of age at the time of the offense or (ii) the petitioner has remained of good behavior and been free of conviction of any felony or misdemeanor other than a traffic violation for two years from the date of conviction of the offense in question, the petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner, and the petitioner had not attained the age of 18 years at the time of the offense in question, it shall order that such person be restored, in the contemplation of the law, to the status occupied by the petitioner before such arrest or indictment or information, and that the record be expunged from the records of the court.
  3. No person as to whom such order has been entered shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of the person’s failure to recite or acknowledge such arrest, or indictment or information, or trial, or response to any inquiry made of the person for any purpose. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  4. The court shall also direct all law enforcement agencies, the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the petitioner’s criminal charge and any conviction resulting from the charge. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  5. This section is supplemental and in addition to existing law and shall not be construed so as to repeal any existing provision contained in the General Statutes of North Carolina.
  6. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

History. 2009-577, s. 1; 2010-174, s. 4; 2011-145, s. 19.1(h); 2013-360, s. 18B.16(b); 2014-100, s. 17.1(o); 2017-186, s. 2(rr); 2017-195, s. 1.

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 15A-145.1.

Editor’s Note.

Session Laws 2017-195, s. 2, made the amendment to subsections (a) and (b) of this section by Session Laws 2017-195, s. 1, effective December 1, 2017, and applicable to petitions filed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2010-174, s. 4, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date, deleted subdivision (a)(4), which read: “Affidavits of the clerk of superior court, chief of police, where appropriate, and sheriff of the county in which the petitioner was convicted and, if different, the county of which the petitioner is a resident, showing that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State (i) during the period of probation since the decision to defer further proceedings on the offense in question pursuant to G.S. 14-50.29 or (ii) at any time prior to the conviction for the offense in question or during the two-year period following that conviction, whichever applies”; added subdivision (a)(4a); and in subsection (b), in the first sentence, inserted “and that the record be expunged from the records of the court” and made a minor stylistic change, rewrote the third sentence, which formerly read: “The court shall also order that the said conviction be expunged from the records of the court and direct all law enforcement agencies bearing record of the same to expunge their records of the conviction as the result of a criminal charge”; added the last sentence; and deleted the former last two sentences, which read: “The clerk shall forward a certified copy of the order to the sheriff, chief of police, or other arresting agency. The sheriff, chief of police, or head of such other arresting agency shall then transmit the copy of the order with a form supplied by the State Bureau of Investigation to the State Bureau of Investigation, and the State Bureau of Investigation shall forward the order to the Federal Bureau of Investigation.”

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsection (b).

Session Laws 2013-360, s. 18B.16(b), effective September 1, 2013, added subsection (d). For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” throughout the section.

Session Laws 2017-186, s. 2(rr), effective December 1, 2017, inserted “and Juvenile Justice” in subsection (b2).

Session Laws 2017-195, s. 1, effective December 1, 2017, inserted “of the county” following “file a petition in the court” near the end of the first sentence in subsection (a); in subdivision (a)(4a) substituted “filed with the clerk of superior court.” for “forwarded” in the second sentence, and inserted “The clerk of superior court shall forward the application” at the beginning of the third sentence; inserted the subsection (b1) and (b2) designators; and added the last sentence in subsection (b1). For applicability, see Editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the first sentence of subsection (b2). For effective date and applicability, see editor's note.

§ 15A-145.1. Expunction of records for first offenders under the age of 18 at the time of conviction of certain gang offenses. [Effective January 1, 2023]

  1. Whenever any person who has not previously been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state pleads guilty to or is guilty of (i) a Class H felony under Article 13A of Chapter 14 of the General Statutes or (ii) an enhanced offense under G.S. 14-50.22, or has been discharged and had the proceedings against the person dismissed pursuant to G.S. 14-50.29, and the offense was committed before the person attained the age of 18 years, the person may file a petition in the court of the county where the person was convicted for expunction of the offense from the person’s criminal record. Except as provided in G.S. 14-50.29 upon discharge and dismissal, the petition cannot be filed earlier than (i) two years after the date of the conviction or (ii) the completion of any period of probation, whichever occurs later. The petition shall contain, but not be limited to, the following:
    1. An affidavit by the petitioner that the petitioner has been of good behavior (i) during the period of probation since the decision to defer further proceedings on the offense in question pursuant to G.S. 14-50.29 or (ii) during the two-year period since the date of conviction of the offense in question, whichever applies, and has not been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state.
    2. Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives, and that the petitioner’s character and reputation are good.
    3. If the petition is filed subsequent to conviction of the offense in question, a statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.
    4. Repealed by Session Laws 2010-174, s. 4, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date.
    5. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.
    6. An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.
  2. If the court, after hearing, finds that (i) the petitioner was dismissed and the proceedings against the petitioner discharged pursuant to G.S. 14-50.29 and that the person had not yet attained 18 years of age at the time of the offense or (ii) the petitioner has remained of good behavior and been free of conviction of any felony or misdemeanor other than a traffic violation for two years from the date of conviction of the offense in question, the petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner, and the petitioner had not attained the age of 18 years at the time of the offense in question, it shall order that such person be restored, in the contemplation of the law, to the status occupied by the petitioner before such arrest or indictment or information, and that the record be expunged from the records of the court.
  3. No person as to whom such order has been entered shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of the person’s failure to recite or acknowledge such arrest, or indictment or information, or trial, or response to any inquiry made of the person for any purpose. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  4. The court shall also direct all law enforcement agencies, the Department of Adult Correction, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the petitioner’s criminal charge and any conviction resulting from the charge. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  5. This section is supplemental and in addition to existing law and shall not be construed so as to repeal any existing provision contained in the General Statutes of North Carolina.
  6. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 10 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition.

The judge to whom the petition is presented is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct during the probationary period or during the two-year period after conviction.

History. 2009-577, s. 1; 2010-174, s. 4; 2011-145, s. 19.1(h); 2013-360, s. 18B.16(b); 2014-100, s. 17.1(o); 2017-186, s. 2(rr); 2017-195, s. 1; 2021-180, s. 19C.9(s).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 15A-145.1.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor’s Note.

Session Laws 2017-195, s. 2, made the amendment to subsections (a) and (b) of this section by Session Laws 2017-195, s. 1, effective December 1, 2017, and applicable to petitions filed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2010-174, s. 4, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date, deleted subdivision (a)(4), which read: “Affidavits of the clerk of superior court, chief of police, where appropriate, and sheriff of the county in which the petitioner was convicted and, if different, the county of which the petitioner is a resident, showing that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State (i) during the period of probation since the decision to defer further proceedings on the offense in question pursuant to G.S. 14-50.29 or (ii) at any time prior to the conviction for the offense in question or during the two-year period following that conviction, whichever applies”; added subdivision (a)(4a); and in subsection (b), in the first sentence, inserted “and that the record be expunged from the records of the court” and made a minor stylistic change, rewrote the third sentence, which formerly read: “The court shall also order that the said conviction be expunged from the records of the court and direct all law enforcement agencies bearing record of the same to expunge their records of the conviction as the result of a criminal charge”; added the last sentence; and deleted the former last two sentences, which read: “The clerk shall forward a certified copy of the order to the sheriff, chief of police, or other arresting agency. The sheriff, chief of police, or head of such other arresting agency shall then transmit the copy of the order with a form supplied by the State Bureau of Investigation to the State Bureau of Investigation, and the State Bureau of Investigation shall forward the order to the Federal Bureau of Investigation.”

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsection (b).

Session Laws 2013-360, s. 18B.16(b), effective September 1, 2013, added subsection (d). For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” throughout the section.

Session Laws 2017-186, s. 2(rr), effective December 1, 2017, inserted “and Juvenile Justice” in subsection (b2).

Session Laws 2017-195, s. 1, effective December 1, 2017, inserted “of the county” following “file a petition in the court” near the end of the first sentence in subsection (a); in subdivision (a)(4a) substituted “filed with the clerk of superior court.” for “forwarded” in the second sentence, and inserted “The clerk of superior court shall forward the application” at the beginning of the third sentence; inserted the subsection (b1) and (b2) designators; and added the last sentence in subsection (b1). For applicability, see Editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the first sentence of subsection (b2). For effective date and applicability, see editor's note.

§ 15A-145.2. Expunction of records for first offenders not over 21 years of age at the time of the offense of certain drug offenses. [Effective until January 1, 2023]

  1. Whenever a person is discharged, and the proceedings against the person dismissed, pursuant to G.S. 90-96(a) or (a1), and the person was not over 21 years of age at the time of the offense, the person may apply to the court of the county where charged for an order to expunge from all official records, other than the confidential files retained under G.S. 15A-151, all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty, and dismissal and discharge pursuant to this section. The applicant shall attach to the petition the following:
    1. An affidavit by the petitioner that he or she has been of good behavior during the period of probation since the decision to defer further proceedings on the offense in question and has not been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state;
    2. Verified affidavits by two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which he or she lives, and that the petitioner’s character and reputation are good;
    3. Repealed by Session Laws 2010-174, s. 5, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date.
    4. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.The judge to whom the petition is presented is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct during the probationary period deemed desirable.If the court determines, after hearing, that such person was discharged and the proceedings against him or her dismissed and that the person was not over 21 years of age at the time of the offense, it shall enter such order. The effect of such order shall be to restore such person in the contemplation of the law to the status the person occupied before such arrest or indictment or information.
  2. No person as to whom such order was entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or trial in response to any inquiry made of him or her for any purpose. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  3. The court shall also order that all records of the proceeding be expunged from the records of the court and direct all law enforcement agencies, the Division of Adult Correction and Juvenile Justice, the Division of Motor Vehicles, and any other State and local government agencies identified by the petitioner as bearing records of the same to expunge their records of the proceeding. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  4. Whenever any person is charged with a misdemeanor under Article 5 of Chapter 90 of the General Statutes by possessing a controlled substance included within Schedules I through VI of Article 5 of Chapter 90 of the General Statutes or a felony under G.S. 90-95(a)(3), upon dismissal by the State of the charges against the person, upon entry of a nolle prosequi, or upon a finding of not guilty or other adjudication of innocence, such person may apply to the court for an order to expunge from all official records all recordation relating to his or her arrest, indictment or information, or trial. If the court determines, after hearing, that such person was not over 21 years of age at the time the offense for which the person was charged occurred, it shall enter such order. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or trial in response to any inquiry made of him or her for any purpose.
  5. Whenever any person who has not previously been convicted of (i) any felony offense under any state or federal laws; (ii) any offense under Chapter 90 of the General Statutes; or (iii) an offense under any statute of the United States or any state relating to controlled substances included in any schedule of Chapter 90 of the General Statutes or to that paraphernalia included in Article 5B of Chapter 90 of the General Statutes, pleads guilty to or has been found guilty of a misdemeanor under Article 5 of Chapter 90 of the General Statutes by possessing a controlled substance included within Schedules I through VI of Chapter 90, or by possessing drug paraphernalia as prohibited by G.S. 90-113.22 or pleads guilty to or has been found guilty of a felony under G.S. 90-95(a)(3), the court may, upon application of the person not sooner than 12 months after conviction, order cancellation of the judgment of conviction and expunction of the records of the person’s arrest, indictment or information, trial, and conviction. A conviction in which the judgment of conviction has been canceled and the records expunged pursuant to this subsection shall not be thereafter deemed a conviction for purposes of this subsection or for purposes of disqualifications or liabilities imposed by law upon conviction of a crime, except as provided in G.S. 15A-151.5. Cancellation and expunction under this subsection may occur only once with respect to any person. Disposition of a case under this subsection at the district court division of the General Court of Justice shall be final for the purpose of appeal.The granting of an application filed under this subsection shall cause the issue of an order to expunge from all official records, other than the confidential files retained under G.S. 15A-151, all recordation relating to the petitioner’s arrest, indictment or information, trial, finding of guilty, judgment of conviction, cancellation of the judgment, and expunction of records pursuant to this subsection.The judge to whom the petition is presented is authorized to call upon a probation officer for additional investigation or verification of the petitioner’s conduct since conviction. If the court determines that the petitioner was convicted of (i) a misdemeanor under Article 5 of Chapter 90 of the General Statutes for possessing a controlled substance included within Schedules I through VI of Article 5 of Chapter 90 of the General Statutes or for possessing drug paraphernalia as prohibited in G.S. 90-113.22 or (ii) a felony under G.S. 90-95(a)(3), that the petitioner has no disqualifying previous convictions as set forth in this subsection, that the petitioner was not over 21 years of age at the time of the offense, that the petitioner has been of good behavior since his or her conviction, that the petitioner has successfully completed a drug education program approved for this purpose by the Department of Health and Human Services, and that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State at any time prior to or since the conviction for the offense in question, it shall enter an order of expunction of the petitioner’s court record. The effect of such order shall be to restore the petitioner in the contemplation of the law to the status the petitioner occupied before arrest or indictment or information or conviction. No person as to whom such order was entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or conviction, or trial in response to any inquiry made of him or her for any purpose. The judge may waive the condition that the petitioner attend the drug education school if the judge makes a specific finding that there was no drug education school within a reasonable distance of the defendant’s residence or that there were specific extenuating circumstances which made it likely that the petitioner would not benefit from the program of instruction.The court shall also order all law enforcement agencies, the Department of Public Safety, the Division of Motor Vehicles, and any other State or local agencies identified by the petitioner as bearing records of the conviction and records relating thereto to expunge their records of the conviction. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  6. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

History. 2009-577, s. 2; 2010-174, s. 5; 2011-145, s. 19.1(h); 2011-192, s. 5(b); 2011-412, s. 2.6(a); 2013-360, s. 18B.16(c); 2014-100, s. 17.1(o); 2017-186, s. 2(ss); 2017-195, s. 1.

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 14A-145.2.

Editor’s Note.

Session Laws 2011-192, s. 5(b), which, in the first sentence of subsection (b), substituted “Schedules I through VI” for “Schedules II through VI” and deleted “by possessing less than one gram of cocaine” following “ G.S. 90-95(a)(3),” and, in subsection (c), in the first paragraph, rewrote the first sentence, and in the third paragraph, in the second sentence, substituted “Schedules I through VI” for “Schedules II through VI,” deleted “for possession of less than one gram of cocaine” following “ G.S. 90-95(a)(3),” and inserted “that the petitioner has no disqualifying previous convictions as set forth in this subsection,” was applicable to persons entering a plea or who are found guilty of an offense on or after January 1, 2012.

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011.’ ”

Session Laws 2011-192, s. 10, provides in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-412, s. 2.6(a), which, in the first paragraph of subsection (c), in the first sentence, substituted “a misdemeanor under Article 5 of Chapter 90 of the General Statutes” for “(i) a misdemeanor under this Article” and substituted “or pleads guilty to or has been found guilty of ” for “or (ii),” was applicable to persons entering a plea or who are found guilty of an offense on or after January 1, 2012.

Session Laws 2017-195, s. 2, made the amendment to subsections (a) and (c) of this section by Session Laws 2017-195, s. 1, effective December 1, 2017, and applicable to petitions filed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(oo), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2010-174, s. 5, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date, rewrote subsections (a) through (c).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction” for “Department of Correction” in subsections (a) and (c).

Session Laws 2013-360, s. 18B.16(c), effective September 1, 2013, in subsection (d), substituted “one hundred seventy-five dollars ($175.00)” for “sixty-five dollars ($65.00)” in the first sentence, and in the second sentence, “are payable to the Administrative Office of the Courts” for “shall be deposited in the General Fund,” and added the third and fourth sentences. For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” throughout the section.

Session Laws 2017-186, s. 2(ss), effective December 1, 2017, inserted “and Juvenile Justice” in subsection (a2).

Session Laws 2017-195, s. 1, effective December 1, 2017, in subsection (a) added “of the county where charged” in the first sentence, substituted “petition” for “application” in the second sentence; in subdivision (a)(3a) substituted “filed with the clerk of superior court. The clerk of superior court shall forward the application” for “forwarded”; inserted the subsection (a1) and (a2) designations; added the last sentence in subsection (a1); in subsection (c) substituted “except as provided in G.S. 15A-151.5” for “including the additional penalties imposed for second or subsequent convictions of Article 5 of Chapter 90 of the General Statutes” at the end of the second sentence; and substituted “Department of Public Safety” for “Department of Correction” in the fourth paragraph. For applicability, see Editor’s note.

Session Laws 2021-180, s. 19C.9(oo), substituted “the Department of Adult Correction,” for “the Division of Adult Correction and Juvenile Justice,” in the first sentence of subsection (a2); and substituted “the Department of Adult Correction,” for “the Department of Public Safety,” in the last undesignated paragraph of subsection (c). For effective date and applicability, see editor's note.

Cross References.

As to photo ID requirement for Schedule II controlled substances, see G.S. 90-106.1.

§ 15A-145.2. Expunction of records for first offenders not over 21 years of age at the time of the offense of certain drug offenses. [Effective January 1, 2023]

  1. Whenever a person is discharged, and the proceedings against the person dismissed, pursuant to G.S. 90-96(a) or (a1), and the person was not over 21 years of age at the time of the offense, the person may apply to the court of the county where charged for an order to expunge from all official records, other than the confidential files retained under G.S. 15A-151, all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty, and dismissal and discharge pursuant to this section. The applicant shall attach to the petition the following:
    1. An affidavit by the petitioner that he or she has been of good behavior during the period of probation since the decision to defer further proceedings on the offense in question and has not been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state;
    2. Verified affidavits by two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which he or she lives, and that the petitioner’s character and reputation are good;
    3. Repealed by Session Laws 2010-174, s. 5, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date.
    4. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.
  2. No person as to whom such order was entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or trial in response to any inquiry made of him or her for any purpose. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  3. The court shall also order that all records of the proceeding be expunged from the records of the court and direct all law enforcement agencies, the Department of Adult Correction, the Division of Motor Vehicles, and any other State and local government agencies identified by the petitioner as bearing records of the same to expunge their records of the proceeding. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  4. Whenever any person is charged with a misdemeanor under Article 5 of Chapter 90 of the General Statutes by possessing a controlled substance included within Schedules I through VI of Article 5 of Chapter 90 of the General Statutes or a felony under G.S. 90-95(a)(3), upon dismissal by the State of the charges against the person, upon entry of a nolle prosequi, or upon a finding of not guilty or other adjudication of innocence, such person may apply to the court for an order to expunge from all official records all recordation relating to his or her arrest, indictment or information, or trial. If the court determines, after hearing, that such person was not over 21 years of age at the time the offense for which the person was charged occurred, it shall enter such order. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or trial in response to any inquiry made of him or her for any purpose.
  5. Whenever any person who has not previously been convicted of (i) any felony offense under any state or federal laws; (ii) any offense under Chapter 90 of the General Statutes; or (iii) an offense under any statute of the United States or any state relating to controlled substances included in any schedule of Chapter 90 of the General Statutes or to that paraphernalia included in Article 5B of Chapter 90 of the General Statutes, pleads guilty to or has been found guilty of a misdemeanor under Article 5 of Chapter 90 of the General Statutes by possessing a controlled substance included within Schedules I through VI of Chapter 90, or by possessing drug paraphernalia as prohibited by G.S. 90-113.22 or pleads guilty to or has been found guilty of a felony under G.S. 90-95(a)(3), the court may, upon application of the person not sooner than 12 months after conviction, order cancellation of the judgment of conviction and expunction of the records of the person’s arrest, indictment or information, trial, and conviction. A conviction in which the judgment of conviction has been canceled and the records expunged pursuant to this subsection shall not be thereafter deemed a conviction for purposes of this subsection or for purposes of disqualifications or liabilities imposed by law upon conviction of a crime, except as provided in G.S. 15A-151.5. Cancellation and expunction under this subsection may occur only once with respect to any person. Disposition of a case under this subsection at the district court division of the General Court of Justice shall be final for the purpose of appeal.The granting of an application filed under this subsection shall cause the issue of an order to expunge from all official records, other than the confidential files retained under G.S. 15A-151, all recordation relating to the petitioner’s arrest, indictment or information, trial, finding of guilty, judgment of conviction, cancellation of the judgment, and expunction of records pursuant to this subsection.The judge to whom the petition is presented is authorized to call upon a probation officer for additional investigation or verification of the petitioner’s conduct since conviction. If the court determines that the petitioner was convicted of (i) a misdemeanor under Article 5 of Chapter 90 of the General Statutes for possessing a controlled substance included within Schedules I through VI of Article 5 of Chapter 90 of the General Statutes or for possessing drug paraphernalia as prohibited in G.S. 90-113.22 or (ii) a felony under G.S. 90-95(a)(3), that the petitioner has no disqualifying previous convictions as set forth in this subsection, that the petitioner was not over 21 years of age at the time of the offense, that the petitioner has been of good behavior since his or her conviction, that the petitioner has successfully completed a drug education program approved for this purpose by the Department of Health and Human Services, and that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State at any time prior to or since the conviction for the offense in question, it shall enter an order of expunction of the petitioner’s court record. The effect of such order shall be to restore the petitioner in the contemplation of the law to the status the petitioner occupied before arrest or indictment or information or conviction. No person as to whom such order was entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or conviction, or trial in response to any inquiry made of him or her for any purpose. The judge may waive the condition that the petitioner attend the drug education school if the judge makes a specific finding that there was no drug education school within a reasonable distance of the defendant’s residence or that there were specific extenuating circumstances which made it likely that the petitioner would not benefit from the program of instruction.The court shall also order all law enforcement agencies, the Department of Adult Correction, the Division of Motor Vehicles, and any other State or local agencies identified by the petitioner as bearing records of the conviction and records relating thereto to expunge their records of the conviction. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  6. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

The judge to whom the petition is presented is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct during the probationary period deemed desirable.

If the court determines, after hearing, that such person was discharged and the proceedings against him or her dismissed and that the person was not over 21 years of age at the time of the offense, it shall enter such order. The effect of such order shall be to restore such person in the contemplation of the law to the status the person occupied before such arrest or indictment or information.

History. 2009-577, s. 2; 2010-174, s. 5; 2011-145, s. 19.1(h); 2011-192, s. 5(b); 2011-412, s. 2.6(a); 2013-360, s. 18B.16(c); 2014-100, s. 17.1(o); 2017-186, s. 2(ss); 2017-195, s. 1; 2021-180, s. 19C.9(oo).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 14A-145.2.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor’s Note.

Session Laws 2011-192, s. 5(b), which, in the first sentence of subsection (b), substituted “Schedules I through VI” for “Schedules II through VI” and deleted “by possessing less than one gram of cocaine” following “ G.S. 90-95(a)(3),” and, in subsection (c), in the first paragraph, rewrote the first sentence, and in the third paragraph, in the second sentence, substituted “Schedules I through VI” for “Schedules II through VI,” deleted “for possession of less than one gram of cocaine” following “ G.S. 90-95(a)(3),” and inserted “that the petitioner has no disqualifying previous convictions as set forth in this subsection,” was applicable to persons entering a plea or who are found guilty of an offense on or after January 1, 2012.

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011.’ ”

Session Laws 2011-192, s. 10, provides in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-412, s. 2.6(a), which, in the first paragraph of subsection (c), in the first sentence, substituted “a misdemeanor under Article 5 of Chapter 90 of the General Statutes” for “(i) a misdemeanor under this Article” and substituted “or pleads guilty to or has been found guilty of ” for “or (ii),” was applicable to persons entering a plea or who are found guilty of an offense on or after January 1, 2012.

Session Laws 2017-195, s. 2, made the amendment to subsections (a) and (c) of this section by Session Laws 2017-195, s. 1, effective December 1, 2017, and applicable to petitions filed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(oo), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2010-174, s. 5, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date, rewrote subsections (a) through (c).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction” for “Department of Correction” in subsections (a) and (c).

Session Laws 2013-360, s. 18B.16(c), effective September 1, 2013, in subsection (d), substituted “one hundred seventy-five dollars ($175.00)” for “sixty-five dollars ($65.00)” in the first sentence, and in the second sentence, “are payable to the Administrative Office of the Courts” for “shall be deposited in the General Fund,” and added the third and fourth sentences. For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” throughout the section.

Session Laws 2017-186, s. 2(ss), effective December 1, 2017, inserted “and Juvenile Justice” in subsection (a2).

Session Laws 2017-195, s. 1, effective December 1, 2017, in subsection (a) added “of the county where charged” in the first sentence, substituted “petition” for “application” in the second sentence; in subdivision (a)(3a) substituted “filed with the clerk of superior court. The clerk of superior court shall forward the application” for “forwarded”; inserted the subsection (a1) and (a2) designations; added the last sentence in subsection (a1); in subsection (c) substituted “except as provided in G.S. 15A-151.5” for “including the additional penalties imposed for second or subsequent convictions of Article 5 of Chapter 90 of the General Statutes” at the end of the second sentence; and substituted “Department of Public Safety” for “Department of Correction” in the fourth paragraph. For applicability, see Editor’s note.

Session Laws 2021-180, s. 19C.9(oo), substituted “the Department of Adult Correction,” for “the Division of Adult Correction and Juvenile Justice,” in the first sentence of subsection (a2); and substituted “the Department of Adult Correction,” for “the Department of Public Safety,” in the last undesignated paragraph of subsection (c). For effective date and applicability, see editor's note.

Cross References.

As to photo ID requirement for Schedule II controlled substances, see G.S. 90-106.1.

§ 15A-145.3. Expunction of records for first offenders not over 21 years of age at the time of the offense of certain toxic vapors offenses.

  1. Whenever a person is discharged and the proceedings against the person dismissed under G.S. 90-113.14(a) or (a1), such person, if he or she was not over 21 years of age at the time of the offense, may apply to the court of the county where charged for an order to expunge from all official records, other than the confidential files retained under G.S. 15A-151, all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty, and dismissal and discharge pursuant to this section. The applicant shall attach to the petition the following:
    1. An affidavit by the petitioner that the petitioner has been of good behavior during the period of probation since the decision to defer further proceedings on the misdemeanor in question and has not been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state;
    2. Verified affidavits by two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives, and that his or her character and reputation are good;
    3. Repealed by Session Laws 2010-174, s. 6, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date.
    4. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.The judge to whom the petition is presented is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct during the probationary period deemed desirable.If the court determines, after hearing, that such person was discharged and the proceedings against the person dismissed and that he or she was not over 21 years of age at the time of the offense, it shall enter such order. The effect of such order shall be to restore such person in the contemplation of the law to the status the person occupied before such arrest or indictment or information. No person as to whom such order was entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or trial in response to any inquiry made of him or her for any purpose.The court shall also order that all records of the proceeding be expunged from the records of the court and direct all law enforcement agencies bearing records of the same to expunge their records of the proceeding. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  2. Whenever any person is charged with a misdemeanor under Article 5A of Chapter 90 of the General Statutes or possessing drug paraphernalia as prohibited by G.S. 90-113.22, upon dismissal by the State of the charges against the person or upon entry of a nolle prosequi or upon a finding of not guilty or other adjudication of innocence, such person may apply to the court for an order to expunge from all official records all recordation relating to the person’s arrest, indictment or information, and trial. If the court determines, after hearing that such person was not over 21 years of age at the time the offense for which the person was charged occurred, it shall enter such order. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  3. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or trial in response to any inquiry made of him or her for any purpose. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  4. Whenever any person who has not previously been convicted of an offense under Article 5 or 5A of Chapter 90 of the General Statutes or under any statute of the United States or any state relating to controlled substances included in any schedule of Article 5 of Chapter 90 of the General Statutes or to that paraphernalia included in Article 5B of Chapter 90 of the General Statutes pleads guilty to or has been found guilty of a misdemeanor under Article 5A of Chapter 90 of the General Statutes, the court may, upon application of the person not sooner than 12 months after conviction, order cancellation of the judgment of conviction and expunction of the records of the person’s arrest, indictment or information, trial, and conviction. A conviction in which the judgment of conviction has been cancelled and the records expunged pursuant to this subsection shall not be thereafter deemed a conviction for purposes of this subsection or for purposes of disqualifications or liabilities imposed by law upon conviction of a crime, except as provided in G.S. 15A-151.5. Cancellation and expunction under this subsection may occur only once with respect to any person. Disposition of a case under this subsection at the district court division of the General Court of Justice shall be final for the purpose of appeal.The granting of an application filed under this subsection shall cause the issue of an order to expunge from all official records, other than the confidential files retained under G.S. 15A-151, all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty, judgment of conviction, cancellation of the judgment, and expunction of records pursuant to this subsection.The judge to whom the petition is presented is authorized to call upon a probation officer for additional investigation or verification of the petitioner’s conduct since conviction. If the court determines that the petitioner was convicted of a misdemeanor under Article 5A of Chapter 90 of the General Statutes, or for possessing drug paraphernalia as prohibited by G.S. 90-113.22, that the petitioner was not over 21 years of age at the time of the offense, that the petitioner has been of good behavior since his or her conviction, that the petitioner has successfully completed a drug education program approved for this purpose by the Department of Health and Human Services, and that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State at any time prior to or since the conviction for the misdemeanor in question, it shall enter an order of expunction of the petitioner’s court record. The effect of such order shall be to restore the petitioner in the contemplation of the law to the status he occupied before such arrest or indictment or information or conviction. No person as to whom such order was entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or conviction, or trial in response to any inquiry made of him or her for any purpose. The judge may waive the condition that the petitioner attend the drug education school if the judge makes a specific finding that there was no drug education school within a reasonable distance of the defendant’s residence or that there were specific extenuating circumstances which made it likely that the petitioner would not benefit from the program of instruction.The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  5. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

History. 2009-577, s. 3; 2010-174, s. 6; 2013-360, s. 18B.16(d); 2014-100, s. 17.1(o); 2017-195, s. 1.

Effect of Amendments.

Session Laws 2010-174, s. 6, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date, rewrote the section.

Session Laws 2013-360, s. 18B.16(d), effective September 1, 2013, added subsection (d). For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” throughout the section.

Session Laws 2017-195, s. 1, effective December 1, 2017, in subsection (a) inserted “of the county where charged” in the first sentence, substituted “petition” for “application” in the second sentence; in subdivision (a)(3a) substituted “filed with the clerk of superior court. The clerk of superior court shall forward the application” for “forwarded”; inserted subsection (b1) designation, and therein added the last sentence; and substituted “except as provided in G.S. 15A-151.5.” for “including the additional penalties imposed for second or subsequent convictions of violation of Article 5A of Chapter 90 of the General Statutes” at the end of the second sentence in subsection (c). For applicability, see Editor’s note.

§ 15A-145.4. Expunction of records for first offenders who are under 18 years of age at the time of the commission of a nonviolent felony.

  1. For purposes of this section, the term “nonviolent felony” means any felony except the following:
    1. A Class A through G felony.
    2. A felony that includes assault as an essential element of the offense.
    3. A felony that is an offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register.
    4. Repealed by Session Laws 2012-191, s. 2, effective December 1, 2012.
    5. Any felony offense under the following sex-related or stalking offenses: G.S. 14-27.25(b), 14-27.30(b), 14-190.7, 14-190.8, 14-202, 14-208.11A, 14-208.18, 14-277.3, 14-277.3A, 14-321.1.
    6. Any felony offense in Chapter 90 of the General Statutes where the offense involves methamphetamines, heroin, or possession with intent to sell or deliver or sell and deliver cocaine; except that if a prayer for judgment continued has been entered for an offense classified as either a Class G, H, or I felony, the prayer for judgment continued shall be subject to expunction under the procedures in this section.
    7. A felony offense under G.S. 14-12.12(b), 14-12.13, or 14-12.14, or any felony offense for which punishment was determined pursuant to G.S. 14-3(c).
    8. A felony offense under G.S. 14-401.16.
    9. Any felony offense in which a commercial motor vehicle was used in the commission of the offense.
    10. Any felony offense involving impaired driving as defined in G.S. 20-4.01(24a).
  2. Notwithstanding any other provision of law, if the person is convicted of more than one nonviolent felony in the same session of court and none of the nonviolent felonies are alleged to have occurred after the person had already been served with criminal process for the commission of a nonviolent felony, then the multiple nonviolent felony convictions shall be treated as one nonviolent felony conviction under this section, and the expunction order issued under this section shall provide that the multiple nonviolent felony convictions shall be expunged from the person’s record in accordance with this section.
  3. Whenever any person who had not yet attained the age of 18 years at the time of the commission of the offense and has not previously been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state pleads guilty to or is guilty of a nonviolent felony, the person may file a petition in the court of the county where the person was convicted for expunction of the nonviolent felony from the person’s criminal record. The petition shall not be filed earlier than four years after the date of the conviction or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later. The person shall also perform at least 100 hours of community service, preferably related to the conviction, before filing a petition for expunction under this section. The petition shall contain the following:
    1. An affidavit by the petitioner that the petitioner has been of good moral character since the date of conviction of the nonviolent felony in question and has not been convicted of any other felony or any misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state.
    2. Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives and that the petitioner’s character and reputation are good.
    3. A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.
    4. An application on a form approved by the Administrative Office of the Courts requesting and authorizing (i) a State and national criminal history record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual; (ii) a search by the Department of Public Safety for any outstanding warrants or pending criminal cases; and (iii) a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.
    5. An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.
    6. An affidavit by the petitioner that the petitioner has performed at least 100 hours of community service since the conviction for the nonviolent felony. The affidavit shall include a list of the community services performed, a list of the recipients of the services, and a detailed description of those services.
    7. An affidavit by the petitioner that the petitioner possesses a high school diploma, a high school graduation equivalency certificate, or a General Education Development degree.The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 30 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition. The district attorney shall make his or her best efforts to contact the victim, if any, to notify the victim of the request for expunction prior to the date of the hearing.
  4. The court in which the petition was filed shall take the following steps and shall consider the following issues in rendering a decision upon a petition for expunction of records of a nonviolent felony under this section:
    1. Call upon a probation officer for additional investigation or verification of the petitioner’s conduct during the four-year period since the date of conviction of the nonviolent felony in question.
    2. Review the petitioner’s juvenile record, ensuring that the petitioner’s juvenile records remain separate from adult records and files and are withheld from public inspection as provided under Article 30 of Chapter 7B of the General Statutes.
    3. Review the amount of restitution made by the petitioner to the victim of the nonviolent felony to be expunged and give consideration to whether or not restitution was paid in full.
    4. Review any other information the court deems relevant, including, but not limited to, affidavits or other testimony provided by law enforcement officers, district attorneys, and victims of nonviolent felonies committed by the petitioner.
  5. The court may order that the person be restored, in the contemplation of the law, to the status the person occupied before the arrest or indictment or information if the court finds all of the following after a hearing:
    1. The petitioner has remained of good moral character and has been free of conviction of any felony or misdemeanor, other than a traffic violation, for four years from the date of conviction of the nonviolent felony in question or any active sentence, period of probation, or post-release supervision has been served, whichever is later.
    2. The petitioner has not previously been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state.
    3. The petitioner has no outstanding warrants or pending criminal cases.
    4. The petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner.
    5. The petitioner was less than 18 years old at the time of the commission of the offense in question.
    6. The petitioner has performed at least 100 hours of community service since the time of the conviction and possesses a high school diploma, a high school graduation equivalency certificate, or a General Education Development degree.
    7. The search of the confidential records of expunctions conducted by the Administrative Office of the Courts shows that the petitioner has not been previously granted an expunction.
  6. No person as to whom an order has been entered pursuant to subsection (e) of this section shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge the arrest, indictment, information, trial, or conviction. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  7. Persons required by State law to obtain a criminal history record check on a prospective employee shall not be deemed to have knowledge of any convictions expunged under this section.
  8. Persons pursuing certification under the provisions of Article 1 of Chapter 17C or Article 2 of Chapter 17E of the General Statutes, however, shall disclose any and all felony convictions to the certifying Commission regardless of whether or not the felony convictions were expunged pursuant to the provisions of this section.
  9. Persons requesting a disclosure statement be prepared by the North Carolina Sheriffs’ Education and Training Standards Commission pursuant to Article 3 of Chapter 17E of the General Statutes, however, shall disclose any and all felony convictions to the North Carolina Sheriffs’ Education and Training Standards Commission regardless of whether or not the felony convictions were expunged pursuant to the provisions of this section.
  10. The court shall also order that the nonviolent felony conviction be expunged from the records of the court and direct all law enforcement agencies bearing record of the same to expunge their records of the conviction. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  11. Any other applicable State or local government agency shall expunge from its records entries made as a result of the conviction ordered expunged under this section. The agency shall also vacate any administrative actions taken against a person whose record is expunged under this section as a result of the charges or convictions expunged. A person whose administrative action has been vacated by an occupational licensing board pursuant to an expunction under this section may then reapply for licensure and must satisfy the board’s then current education and preliminary licensing requirements in order to obtain licensure. This subsection shall not apply to the Department of Justice for DNA records and samples stored in the State DNA Database and the State DNA Databank.
  12. Any person eligible for expunction of a criminal record under this section shall be notified about the provisions of this section by the probation officer assigned to that person. If no probation officer is assigned, notification of the provisions of this section shall be provided by the court at the time of the conviction of the felony which is to be expunged under this section.
  13. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

History. 2011-278, s. 1; 2012-191, s. 2; 2013-53, s. 1; 2013-360, s. 18B.16(e); 2014-100, s. 17.1(o); 2015-150, s. 3; 2015-181, s. 44; 2017-195, s. 1; 2021-107, s. 7(b).

Editor’s Note.

“Article 1 of Chapter 17C” has been substituted for “Chapter 17C” in this section at the direction of the Revisor of Statutes.

Session Laws 2021-107, s. 10, made the amendments to this section, by Session Laws 2021-107, s. 7(b), effective October 1, 2021, and applicable to elections and appointments to the office of sheriff on or after that date.

Effect of Amendments.

Session Laws 2012-191, s. 2, effective December 1, 2012, in subdivision (a)(3), substituted “requiring registration pursuant to” for “for which the convicted offender must register under” and “Statutes, whether or not the person is currently required to register” for “Statutes”; deleted former subdivision (a)(4), which read: “A felony that is an offense that did not require registration under Article 27A of Chapter 14 of the General Statutes at the time of the commission of the offense but does require registration on the date the petition to expunge the offense would be filed.”; in subdivision (a)(5), substituted “Any felony offense under” for “A felony charged for any of,”deleted “14-190.6,” preceding “14-190.7,” and added “14-277.3,”; in subdivision (a)(6), substituted “in Chapter 90” for “charged pursuant to Chapter 90” and “cocaine; except that if a prayer for judgment continued has been entered for an offense classified as either a Class G, H, or I felony, the prayer for judgment continued shall be subject to expunction under the procedures in this section” for “cocaine”; in subdivision (a)(7), substituted “under” for “charged pursuant to,”added “felony” following “or any,” and substituted “for which punishment was determined” for “charged as a felony”; in subdivision (a)(8), substituted “under” for “charged pursuant to”; in subdivision (a)(9), substituted “Any” for “A”; and in subsection (b), substituted “served with criminal process” for “charged and arrested.” For applicability, see Editor’s note.

Session Laws 2013-53, s. 1, effective May 17, 2013, in subsection (h), substituted “vacate” for “reverse” in the second sentence, and added the third sentence.

Session Laws 2013-360, s. 18B.16(e), effective September 1, 2013, added subsection (j). For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” in subsections (c) and (j).

Session Laws 2015-150, s. 3, effective December 1, 2015, added subdivision (a)(10). For applicability, see editor’s note.

Session Laws 2015-181, s. 44, effective December 1, 2015, substituted “G.S. 14-27.25(b), 14-27.30(b)” for “G.S. 14-27.7A(b)” in subdivision (a)(5). For applicability, see editor’s note.

Session Laws 2017-195, s. 1, effective December 1, 2017, in subsection (c), inserted “of the county”; in subdivision (c)(4) substituted “filed with the clerk of superior court. The clerk of superior court shall forward the application” for “forwarded”; added the last sentence in subsection (f); and inserted the subsection (f1) designation. For applicability, see Editor’s note.

Session Laws 2021-107, s. 7(b), deleted the former second sentence in subsection (f) pertaining to disclosure of felony convictions; and added subsections (f2) and (f3). For effective date and applicability, see editor’s note.

§ 15A-145.5. Expunction of certain misdemeanors and felonies; no age limitation.

  1. For purposes of this section, the term “nonviolent misdemeanor” or “nonviolent felony” means any misdemeanor or felony except the following:
    1. A Class A through G felony or a Class A1 misdemeanor.
    2. An offense that includes assault as an essential element of the offense.
    3. An offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register.
    4. Any of the following sex-related or stalking offenses: G.S. 14-27.25(b), 14-27.30(b), 14-190.7, 14-190.8, 14-190.9, 14-202, 14-208.11A, 14-208.18, 14-277.3, 14-277.3A, 14-321.1.
    5. Any felony offense in Chapter 90 of the General Statutes where the offense involves methamphetamines, heroin, or possession with intent to sell or deliver or sell and deliver cocaine.
    6. An offense under G.S. 14-12.12(b), 14-12.13, or 14-12.14, or any offense for which punishment was determined pursuant to G.S. 14-3(c).
    7. An offense under G.S. 14-401.16.
    8. An offense under G.S. 14-54(a) or G.S. 14-54(a1).
    9. Any felony offense in which a commercial motor vehicle was used in the commission of the offense.
    10. Repealed by Session Laws 2021-118, s. 1, effective December 1, 2021, and applicable to petitions filed on or after that date.
    11. Any offense that is an attempt to commit an offense described in subdivisions (1) through (8) of this subsection.
  2. An offense involving impaired driving as defined in G.S. 20-4.01(24a) is not eligible for expunction.
  3. Notwithstanding any other provision of law, if the person is convicted of more than one nonviolent felony or nonviolent misdemeanor in the same session of court, then the multiple nonviolent felony or nonviolent misdemeanor convictions shall be treated as one nonviolent felony or nonviolent misdemeanor conviction under this section, and the expunction order issued under this section shall provide that the multiple nonviolent felony convictions or nonviolent misdemeanor convictions shall be expunged from the person’s record in accordance with this section.
  4. A person may file a petition, in the court of the county where the person was convicted.
    1. For expunction of one or more nonviolent misdemeanor convictions, the petition shall not be filed earlier than one of the following:
      1. For expunction of one nonviolent misdemeanor, five years after the date of the conviction or when any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.
      2. For expunction of more than one nonviolent misdemeanor, seven years after the date of the person’s last conviction, other than a traffic offense not listed in the petition for expunction, or seven years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.
    2. For expunction of up to three nonviolent felony convictions, the petition shall not be filed earlier than one of the following:
      1. For expunction of one nonviolent felony, 10 years after the date of the conviction or 10 years after any active sentence, period of probation, or post-release supervision, related to the conviction listed in the petition, has been served, whichever occurs later.
      2. For expunction of two or three nonviolent felonies, 20 years after the date of the most recent conviction listed in the petition, or 20 years after any active sentence, period of probation, or post-release supervision, related to a conviction listed in the petition, has been served, whichever occurs later.
  5. A petition filed pursuant to this section shall contain, but not be limited to, the following:
    1. An affidavit by the petitioner that the petitioner is of good moral character and one of the following statements:
      1. If the petition is for the expunction of one or more nonviolent misdemeanors, that the petitioner has not been convicted of any other felony or misdemeanor, other than a traffic violation, under the laws of the United States or the laws of this State or any other state during the applicable five-year or seven-year waiting period set forth in subsection (c) of this section.
      2. If the petition is for the expunction of one or up to three nonviolent felonies, that the petitioner has not been convicted under the laws of the United States or the laws of this State or any other state of any misdemeanor, other than a traffic violation, in the five years preceding the petition, or any felony during the applicable 10-year or 20-year waiting period set forth in subsection (c) of this section.
    2. Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives and that the petitioner’s character and reputation are good.
    3. A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.
    4. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal history record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual, a search by the Department of Public Safety for any outstanding warrants on pending criminal cases, and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.
    5. An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.
    6. An affidavit by the petitioner providing information on any additional petitions the petitioner has submitted, or intends to submit, in other counties pursuant to subsection (c4) of this section seeking expunction of additional convictions.
    7. An acknowledgement by the petitioner that, except as provided in subsection (c5) of this section, the expunction of one nonviolent misdemeanor prior to the seven-year waiting period or one nonviolent felony prior to the 20-year waiting period will preclude the petitioner from expunging additional nonviolent misdemeanors or nonviolent felonies that might otherwise be eligible for expunction pursuant to sub-subdivision b. of subdivision (1) of subsection (c) of this section or sub-subdivision b. of subdivision (2) of subsection (c) of this section.
  6. The court, after hearing a petition for expunction of one or more nonviolent misdemeanors, shall order that the petitioner be restored, in the contemplation of the law, to the status the petitioner occupied before the arrest or indictment or information, except as provided in G.S. 15A-151.5, if the court finds all of the following:
    1. One of the following:
      1. The petitioner has not previously been granted an expunction under this section for one or more nonviolent misdemeanors.
      2. Any previous expunction granted to the petitioner under this section for one or more nonviolent misdemeanors was granted pursuant to a petition filed prior to December 1, 2021.
    2. The petitioner is of good moral character.
    3. The petitioner has no outstanding warrants or pending criminal cases.
    4. The petitioner has no other felony or misdemeanor convictions, other than a traffic violation not listed in the petition for expunction, during the applicable five-year or seven-year waiting period set forth in subsection (c) of this section.
    5. The petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner.
    6. The petitioner meets one of the following criteria:
      1. For a petition for expunction of one nonviolent misdemeanor, the petitioner has no convictions for any other felony or misdemeanor, other than a traffic offense.
      2. For a petition for expunction of more than one nonviolent misdemeanor, the petitioner has no convictions for a misdemeanor or felony that is listed as an exception to the terms “nonviolent misdemeanor” or “nonviolent felony” as provided in subsection (a) of this section.
    7. The petitioner was convicted of an offense or offenses eligible for expunction under this section.
    8. The petitioner has completed the applicable five-year or seven-year waiting period set forth in subsection (c) of this section.
  7. The court, after hearing a petition for expunction of one or up to three nonviolent felonies, may order that the petitioner be restored, in the contemplation of the law, to the status the petitioner occupied before the arrest or indictment or information, except as provided in G.S. 15A-151.5, if the court finds all of the following:
    1. One of the following:
      1. The petitioner has not previously been granted an expunction under this section for one or more nonviolent felonies.
      2. Any previous expunction granted to the petitioner under this section for a felony was granted pursuant to a petition filed prior to December 1, 2021.
    2. The petitioner is of good moral character.
    3. The petitioner has no outstanding warrants or pending criminal cases.
    4. If the petition is for the expunction of one felony, the petitioner has no misdemeanor convictions, other than a traffic violation not listed in the petition for expunction, in the five years preceding the petition, and no other felony convictions during the applicable 10-year waiting period set forth in subsection (c) of this section.
    5. If the petition is for the expunction of two or three felonies, or if the petitioner has filed petitions in more than one county pursuant to subsection (c4) of this section, the petitioner has no misdemeanor convictions other than a traffic violation not listed in the petition for expunction in the five years preceding the petition, and no other felony convictions during the applicable 20-year waiting period set forth in subsection (c) of this section.
    6. If the petition is for the expunction of two or three felonies, if the petitioner has filed petitions in more than one county pursuant to subsection (c4) of this section, or if the petition is filed pursuant to subsection (c5) of this section, the felony offenses were committed within the same 24-month period.
    7. The petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner.
    8. The petitioner has no convictions for a misdemeanor that is listed as an exception to the term “nonviolent misdemeanor” as provided in subsection (a) of this section or any other felony offense.
    9. The petitioner was convicted of an offense eligible for expunction under this section.
    10. The petitioner has completed the applicable 10-year or 20-year waiting period set forth in subsection (c) of this section.
  8. A person petitioning for expunction of multiple convictions pursuant to sub-subdivision b. of subdivision (1) of subsection (c) of this section or sub-subdivision b. of subdivision (2) of subsection (c) of this section, where the convictions were obtained in more than one county, shall file a petition in each county of conviction. All petitions shall be filed within a 30-day period. The granting of one petition shall not preclude the granting of any other petition filed within the same 30-day period.
  9. A person granted an expunction under this section of one or more nonviolent misdemeanors pursuant to a petition filed prior to December 1, 2021, may petition for the expunction of additional nonviolent misdemeanors if the offenses were committed prior to the date of the previous expunction. A person granted an expunction under this section of one nonviolent felony pursuant to a petition filed prior to December 1, 2021, may petition for the expunction of up to two additional nonviolent felonies if the offenses were committed prior to the date of the previous expunction and within the same 24-month period as the previously expunged felony.
  10. No person as to whom an order has been entered pursuant to subsection (c) of this section shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge the arrest, indictment, information, trial, or conviction. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  11. Persons pursuing certification under the provisions of Article 1 of Chapter 17C or Article 2 of Chapter 17E of the General Statutes, however, shall disclose any and all convictions to the certifying Commission, regardless of whether or not the convictions were expunged pursuant to the provisions of this section.
  12. Persons requesting a disclosure statement be prepared by the North Carolina Sheriffs’ Education and Training Standards Commission pursuant to Article 3 of Chapter 17E of the General Statutes, however, shall disclose any and all felony convictions to the North Carolina Sheriffs’ Education and Training Standards Commission regardless of whether or not the felony convictions were expunged pursuant to the provisions of this section.
  13. Persons required by State law to obtain a criminal history record check on a prospective employee shall not be deemed to have knowledge of any convictions expunged under this section.
  14. The court shall also order that the conviction or convictions be expunged from the records of the court and direct all law enforcement agencies bearing record of the same to expunge their records of the conviction. The clerk shall notify State and local agencies of the court’s order, as provided in G.S. 15A-150.
  15. Any other applicable State or local government agency shall expunge from its records entries made as a result of the conviction or convictions ordered expunged under this section upon receipt from the petitioner of an order entered pursuant to this section. The agency shall also vacate any administrative actions taken against a person whose record is expunged under this section as a result of the charges or convictions expunged. A person whose administrative action has been vacated by an occupational licensing board pursuant to an expunction under this section may then reapply for licensure and must satisfy the board’s then current education and preliminary licensing requirements in order to obtain licensure. This subsection shall not apply to the Department of Justice for DNA records and samples stored in the State DNA Database and the State DNA Databank.
  16. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection shall be deposited in the General Fund. This subsection does not apply to petitions filed by an indigent.

A person previously granted an expunction under this section is not eligible for relief under this section for any offense committed after the date of the previous order for expunction. Except as provided in subsections (c4) and (c5) of this section, a person previously granted an expunction under this section for one or more misdemeanors is not eligible for expunction of additional misdemeanors under this section and a person previously granted an expunction under this section for one or more felonies is not eligible for expunction of additional felonies under this section.

Upon filing of the petition, the petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 30 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition. Upon good cause shown, the court may grant the district attorney an additional 30 days to file objection to the petition. The district attorney shall make his or her best efforts to contact the victim, if any, to notify the victim of the request for expunction prior to the date of the hearing. Upon request by the victim, the victim has a right to be present at any hearing on the petition for expunction and the victim’s views and concerns shall be considered by the court at such hearing.

The presiding judge is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct since the conviction. The court shall review any other information the court deems relevant, including, but not limited to, affidavits or other testimony provided by law enforcement officers, district attorneys, and victims of crimes committed by the petitioner.

If the court denies the petition, the order shall include a finding as to the reason for the denial.

If the court denies the petition, the order shall include a finding as to the reason for the denial.

History. 2012-191, s. 1; 2013-53, s. 2; 2013-410, s. 4; 2014-100, s. 17.1(o); 2014-119, ss. 1(a), 11(a); 2015-150, s. 4; 2015-181, s. 43; 2017-195, s. 1; 2020-35, s. 4(a); 2021-107, s. 7(c); 2021-118, s. 1; 2021-167, s. 2.3(a).

Editor’s Note.

“Article 1 of Chapter 17C” has been substituted for “Chapter 17C” in this section at the direction of the Revisor of Statutes.

Session Laws 2020-35, s. 4(b), made the amendment of this section by Session Laws 2020-35, s. 4(a), effective December 1, 2020, and applicable to petitions filed on or after that date.

Session Laws 2021-107, s. 10, made the amendments to this section, by Session Laws 2021-107, s. 7(c), effective October 1, 2021, and applicable to elections and appointments to the office of sheriff on or after that date.

Session Laws 2021-118, s. 5, made the amendments to this section by Session Laws 2021-118, s. 1, effective December 1, 2021, and applicable to petitions filed on or after that date.

Session Laws 2021-167, s. 2.3(b), made the rewriting of subdivision (c1)(1) by Session Laws 2021-167, s. 2.3(a), effective December 1, 2021, and applicable to petitions filed on or after that date.

Effect of Amendments.

Session Laws 2013-53, s. 2, effective May 17, 2013, in subsection (f), substituted “vacate” for “reverse” in the second sentence, and added the third sentence.

Session Laws 2013-410, s. 4, effective August 23, 2013, deleted “and was convicted of a nonviolent misdemeanor or nonviolent felony that is eligible pursuant to subsection (b) of this section” following “violation” at the end of the first sentence in subsection (c).

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” throughout subsection (c).

Session Laws 2014-119, s. 1(a), effective December 1, 2014, added subdivisions (a)(7a) and (a)(9). See Editor’s note for applicability.

Session Laws 2014-119, s. 11(a), effective September 18, 2014, deleted “or to fingerprint records” at the end of subsection (f). See Editor’s note for applicability.

Session Laws 2015-150, s. 4, effective December 1, 2015, added subdivision (a)(8a); and substituted “(8a)” for “(8)” in subdivision (a)(9). For applicability, see editor’s note.

Session Laws 2015-181, s. 43, effective December 1, 2015, substituted “G.S. 14-27.25(b), 14-27.30(b)” for “G.S. 14-27.7A(b)” in subdivision (a)(4).

Session Laws 2017-195, s. 1, effective December 1, 2017, in subsection (c) inserted “of the county” in the first sentence, substituted “10 years” for “15 years” and inserted “for a nonviolent felony or five years for a nonviolent misdemeanor” in the second sentence; in subdivision (c)(4) substituted “filed with the clerk of superior court. The clerk of superior court shall forward the application” for “forwarded”; in the last paragraph substituted “a nonviolent felony at least 10 years prior to the filing of the petition or a nonviolent misdemeanor at least five years prior to the filing of the petition” for “the nonviolent misdemeanor or nonviolent felony at least 15 years prior to the filing of the petition” and inserted “except as provided in G.S. 15A-151.5” at the end of the first sentence; inserted the last sentence in subsection (d); and added subsection designation (d1). For applicability, see Editor’s note.

Session Laws 2020-35, s. 4(a), deleted “and none of the nonviolent felonies or nonviolent misdemeanors are alleged to have occurred after the person had already been served with criminal process for the commission of a nonviolent felony or nonviolent misdemeanor” following “session of court” in subsection (b); designated subsection (c) as subsections (c), (c1), and (c2) and rewrote those subsections; added subsection (c3); and added “or convictions” in the first sentence of subsections (e) and (f). For effective date and applicability, see editor’s note.

Session Laws 2021-107, s. 7(c), inserted “Article 2 of Chapter” preceding “17E” in subsection (d1); added subsection (d2); and redesignated former subsection (d2) as subsection (d3). For effective date and applicability, see editor’s note.

Session Laws 2021-118, s. 1, rewrote subdivisions (a)(7a), (c1)(1), (c2)(1) and subsections (c) and (c3); added subsections (a1), (c1)(6) and (7), (c4), and (c5); and deleted subdivision (a)(8a), which read: “An offense involving impaired driving as defined in G.S. 20 4.01(24a).” For effective date and applicability, see editor’s note.

Session Laws 2021-167, s. 2.3(a), rewrote subdivision (c1)(1). For effective date and applicability, see editor's note.

CASE NOTES

Appeal by State. —

Legislature did not give the State the right to appeal an expunction order in G.S. 15A-145.5 and did not amend G.S. 15A-1445 to include this right. It is not the Supreme Court’s role to expand G.S. 15A-145.5 to include the right to appeal an expunction order, or to construe G.S. 7A-27 as governing procedure in a criminal matter not clearly brought under that statute’s provisions authorizing appeals of right from the trial courts. State v. J.C., 372 N.C. 203, 827 S.E.2d 280, 2019 N.C. LEXIS 373 (2019).

§ 15A-145.6. Expunctions for certain defendants convicted of prostitution.

  1. The following definitions apply in this section:
    1. Prostitution offense. — A conviction for (i) violation of G.S. 14-204 or (ii) engaging in prostitution in violation of G.S. 14-204(7) for an offense that occurred prior to October 1, 2013.
    2. Violent felony or violent misdemeanor. — A Class A through G felony or a Class A1 misdemeanor that includes assault as an essential element of the offense.
  2. A person who has been convicted of a prostitution offense may file a petition in the court of the county where the person was convicted for expunction of the prostitution offense from the person’s criminal record provided that all the following criteria are met:
    1. The person has not previously been convicted of any violent felony or violent misdemeanor under the laws of the United States or the laws of this State or any other state.
    2. The person satisfies any one of the following criteria:
      1. Repealed by Session Laws 2019-158, s. 4(a), effective December 1, 2019, and applicable to petitions filed on or after that date.
      2. The person has no prior convictions for a prostitution offense and at least three years have passed since the date of conviction or the completion of any active sentence, period of probation, and post-release supervision, whichever occurs later.
      3. The person was discharged and the charge was dismissed upon completion of a conditional discharge under G.S. 14-204(b).
  3. The petition shall contain all of the following:
    1. An affidavit by the petitioner that the petitioner (i) has no prior conviction of a violent felony or violent misdemeanor, (ii) has been of good moral character since the date of conviction of the prostitution offense in question, and (iii) has not been convicted of any felony or misdemeanor under the laws of the United States or the laws of this State or any other state since the date of the conviction of the prostitution offense in question.
    2. Verified affidavits of two persons, who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives and that the petitioner’s character and reputation are good.
    3. A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.
    4. An application on a form approved by the Administrative Office of the Courts requesting and authorizing (i) a State and national criminal history record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual; (ii) a search by the Department of Public Safety for any outstanding warrants or pending criminal cases; and (iii) a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.
    5. An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.
  4. The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 30 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition.
  5. The court in which the petition was filed shall take the following steps and shall consider the following issues in rendering a decision upon a petition for expunction of records of a prostitution offense under this section:
    1. Call upon a probation officer for additional investigation or verification of the petitioner’s conduct during the period since the date of conviction of the prostitution offense in question.
    2. Review any other information the court deems relevant, including, but not limited to, affidavits or other testimony provided by law enforcement officers and district attorneys.
  6. The court shall order that the person be restored, in the contemplation of the law, to the status the person occupied before the arrest or indictment or information if the court finds all of the following after a hearing:
    1. The criteria set out in subsection (b) of this section are satisfied.
    2. The petitioner has remained of good moral character and has been free of conviction of any felony or misdemeanor, other than a traffic violation, since the date of conviction of the prostitution offense in question.
    3. The petitioner has no outstanding warrants or pending criminal cases.
    4. The petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner.
    5. The search of the confidential records of expunctions conducted by the Administrative Office of the Courts shows that the petitioner has not been previously granted an expunction, other than an expunction for a prostitution offense.
  7. No person as to whom an order has been entered pursuant to subsection (f) of this section shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge the arrest, indictment, information, trial, or conviction. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  8. Persons pursuing certification under the provisions of Article 1 of Chapter 17C or Article 2 of Chapter 17E of the General Statutes, however, shall disclose any and all prostitution convictions to the certifying Commission regardless of whether or not the prostitution convictions were expunged pursuant to the provisions of this section.
  9. Persons requesting a disclosure statement be prepared by the North Carolina Sheriffs’ Education and Training Standards Commission pursuant to Article 3 of Chapter 17E of the General Statutes, however, shall disclose any and all felony convictions to the North Carolina Sheriffs’ Education and Training Standards Commission regardless of whether or not the felony convictions were expunged pursuant to the provisions of this section.
  10. Persons required by State law to obtain a criminal history record check on a prospective employee shall not be deemed to have knowledge of any convictions expunged under this section.
  11. The court shall also order that the conviction of the prostitution offense be expunged from the records of the court and direct all law enforcement agencies bearing record of the same to expunge their records of the conviction. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  12. Any other applicable State or local government agency shall expunge from its records entries made as a result of the conviction ordered expunged under this section. The agency shall also reverse any administrative actions taken against a person whose record is expunged under this section as a result of the charges or convictions expunged. This subsection shall not apply to the Department of Justice for DNA records and samples stored in the State DNA Database and the State DNA Databank.
  13. Any person eligible for expunction of a criminal record under this section shall be notified about the provisions of this section by the probation officer assigned to that person. If no probation officer is assigned, notification of the provisions of this section shall be provided by the court at the time of the conviction of the prostitution offense which is to be expunged under this section.

History. 2013-368, s. 11; 2014-100, s. 17.1(o); 2017-195, s. 1; 2019-158, s. 4(a); 2021-107, s. 7(d).

Editor’s Note.

“Article 1 of Chapter 17C” has been substituted for “Chapter 17C” in this section at the direction of the Revisor of Statutes.

Session Laws 2019-158, s. 4(e), made the amendment to subdivision (b)(2) of this section by Session Laws 2019-158, s. 4(a), effective December 1, 2019, and applicable to petitions filed on or after that date.

Session Laws 2019-158, s. 7 is a severability clause.

Session Laws 2021-107, s. 10, made the amendments to this section, by Session Laws 2021-107, s. 7(d), effective October 1, 2021, and applicable to elections and appointments to the office of sheriff on or after that date.

Effect of Amendments.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” throughout subsection (c).

Session Laws 2017-195, s. 1, effective December 1, 2017, inserted “of the county” in subsection (b); in subdivision (c)(4) substituted “filed with the clerk of superior court. The clerk of superior court shall forward the application” for “forwarded”; added the last sentence in subsection (g); and inserted subsection (g1) designation. For applicability, see Editor’s note.

Session Laws 2019-158, s. 4(a), deleted subdivision (b)(2)a., which allowed expunction for victims of human trafficking or sexual servitude; and rewrote subdivision (b)(2)c., which formerly read: “The person received a conditional discharge pursuant to G.S. 14-204(b).” For effective date and applicability, see editor’s note.

Session Laws 2021-107, s. 7(d), inserted “Article 2 of Chapter” preceding “17E” in subsection (g1); added subsection (g2); and redesignated former subsection (g2) as subsection (g3). For effective date and applicability, see editor’s note.

§ 15A-145.7. Expunction of records for first offenders under 20 years of age at the time of the offense of certain offenses. [Effective until January 1, 2023]

  1. Whenever a person is discharged, and the proceedings against the person dismissed, pursuant to G.S. 14-277.8, and the person was under 20 years of age at the time of the offense, the person may apply to the court of the county where charged for an order to expunge from all official records, other than the confidential files retained under G.S. 15A-151, all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty, and dismissal and discharge pursuant to this section. The applicant shall attach to the petition the following:
    1. An affidavit by the petitioner that he or she has been of good behavior during the period of probation since the decision to defer further proceedings on the offense in question and has not been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state;
    2. Verified affidavits by two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which he or she lives, and that the petitioner’s character and reputation are good;
    3. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.The judge to whom the petition is presented is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct during the probationary period deemed desirable.If the court determines, after hearing, that such person was discharged and the proceedings against him or her dismissed and that the person was under 20 years of age at the time of the offense, it shall enter such order. The effect of such order shall be to restore such person in the contemplation of the law to the status the person occupied before such arrest or indictment or information.
  2. No person as to whom such order was entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or trial in response to any inquiry made of him or her for any purpose. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  3. The court shall also order that all records of the proceeding be expunged from the records of the court and direct all law enforcement agencies, the Division of Adult Correction and Juvenile Justice, the Division of Motor Vehicles, and any other State and local government agencies identified by the petitioner as bearing records of the same to expunge their records of the proceeding. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  4. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

History. 2018-72, s. 4.

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 15A-145.7.

Editor’s Note.

Session Laws 2018-72, s. 7, made this section effective December 1, 2018, and applicable to offenses committed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, lists sections throughout the North Carolina General Statutes in which “Department of Adult Correction” is substituted for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety.” However, the reference to “Division of Adult Correction and Juvenile Justice” in subsection (c) was not among the provisions identified in s. 19C.9(s) for substitution. However, the reference was changed pursuant to the authority of the Revisor pursuant to Session Laws 2021-180, s. 19C.9(s).

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021’.”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in subsection (c). For effective date and applicability, see editor's note.

§ 15A-145.7. Expunction of records for first offenders under 20 years of age at the time of the offense of certain offenses. [Effective January 1, 2023]

  1. Whenever a person is discharged, and the proceedings against the person dismissed, pursuant to G.S. 14-277.8, and the person was under 20 years of age at the time of the offense, the person may apply to the court of the county where charged for an order to expunge from all official records, other than the confidential files retained under G.S. 15A-151, all recordation relating to the person’s arrest, indictment or information, trial, finding of guilty, and dismissal and discharge pursuant to this section. The applicant shall attach to the petition the following:
    1. An affidavit by the petitioner that he or she has been of good behavior during the period of probation since the decision to defer further proceedings on the offense in question and has not been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state;
    2. Verified affidavits by two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which he or she lives, and that the petitioner’s character and reputation are good;
    3. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.
  2. No person as to whom such order was entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person’s failures to recite or acknowledge such arrest, or indictment or information, or trial in response to any inquiry made of him or her for any purpose. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
  3. The court shall also order that all records of the proceeding be expunged from the records of the court and direct all law enforcement agencies, the Department of Adult Correction, the Division of Motor Vehicles, and any other State and local government agencies identified by the petitioner as bearing records of the same to expunge their records of the proceeding. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  4. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

The judge to whom the petition is presented is authorized to call upon a probation officer for any additional investigation or verification of the petitioner’s conduct during the probationary period deemed desirable.

If the court determines, after hearing, that such person was discharged and the proceedings against him or her dismissed and that the person was under 20 years of age at the time of the offense, it shall enter such order. The effect of such order shall be to restore such person in the contemplation of the law to the status the person occupied before such arrest or indictment or information.

History. 2018-72, s. 4; 2021-180, s. 19C.9(s).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 15A-145.7.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor’s Note.

Session Laws 2018-72, s. 7, made this section effective December 1, 2018, and applicable to offenses committed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, lists sections throughout the North Carolina General Statutes in which “Department of Adult Correction” is substituted for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety.” However, the reference to “Division of Adult Correction and Juvenile Justice” in subsection (c) was not among the provisions identified in s. 19C.9(s) for substitution. However, the reference was changed pursuant to the authority of the Revisor pursuant to Session Laws 2021-180, s. 19C.9(s).

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021’.”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in subsection (c). For effective date and applicability, see editor's note.

§ 15A-145.8. Expunction of records when charges are remanded to district court for juvenile adjudication.

  1. Upon remand pursuant to G.S. 7B-2200.5(d), the court shall order expunction of all remanded charges. No person as to whom such an order has been entered shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of his or her failure to recite or acknowledge any expunged entries concerning apprehension or trial.
  2. The court shall also order the expunction of DNA records when the person’s charges have been remanded to district court for juvenile adjudication and the person’s DNA record or profile has been included in the State DNA Database and the person’s DNA sample is stored in the State DNA Databank as a result of the charges that were remanded. The order of expungement shall include the name and address of the defendant and the defendant’s attorney and shall direct the North Carolina State Crime Laboratory to send a letter documenting expungement as required by subsection (c) of this section.
  3. Upon receiving an order of expungement entered pursuant to subsection (b) of this section, the North Carolina State Crime Laboratory shall purge the DNA record and all other identifying information from the State DNA Database and the DNA sample stored in the State DNA Databank covered by the order, except that the order shall not apply to other offenses committed by the individual that qualify for inclusion in the State DNA Database and the State DNA Databank. A letter documenting expungement of the DNA record and destruction of the DNA sample shall be sent by the North Carolina State Crime Laboratory to the defendant and the defendant’s attorney at the address specified by the court in the order of expungement.
  4. Upon order of expungement, the clerk shall send a certified copy of the expungement order to the defendant, the defendant’s attorney, the Administrative Office of the Courts, and the State and local agencies listed in G.S. 15A-150(b). An agency receiving a certified copy of an order under this subsection shall delete any public records made as a result of the charges that have been remanded to district court for juvenile adjudication, in accordance with G.S. 15A-150. Any records related to the juvenile adjudication shall not be deleted but shall be maintained as confidential records pursuant to Article 30 of Chapter 7B of the General Statutes.

History. 2019-186, s. 11; 2019-243, s. 21(a).

Editor’s Note.

Session Laws 2019-186, s. 12, made this section effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-243, s. 21(b), made the amendment to subsections (b) and (d) of this section by Session Laws 2019-243, s. 21(a), effective December 1, 2019, and applicable to offenses committed on or after that date and expungements ordered on or after that date.

Effect of Amendments.

Session Laws 2019-243, s. 21(a), in the first sentence of subsection (b), substituted “charges have been remanded to district court for juvenile adjudication” for “case has been dismissed by the trial court” and substituted “charges that were remanded” for “case that was dismissed”; and rewrote subsection (d), which read: “Upon order of expungement, the clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150 and forward the order to the Administrative Office of the Courts.” For effective date and applicability, see editor’s note.

§ 15A-145.8A. Expunction of records for offenders under the age of 18 at the time of commission of certain misdemeanors and felonies upon completion of the sentence. [Effective until January 1, 2023]

  1. A person, the district attorney, or an attorney at the request of a person eligible for expunction under this section, may file, in the court of the county where the person was convicted, a petition for expunction from the person’s criminal record of any misdemeanor or Class H or I felony not excluded by subsection (b) of this section if the offense was committed prior to December 1, 2019, and while the person was less than 18 years of age, but at least 16 years of age. The petition shall not be filed until (i) any active sentence, period of probation, and post-release supervision ordered for the offense has been served and (ii) the person has no restitution orders for the offense or outstanding civil judgments representing amounts ordered for restitution for the offense.
  2. An offense is not eligible for expunction under this section if it is (i) a violation of the motor vehicle laws under Chapter 20 of the General Statutes, including any offense involving impaired driving as defined in G.S. 20-4.01(24a) or (ii) an offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register.
  3. If the petition was not filed by the district attorney, the petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 30 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition. The district attorney shall make his or her best efforts to contact the victim, if any, to notify the victim of the request for expunction prior to the date of the hearing. Upon request by the victim, the victim has a right to be present at any hearing on the petition for expunction and the victim’s views and concerns shall be considered by the court at such hearing.
  4. If the court, after hearing, finds that (i) the offense was a misdemeanor or Class H or I felony eligible for expunction under this section, (ii) the offense was committed prior to December 1, 2019, and while the person was less than 18 years of age, but at least 16 years of age, (iii) any active sentence, period of probation, and post-release supervision ordered for the offense was completed, and (iv) the person has no restitution orders for the offense or outstanding civil judgments representing amounts ordered for restitution for the offense, the court shall order that the person be restored, in the contemplation of the law, to the status the person occupied before such arrest or indictment or information, and that the record be expunged from the records of the court. A person convicted of multiple offenses shall be eligible to have those convictions expunged pursuant to this section.
  5. Any petition for expunction under this section shall be on a form approved by the Administrative Office of the Courts and shall be filed with the clerk of superior court in the county where the person was convicted. Upon order of expunction, the clerk shall forward the order to the Administrative Office of the Courts.
  6. No person as to whom such order has been entered shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge such arrest, or indictment, information, or trial, or response to any inquiry made of the person for any purpose.
  7. The court shall also order that the conviction be expunged from the records of the court. The court shall direct all law enforcement agencies, the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the petitioner’s conviction. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  8. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

History. 2020-35, s. 1(a); 2021-118, s. 2.

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 15A-145.8A.

Editor’s Note.

Session Laws 2020-35, s. 1(a) enacted this section as G.S. 15A-148.8. It was renumbered as G.S. 15A-145.8A at the direction of the Revisor of Statutes.

Session Laws 2020-35, s. 1(b) made this section effective December 1, 2019, and applicable to offenses committed before that date, and further provides: “The Administrative Office of the Courts shall develop and disseminate the forms required by this section no later than September 1, 2020.”

Session Laws 2021-118, s. 5, made the substitution of “A person, the district attorney, or an attorney at the request of a person eligible for expunction under this section,” for “A person or the district attorney” in subsection (a) of this section by Session Laws 2021-118, s. 2, effective December 1, 2021, and applicable to petitions filed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021’.”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2021-118, s. 2, substituted “A person, the district attorney, or an attorney at the request of a person eligible for expunction under this section,” for “A person or the district attorney” in subsection (a). For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the first sentence of subsection (g). For effective date and applicability, see editor's note.

§ 15A-145.8A. Expunction of records for offenders under the age of 18 at the time of commission of certain misdemeanors and felonies upon completion of the sentence. [Effective January 1, 2023]

  1. A person, the district attorney, or an attorney at the request of a person eligible for expunction under this section, may file, in the court of the county where the person was convicted, a petition for expunction from the person’s criminal record of any misdemeanor or Class H or I felony not excluded by subsection (b) of this section if the offense was committed prior to December 1, 2019, and while the person was less than 18 years of age, but at least 16 years of age. The petition shall not be filed until (i) any active sentence, period of probation, and post-release supervision ordered for the offense has been served and (ii) the person has no restitution orders for the offense or outstanding civil judgments representing amounts ordered for restitution for the offense.
  2. An offense is not eligible for expunction under this section if it is (i) a violation of the motor vehicle laws under Chapter 20 of the General Statutes, including any offense involving impaired driving as defined in G.S. 20-4.01(24a) or (ii) an offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register.
  3. If the petition was not filed by the district attorney, the petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 30 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition. The district attorney shall make his or her best efforts to contact the victim, if any, to notify the victim of the request for expunction prior to the date of the hearing. Upon request by the victim, the victim has a right to be present at any hearing on the petition for expunction and the victim’s views and concerns shall be considered by the court at such hearing.
  4. If the court, after hearing, finds that (i) the offense was a misdemeanor or Class H or I felony eligible for expunction under this section, (ii) the offense was committed prior to December 1, 2019, and while the person was less than 18 years of age, but at least 16 years of age, (iii) any active sentence, period of probation, and post-release supervision ordered for the offense was completed, and (iv) the person has no restitution orders for the offense or outstanding civil judgments representing amounts ordered for restitution for the offense, the court shall order that the person be restored, in the contemplation of the law, to the status the person occupied before such arrest or indictment or information, and that the record be expunged from the records of the court. A person convicted of multiple offenses shall be eligible to have those convictions expunged pursuant to this section.
  5. Any petition for expunction under this section shall be on a form approved by the Administrative Office of the Courts and shall be filed with the clerk of superior court in the county where the person was convicted. Upon order of expunction, the clerk shall forward the order to the Administrative Office of the Courts.
  6. No person as to whom such order has been entered shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge such arrest, or indictment, information, or trial, or response to any inquiry made of the person for any purpose.
  7. The court shall also order that the conviction be expunged from the records of the court. The court shall direct all law enforcement agencies, the Department of Adult Correction, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the petitioner’s conviction. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  8. A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

History. 2020-35, s. 1(a); 2021-118, s. 2; 2021-180, s. 19C.9(s).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 15A-145.8A.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor’s Note.

Session Laws 2020-35, s. 1(a) enacted this section as G.S. 15A-148.8. It was renumbered as G.S. 15A-145.8A at the direction of the Revisor of Statutes.

Session Laws 2020-35, s. 1(b) made this section effective December 1, 2019, and applicable to offenses committed before that date, and further provides: “The Administrative Office of the Courts shall develop and disseminate the forms required by this section no later than September 1, 2020.”

Session Laws 2021-118, s. 5, made the substitution of “A person, the district attorney, or an attorney at the request of a person eligible for expunction under this section,” for “A person or the district attorney” in subsection (a) of this section by Session Laws 2021-118, s. 2, effective December 1, 2021, and applicable to petitions filed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021’.”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2021-118, s. 2, substituted “A person, the district attorney, or an attorney at the request of a person eligible for expunction under this section,” for “A person or the district attorney” in subsection (a). For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the first sentence of subsection (g). For effective date and applicability, see editor's note.

§ 15A-145.9. Expunctions of certain offenses committed by human trafficking victims.

  1. Definition. —  For purposes of this section, the following terms apply:
    1. Nonviolent offense. — Any misdemeanor or felony except the following:
      1. A Class A through G felony.
      2. An offense that includes assault as an essential element of the offense.
      3. An offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes, whether or not the person is currently required to register.
      4. Any of the following sex-related or stalking offenses: G.S. 14-27.25(b), 14-27.30(b), 14-190.7, 14-190.8, 14-190.9, 14-202, 14-208.11A, 14-208.18, 14-277.3A, or 14-321.1.
      5. An offense under G.S. 14-12.12(b), 14-12.13, or 14-12.14, or any offense for which punishment was determined pursuant to G.S. 14-3(c).
      6. An offense under G.S. 14-401.16.
      7. A traffic offense.
      8. Any offense that is an attempt to commit an offense described in sub-subdivisions a. through g. of this subdivision.
    2. Trafficking victim. — A person that meets the definition for the term “victim” set forth in G.S. 14-43.10 or a victim of a severe form of trafficking under the federal Trafficking Victims Protection Act (22 U.S.C. § 7102(13)).
  2. Expunction Authorized. —  A person who has been convicted of a nonviolent offense may file a petition in the court of the county where the person was convicted for expunction of the nonviolent offense from the person’s criminal record if the court finds that the person was coerced or deceived into committing the offense as a direct result of having been a trafficking victim.
  3. Petition Requirements. —  The petition shall contain all of the following:
    1. An affidavit by the petitioner that the petitioner is a victim of human trafficking and was coerced or deceived into committing the offense as a direct result of their status as a trafficking victim.
    2. A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.
    3. An application on a form approved by the Administrative Office of the Courts requesting and authorizing a search by the Department of Public Safety for any outstanding warrants. The application shall be filed with the clerk of superior court. The clerk of superior court shall forward the application to the Department of Public Safety, which shall conduct the search and report its findings to the court.
    4. An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.
  4. Service of Petition. —  The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 30 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition.
  5. Issues for Consideration. —  The court in which the petition was filed may take the following steps and may consider the following issues in rendering a decision upon a petition for expunction of records of an offense under this section:
    1. Call upon a probation officer for additional investigation or verification of the petitioner’s conduct during the period since the date of conviction of the offense in question.
    2. Review any other information the court deems relevant, including, but not limited to, affidavits or other testimony provided by law enforcement officers, district attorneys, or licensed social workers.
  6. Restoration of Status. —  The court shall order that the person be restored, in the contemplation of the law, to the status the person occupied before the arrest or indictment or information if the court finds all of the following after a hearing:
    1. The criteria set out in subsection (b) of this section are satisfied.
    2. The petitioner has no outstanding warrants.
    3. The petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner.
  7. Effect. —  No person as to whom an order has been entered pursuant to subsection (f) of this section shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving false statement by reason of that person’s failure to recite or acknowledge the arrest, indictment, information, trial, or conviction. Persons required by State law to obtain a criminal history record check on a prospective employee shall not be deemed to have knowledge of any convictions expunged under this section.
  8. Law Enforcement Certification. —  Persons pursuing certification under the provisions of Article 1 of Chapter 17C of 17E of the General Statutes, however, shall disclose all convictions to the certifying Commission regardless of whether or not the convictions were expunged pursuant to the provisions of this section.
  9. Records Expunged. —  The court shall also order that the conviction of the offenses be expunged from the records of the court and direct all law enforcement agencies bearing record of the same to expunge their records of the conviction. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.
  10. Additional Records Expunged. —  Any other applicable State or local government agency shall expunge from its records entries made as a result of the conviction ordered expunged under this section. The agency shall also reverse any administrative actions taken against a person whose record is expunged under this section as a result of the charges or convictions expunged. This subsection shall not apply to the Department of Justice for DNA records and samples stored in the State DNA Database and the State DNA Databank.
  11. Costs Waived. —  The costs of expunging the records shall not be taxed against the petitioner.

History. 2019-158, s. 4(b); 2021-180, s. 16.4(a).

Editor’s Note.

Session Laws 2019-158, s. 4(e), made this section effective December 1, 2019, and applicable to petitions filed on or after that date.

Session Laws 2019-158, s. 7 is a severability clause.

Session Laws 2021-180, s. 16.4(b), made subsection (k) of this section, as added by Session Laws 2021-180, s. 16.4(a), effective December 1, 2021, and applicable to expunction costs incurred on or after that date.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021’.”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2021-180, s. 16.4(a), added subsection (k). For effective date and applicability, see editor's note.

§ 15A-146. Expunction of records when charges are dismissed or there are findings of not guilty. [Effective until January 1, 2023]

  1. Dismissal of Single Charge. —  If any person is charged with a crime, either a misdemeanor or a felony, or was charged with an infraction under G.S. 18B-302(i) prior to December 1, 1999, and the charge is dismissed, that person or the district attorney may petition the court of the county where the charge was brought for an order to expunge from all official records any entries relating to that person’s apprehension or trial. Upon a finding that the sole charge was dismissed, the court shall order the expunction.
  2. Multiple Dismissals. —  If a person is charged with multiple offenses and any charges are dismissed, then that person or the district attorney may petition to have each of the dismissed charges expunged. If the court finds that all of the charges were dismissed, the court shall order the expunction. If the court finds that any charge resulted in a conviction on the day of the dismissal or had not yet reached final disposition, the court may order the expunction of any charge that was dismissed.
  3. Finding of Not Guilty. —  If any person is charged with one or more crimes, either a misdemeanor or a felony, or an infraction under G.S. 18B-302(i) prior to December 1, 1999, and a finding of not guilty or not responsible is entered for any or all of the charges, that person or the district attorney may petition the court of the county where the charge was brought for an order to expunge from all official records any entries relating to apprehension or trial of that crime. Upon determining that a finding of not guilty or not responsible was entered and all related criminal charges have reached final disposition, the court shall order the expunction of any charges disposed by a finding of not guilty or not responsible.
  4. Effect of Expunction. —  Except as provided in G.S. 15A-151.5(b)(5), no person as to whom an order has been entered by a court or by operation of law under this section shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of the person’s failure to recite or acknowledge any expunged entries concerning apprehension or trial.
  5. Dismissal, Not Guilty, or Not Responsible on or After December 1, 2021.—  If any person is charged with a crime, either a misdemeanor or a felony, or is charged with an infraction, the charges in the case are expunged by operation of law if all of the following apply:
    1. All charges in the case are disposed on or after December 1, 2021.
    2. All charges in the case are dismissed without leave, dismissed by the court, or result in a finding of not guilty or not responsible.Notwithstanding the provisions of this subsection, no case with a felony charge that was dismissed pursuant to a plea agreement will be expunged pursuant to this subsection. Prior to December 1, 2021, the Administrative Office of the Courts shall develop and have in place procedures to automate the expunction of records pursuant to this subsection.
  6. Notwithstanding the provisions of subsections (a), (a1), and (a2) of this section, an arresting agency may maintain investigative records related to a charge that has been expunged pursuant to this section.
  7. Hearing. —  Except as otherwise specifically provided in this section, a court may grant a petition for expunction under this section without a hearing.
  8. The court may also order that the said entries, including civil revocations of drivers licenses as a result of the underlying charge, shall be expunged from the records of the court, and direct all law-enforcement agencies, the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the entries, including civil revocations of drivers licenses as a result of the underlying charge being expunged. This subsection does not apply to civil or criminal charges based upon the civil revocation, or to civil revocations under G.S. 20-16.2. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150. The clerk shall forward a certified copy of the order to the Division of Motor Vehicles for the expunction of a civil revocation provided the underlying criminal charge is also expunged. The civil revocation of a drivers license shall not be expunged prior to a final disposition of any pending civil or criminal charge based upon the civil revocation. The costs of expunging the records, as required under G.S. 15A-150, shall not be taxed against the petitioner.
  9. Any person entitled to expungement under this section may also apply to the court for an order expunging DNA records when the person’s case has been dismissed by the trial court and the person’s DNA record or profile has been included in the State DNA Database and the person’s DNA sample is stored in the State DNA Databank. A copy of the application for expungement of the DNA record or DNA sample shall be served on the district attorney for the judicial district in which the felony charges were brought not less than 20 days prior to the date of the hearing on the application. If the application for expungement is granted, a certified copy of the trial court’s order dismissing the charges shall be attached to an order of expungement. The order of expungement shall include the name and address of the defendant and the defendant’s attorney and shall direct the North Carolina State Crime Laboratory to send a letter documenting expungement as required by subsection (b2) of this section.
  10. Upon receiving an order of expungement entered pursuant to subsection (b1) of this section, the North Carolina State Crime Laboratory shall purge the DNA record and all other identifying information from the State DNA Database and the DNA sample stored in the State DNA Databank covered by the order, except that the order shall not apply to other offenses committed by the individual that qualify for inclusion in the State DNA Database and the State DNA Databank. A letter documenting expungement of the DNA record and destruction of the DNA sample shall be sent by the North Carolina State Crime Laboratory to the defendant and the defendant’s attorney at the address specified by the court in the order of expungement.
  11. Any petition required to be filed for expungement under this section shall be on a form approved by the Administrative Office of the Courts and be filed with the clerk of superior court. Excluding any expunction granted by operation of law pursuant to subsection (a4) of this section, upon order of expungement by a court, the clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150 and forward the petition to the Administrative Office of the Courts.
  12. A person charged with a crime that is dismissed pursuant to compliance with a deferred prosecution agreement or the terms of a conditional discharge and who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

History. 1979, c. 61; 1985, c. 636, ss. 1-7; 1991, c. 326, s. 1; 1997-138, s. 1; 1999-406, s. 9; 2001-108, s. 2; 2001-282, s. 1; 2002-126, s. 29A.5(c); 2005-452, s. 1; 2007-509, s. 2; 2009-510, s. 5(a), (b); 2009-577, ss. 3.1, 8, 9; 2011-145, s. 19.1(h); 2012-191, s. 4; 2013-360, ss. 17.6(e), 18B.16(f); 2014-100, s. 17.1(o); 2014-119, s. 2(d); 2017-186, s. 2(tt); 2017-195, s. 1; 2020-35, s. 3(a).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 15A-146.

Editor’s Note.

Session Laws 1999-406, s. 18, states that this act, which amended the first sentence of subsection (a), does not obligate the General Assembly to appropriate additional funds, and that this act shall be implemented with funds available or appropriated to the Department of Transportation and the Administrative Office of the Courts.

Session Laws 2020-35, s. 3(c), provides: “By October 1, 2021, the Department of Public Safety, in conjunction with the Department of Justice and the Administrative Office of the Courts, shall jointly develop and submit a report to the Joint Legislative Oversight Committee on Justice and Public Safety on recommendations and the costs involved to automate the expunction process for all State agencies with records subject to expunction orders and ensure the efficacy of the record expunction.”

Session Laws 2020-35, s. 3(d), provides: “Subsections (a) through (a3) and (a5) of G.S. 15A-146, as amended by subsection (a) of this section, become effective December 1, 2020, and apply to petitions filed on or after that date. Subsection (a4) of G.S. 15A-146, as amended [added] by subsection (a) of this section, becomes effective on December 1, 2021, and applies to charges disposed of on or after that date. The remainder of this section is effective when it becomes law [June 25, 2020].”

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2005-452, s. 1, effective October 1, 2005, added subsection (a1).

Session Laws 2007-509, s. 2, effective October 1, 2007, in subsection (b), in the first sentence, inserted “including civil revocations of drivers licenses as a result of the underlying charge,” inserted “including the Division of Motor Vehicles,” inserted “including civil revocations of drivers licenses as a result of the underlying charge being expunged” at the end, and added the second, fourth, and fifth sentences.

Session Laws 2009-510, s. 5(a) and (b), effective October 1, 2010, in subsection (b), substituted “the Department of Correction [now the Division of Adult Correction of the Department of Public Safety], the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as” for “including the Division of Motor Vehicles” in the first sentence, substituted “shall notify State and local agencies of the court’s order as provided in G.S. 15A-150” for “shall forward a certified copy of the order to the sheriff, chief of police, or other arresting agency” in the third sentence, deleted the former fourth sentence, which read: “The sheriff, chief or head of such other arresting agency shall then transmit the copy of the order with the form supplied by the State Bureau of Investigation to the State Bureau of Investigation, and the State Bureau of Investigation shall forward the order to the Federal Bureau of Investigation” and substituted “the records, as required under G.S. 15A-150” for “these records” in the last sentence; and rewrote subsection (c).

Session Laws 2009-577, ss. 3.1, 8, and 9, effective December 1, 2009, and applicable to petitions for expunctions filed on or after that date, substituted “G.S. 15A-145, G.S. 15A-145.1, 15A-145.2, or 15A-145.3” for “G.S. 15A-145, or G.S. 90-96” in the second sentence of subsection (a); and, in the fifth sentence of subsection (a1), inserted the (i)-(iii) clause designations, inserted “or that any previous expungement received under this subsection occurred prior to October 1, 2005 and was for an offense that occurred within the same 12-month period of time, or was dismissed or findings made at the same term of court, as the offenses that are the subject of the current application”, and substituted “G.S. 15A-145, 15A-145.1, 15A-145.2, or 15A-145.3” for “G.S. 15A-145 or G.S. 90-96”.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsection (b).

Session Laws 2012-191, s. 4, effective December 1, 2012, in subsections (a) and (a1), substituted “15A-145.3, 15A-145.4, or 15A-145.5” for “or 15A-145.3”; and made a minor stylistic change in subsection (a). For applicability, see Editor’s note.

Session Laws 2013-360, s. 17.6(e), effective July 1, 2013, substituted “North Carolina State Crime Laboratory” for “SBI” throughout the section.

Session Laws 2013-360, s. 18B.16(f), effective September 1, 2013, added subsection (d). For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” in subsection (d).

Session Laws 2014-119, s. 2(d), effective December 1, 2014, inserted “or the terms of a conditional discharge” near the beginning of subsection (d).

Session Laws 2017-186, s. 2(tt), effective December 1, 2017, inserted “and Juvenile Justice” in the first sentence of subsection (b).

Session Laws 2017-195, s. 1, effective December 1, 2017, rewrote subsections (a) and (a1); added subsection (a2); inserted subsection designation (a3), inserted “under this section” therein; and rewrote subsection (c) which formerly read: “The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.” For applicability, see editor’s note.

Session Laws 2020-35, s. 3(a), rewrote subsections (a), (a1), and (a2); in subsection (a)(3), added the exception at the beginning, inserted “by a court or by operation of law” and made a minor stylistic change; added subsections (a4), (a5) and (a6); and, in subsection (c), inserted “required to be filed” in the first sentence, and substituted “Excluding any expunction granted by operation of law pursuant to subsection (a4) of this section, upon order of expungement by a court” for “Upon order of expungement” in the second sentence. For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the first sentence of subsection (b). For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Automatic (Expunctions) for the People: For a Court-Initiated Expunction Right in North Carolina for Charges Not Resulting in a Conviction,” see 96 N.C.L. Rev. 573 (2018).

CASE NOTES

Expungement Only Available for Dismissed Charge. —

Since an offender was convicted of assault inflicting serious bodily injury at the same time that his assault and battery charge was dismissed, he was eligible for expungement under G.S. 15A-146 only for the assault and battery charge, and an original order should have been amended to reflect expungement only for the assault and battery. In re Expungement for Kearney, 174 N.C. App. 213, 620 S.E.2d 276, 2005 N.C. App. LEXIS 2294 (2005).

Expungement of Multiple Offenses. —

Trial court improperly expunged, pursuant to G.S. 15A-146(a), numerous unrelated arrests that occurred over a period of years from the applicant’s record; the plain language of G.S. 15A-146(a) allowed only one expungement and did not allow expungements of multiple unrelated offenses occurring over a number of years. In re Robinson, 172 N.C. App. 272, 615 S.E.2d 884, 2005 N.C. App. LEXIS 1581 (2005).

OPINIONS OF ATTORNEY GENERAL

Expungement of Multiple Offenses. — Where a person is charged or convicted of several misdemeanor offenses, and the charges are not consolidated for trial and judgment, nor arise from the same transaction or occurrence, the court may not order an expungement of the multiple offenses pursuant to G.S. 15A-145 and this section. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (October 13, 1995).

Expungement of Multiple Offenses. — An expungement should only be allowed for a singular offense and not for multiple offenses occurring over a period of time. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (October 13, 1995).

Construction. — G.S. 15A-145 and this section which prescribe procedures for expunction of criminal records, operate as exceptions to the general prohibition to the alteration of records. Thus, the statutes should be strictly construed. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (October 13, 1995).

This Section Does Not Apply to Records of Civil Drivers License Revocations Maintained by Division of Motor Vehicles. — G.S. 15A-146, which prescribes procedures for expunction of criminal records, does not apply to records of civil drivers license revocations maintained by the Division of Motor Vehicles and, therefore, does not require the Division of Motor Vehicles to expunge records of a 30-day drivers license revocation under G.S. 20-16.5 based on the same operation of a vehicle that gave rise to a criminal charge against the driver which is subsequently dismissed. See opinion of Attorney General to Mr. Mike Bryant, Director, Driver License Section, N.C. Division of Motor Vehicles, (6/13/2001).

§ 15A-146. Expunction of records when charges are dismissed or there are findings of not guilty. [Effective January 1, 2023]

  1. Dismissal of Single Charge. —  If any person is charged with a crime, either a misdemeanor or a felony, or was charged with an infraction under G.S. 18B-302(i) prior to December 1, 1999, and the charge is dismissed, that person or the district attorney may petition the court of the county where the charge was brought for an order to expunge from all official records any entries relating to that person’s apprehension or trial. Upon a finding that the sole charge was dismissed, the court shall order the expunction.
  2. Multiple Dismissals. —  If a person is charged with multiple offenses and any charges are dismissed, then that person or the district attorney may petition to have each of the dismissed charges expunged. If the court finds that all of the charges were dismissed, the court shall order the expunction. If the court finds that any charge resulted in a conviction on the day of the dismissal or had not yet reached final disposition, the court may order the expunction of any charge that was dismissed.
  3. Finding of Not Guilty. —  If any person is charged with one or more crimes, either a misdemeanor or a felony, or an infraction under G.S. 18B-302(i) prior to December 1, 1999, and a finding of not guilty or not responsible is entered for any or all of the charges, that person or the district attorney may petition the court of the county where the charge was brought for an order to expunge from all official records any entries relating to apprehension or trial of that crime. Upon determining that a finding of not guilty or not responsible was entered and all related criminal charges have reached final disposition, the court shall order the expunction of any charges disposed by a finding of not guilty or not responsible.
  4. Effect of Expunction. —  Except as provided in G.S. 15A-151.5(b)(5), no person as to whom an order has been entered by a court or by operation of law under this section shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of the person’s failure to recite or acknowledge any expunged entries concerning apprehension or trial.
  5. Dismissal, Not Guilty, or Not Responsible on or After December 1, 2021. —   If any person is charged with a crime, either a misdemeanor or a felony, or is charged with an infraction, the charges in the case are expunged by operation of law if all of the following apply:
    1. All charges in the case are disposed on or after December 1, 2021.
    2. All charges in the case are dismissed without leave, dismissed by the court, or result in a finding of not guilty or not responsible.
  6. Notwithstanding the provisions of subsections (a), (a1), and (a2) of this section, an arresting agency may maintain investigative records related to a charge that has been expunged pursuant to this section.
  7. Hearing. —  Except as otherwise specifically provided in this section, a court may grant a petition for expunction under this section without a hearing.
  8. The court may also order that the said entries, including civil revocations of drivers licenses as a result of the underlying charge, shall be expunged from the records of the court, and direct all law-enforcement agencies, the Department of Adult Correction, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the entries, including civil revocations of drivers licenses as a result of the underlying charge being expunged. This subsection does not apply to civil or criminal charges based upon the civil revocation, or to civil revocations under G.S. 20-16.2. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150. The clerk shall forward a certified copy of the order to the Division of Motor Vehicles for the expunction of a civil revocation provided the underlying criminal charge is also expunged. The civil revocation of a drivers license shall not be expunged prior to a final disposition of any pending civil or criminal charge based upon the civil revocation. The costs of expunging the records, as required under G.S. 15A-150, shall not be taxed against the petitioner.
  9. Any person entitled to expungement under this section may also apply to the court for an order expunging DNA records when the person’s case has been dismissed by the trial court and the person’s DNA record or profile has been included in the State DNA Database and the person’s DNA sample is stored in the State DNA Databank. A copy of the application for expungement of the DNA record or DNA sample shall be served on the district attorney for the judicial district in which the felony charges were brought not less than 20 days prior to the date of the hearing on the application. If the application for expungement is granted, a certified copy of the trial court’s order dismissing the charges shall be attached to an order of expungement. The order of expungement shall include the name and address of the defendant and the defendant’s attorney and shall direct the North Carolina State Crime Laboratory to send a letter documenting expungement as required by subsection (b2) of this section.
  10. Upon receiving an order of expungement entered pursuant to subsection (b1) of this section, the North Carolina State Crime Laboratory shall purge the DNA record and all other identifying information from the State DNA Database and the DNA sample stored in the State DNA Databank covered by the order, except that the order shall not apply to other offenses committed by the individual that qualify for inclusion in the State DNA Database and the State DNA Databank. A letter documenting expungement of the DNA record and destruction of the DNA sample shall be sent by the North Carolina State Crime Laboratory to the defendant and the defendant’s attorney at the address specified by the court in the order of expungement.
  11. Any petition required to be filed for expungement under this section shall be on a form approved by the Administrative Office of the Courts and be filed with the clerk of superior court. Excluding any expunction granted by operation of law pursuant to subsection (a4) of this section, upon order of expungement by a court, the clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150 and forward the petition to the Administrative Office of the Courts.
  12. A person charged with a crime that is dismissed pursuant to compliance with a deferred prosecution agreement or the terms of a conditional discharge and who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection are payable to the Administrative Office of the Courts. The clerk of superior court shall remit one hundred twenty-two dollars and fifty cents ($122.50) of each fee to the North Carolina Department of Public Safety for the costs of criminal record checks performed in connection with processing petitions for expunctions under this section. The remaining fifty-two dollars and fifty cents ($52.50) of each fee shall be retained by the Administrative Office of the Courts and used to pay the costs of processing petitions for expunctions under this section. This subsection does not apply to petitions filed by an indigent.

Notwithstanding the provisions of this subsection, no case with a felony charge that was dismissed pursuant to a plea agreement will be expunged pursuant to this subsection. Prior to December 1, 2021, the Administrative Office of the Courts shall develop and have in place procedures to automate the expunction of records pursuant to this subsection.

History. 1979, c. 61; 1985, c. 636, ss. 1-7; 1991, c. 326, s. 1; 1997-138, s. 1; 1999-406, s. 9; 2001-108, s. 2; 2001-282, s. 1; 2002-126, s. 29A.5(c); 2005-452, s. 1; 2007-509, s. 2; 2009-510, s. 5(a), (b); 2009-577, ss. 3.1, 8, 9; 2011-145, s. 19.1(h); 2012-191, s. 4; 2013-360, ss. 17.6(e), 18B.16(f); 2014-100, s. 17.1(o); 2014-119, s. 2(d); 2017-186, s. 2(tt); 2017-195, s. 1; 2020-35, s. 3(a); 2021-180, s. 19C.9(s).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 15A-146.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor’s Note.

Session Laws 1999-406, s. 18, states that this act, which amended the first sentence of subsection (a), does not obligate the General Assembly to appropriate additional funds, and that this act shall be implemented with funds available or appropriated to the Department of Transportation and the Administrative Office of the Courts.

Session Laws 2020-35, s. 3(c), provides: “By October 1, 2021, the Department of Public Safety, in conjunction with the Department of Justice and the Administrative Office of the Courts, shall jointly develop and submit a report to the Joint Legislative Oversight Committee on Justice and Public Safety on recommendations and the costs involved to automate the expunction process for all State agencies with records subject to expunction orders and ensure the efficacy of the record expunction.”

Session Laws 2020-35, s. 3(d), provides: “Subsections (a) through (a3) and (a5) of G.S. 15A-146, as amended by subsection (a) of this section, become effective December 1, 2020, and apply to petitions filed on or after that date. Subsection (a4) of G.S. 15A-146, as amended [added] by subsection (a) of this section, becomes effective on December 1, 2021, and applies to charges disposed of on or after that date. The remainder of this section is effective when it becomes law [June 25, 2020].”

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2005-452, s. 1, effective October 1, 2005, added subsection (a1).

Session Laws 2007-509, s. 2, effective October 1, 2007, in subsection (b), in the first sentence, inserted “including civil revocations of drivers licenses as a result of the underlying charge,” inserted “including the Division of Motor Vehicles,” inserted “including civil revocations of drivers licenses as a result of the underlying charge being expunged” at the end, and added the second, fourth, and fifth sentences.

Session Laws 2009-510, s. 5(a) and (b), effective October 1, 2010, in subsection (b), substituted “the Department of Correction [now the Division of Adult Correction of the Department of Public Safety], the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as” for “including the Division of Motor Vehicles” in the first sentence, substituted “shall notify State and local agencies of the court’s order as provided in G.S. 15A-150” for “shall forward a certified copy of the order to the sheriff, chief of police, or other arresting agency” in the third sentence, deleted the former fourth sentence, which read: “The sheriff, chief or head of such other arresting agency shall then transmit the copy of the order with the form supplied by the State Bureau of Investigation to the State Bureau of Investigation, and the State Bureau of Investigation shall forward the order to the Federal Bureau of Investigation” and substituted “the records, as required under G.S. 15A-150” for “these records” in the last sentence; and rewrote subsection (c).

Session Laws 2009-577, ss. 3.1, 8, and 9, effective December 1, 2009, and applicable to petitions for expunctions filed on or after that date, substituted “G.S. 15A-145, G.S. 15A-145.1, 15A-145.2, or 15A-145.3” for “G.S. 15A-145, or G.S. 90-96” in the second sentence of subsection (a); and, in the fifth sentence of subsection (a1), inserted the (i)-(iii) clause designations, inserted “or that any previous expungement received under this subsection occurred prior to October 1, 2005 and was for an offense that occurred within the same 12-month period of time, or was dismissed or findings made at the same term of court, as the offenses that are the subject of the current application”, and substituted “G.S. 15A-145, 15A-145.1, 15A-145.2, or 15A-145.3” for “G.S. 15A-145 or G.S. 90-96”.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsection (b).

Session Laws 2012-191, s. 4, effective December 1, 2012, in subsections (a) and (a1), substituted “15A-145.3, 15A-145.4, or 15A-145.5” for “or 15A-145.3”; and made a minor stylistic change in subsection (a). For applicability, see Editor’s note.

Session Laws 2013-360, s. 17.6(e), effective July 1, 2013, substituted “North Carolina State Crime Laboratory” for “SBI” throughout the section.

Session Laws 2013-360, s. 18B.16(f), effective September 1, 2013, added subsection (d). For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” in subsection (d).

Session Laws 2014-119, s. 2(d), effective December 1, 2014, inserted “or the terms of a conditional discharge” near the beginning of subsection (d).

Session Laws 2017-186, s. 2(tt), effective December 1, 2017, inserted “and Juvenile Justice” in the first sentence of subsection (b).

Session Laws 2017-195, s. 1, effective December 1, 2017, rewrote subsections (a) and (a1); added subsection (a2); inserted subsection designation (a3), inserted “under this section” therein; and rewrote subsection (c) which formerly read: “The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150.” For applicability, see editor’s note.

Session Laws 2020-35, s. 3(a), rewrote subsections (a), (a1), and (a2); in subsection (a)(3), added the exception at the beginning, inserted “by a court or by operation of law” and made a minor stylistic change; added subsections (a4), (a5) and (a6); and, in subsection (c), inserted “required to be filed” in the first sentence, and substituted “Excluding any expunction granted by operation of law pursuant to subsection (a4) of this section, upon order of expungement by a court” for “Upon order of expungement” in the second sentence. For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the first sentence of subsection (b). For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Automatic (Expunctions) for the People: For a Court-Initiated Expunction Right in North Carolina for Charges Not Resulting in a Conviction,” see 96 N.C.L. Rev. 573 (2018).

CASE NOTES

Expungement Only Available for Dismissed Charge. —

Since an offender was convicted of assault inflicting serious bodily injury at the same time that his assault and battery charge was dismissed, he was eligible for expungement under G.S. 15A-146 only for the assault and battery charge, and an original order should have been amended to reflect expungement only for the assault and battery. In re Expungement for Kearney, 174 N.C. App. 213, 620 S.E.2d 276, 2005 N.C. App. LEXIS 2294 (2005).

Expungement of Multiple Offenses. —

Trial court improperly expunged, pursuant to G.S. 15A-146(a), numerous unrelated arrests that occurred over a period of years from the applicant’s record; the plain language of G.S. 15A-146(a) allowed only one expungement and did not allow expungements of multiple unrelated offenses occurring over a number of years. In re Robinson, 172 N.C. App. 272, 615 S.E.2d 884, 2005 N.C. App. LEXIS 1581 (2005).

OPINIONS OF ATTORNEY GENERAL

Expungement of Multiple Offenses. — Where a person is charged or convicted of several misdemeanor offenses, and the charges are not consolidated for trial and judgment, nor arise from the same transaction or occurrence, the court may not order an expungement of the multiple offenses pursuant to G.S. 15A-145 and this section. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (October 13, 1995).

Expungement of Multiple Offenses. — An expungement should only be allowed for a singular offense and not for multiple offenses occurring over a period of time. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (October 13, 1995).

Construction. — G.S. 15A-145 and this section which prescribe procedures for expunction of criminal records, operate as exceptions to the general prohibition to the alteration of records. Thus, the statutes should be strictly construed. See opinion of Attorney General to James J. Coman, Director, State Bureau of Investigation, — N.C.A.G. — (October 13, 1995).

This Section Does Not Apply to Records of Civil Drivers License Revocations Maintained by Division of Motor Vehicles. — G.S. 15A-146, which prescribes procedures for expunction of criminal records, does not apply to records of civil drivers license revocations maintained by the Division of Motor Vehicles and, therefore, does not require the Division of Motor Vehicles to expunge records of a 30-day drivers license revocation under G.S. 20-16.5 based on the same operation of a vehicle that gave rise to a criminal charge against the driver which is subsequently dismissed. See opinion of Attorney General to Mr. Mike Bryant, Director, Driver License Section, N.C. Division of Motor Vehicles, (6/13/2001).

§ 15A-147. Expunction of records when charges are dismissed or there are findings of not guilty as a result of identity theft or mistaken identity. [Effective until January 1, 2023]

  1. If any person is named in a charge for an infraction or a crime, either a misdemeanor or a felony, as a result of another person using the identifying information of the named person or mistaken identity and a finding of not guilty is entered, or the conviction is set aside, the named person may petition the court where the charge was last pending on a form approved by the Administrative Office of the Courts supplied by the clerk of court for an order to expunge from all official records any entries relating to the person’s apprehension, charge, or trial. The court, after notice to the district attorney, shall hold a hearing on the petition and, upon finding that the person’s identity was used without permission and the charges were dismissed or the person was found not guilty, the court shall order the expunction.
  2. If any person is named in a charge for an infraction or a crime, either a misdemeanor or a felony, as a result of another person using the identifying information of the named person or mistaken identity, and the charge against the named person is dismissed, the prosecutor or other judicial officer who ordered the dismissal shall provide notice to the court of the dismissal, and the court shall order the expunction of all official records containing any entries relating to the person’s apprehension, charge, or trial.
  3. Any petition for expungement under this section shall be on a form approved by the Administrative Office of the Courts and be filed with the clerk of superior court. Upon order of expungement, the clerk shall forward the petition to the Administrative Office of the Courts.
  4. No person as to whom such an order has been entered under this section shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of the person’s failure to recite or acknowledge any expunged entries concerning apprehension, charge, or trial.
  5. The court shall also order that the said entries shall be expunged from the records of the court and direct all law enforcement agencies, the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the Division of Motor Vehicles, or any other State or local government agencies identified by the petitioner, or the person eligible for automatic expungement under subsection (a1) of this section, as bearing record of the same to expunge their records of the entries. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150. The costs of expunging the records, as required under G.S. 15A-150, shall not be taxed against the petitioner.
  6. The Division of Motor Vehicles shall expunge from its records entries made as a result of the charge or conviction ordered expunged under this section. The Division of Motor Vehicles shall also reverse any administrative actions taken against a person whose record is expunged under this section as a result of the charges or convictions expunged, including the assessment of drivers license points and drivers license suspension or revocation. Notwithstanding any other provision of this Chapter, the Division of Motor Vehicles shall provide to the person whose motor vehicle record is expunged under this section a certified corrected driver history at no cost and shall reinstate at no cost any drivers license suspended or revoked as a result of a charge or conviction expunged under this section.
  7. The Division of Adult Correction and Juvenile Justice of the Department of Public Safety and any other applicable State or local government agency shall expunge its records as provided in G.S. 15A-150. The agency shall also reverse any administrative actions taken against a person whose record is expunged under this section as a result of the charges or convictions expunged. Notwithstanding any other provision of law, the normal fee for any reinstatement of a license or privilege resulting under this section shall be waived.
  8. Any insurance company that charged any additional premium based on insurance points assessed against a policyholder as a result of a charge or conviction that was expunged under this section shall refund those additional premiums to the policyholder upon notification of the expungement.
  9. For purposes of this section, the term “mistaken identity” means the erroneous arrest of a person for a crime as a result of misidentification by a witness or law enforcement, confusion on the part of a witness or law enforcement as to the identity of the person who committed the crime, misinformation provided to law enforcement as to the identity of the person who committed the crime, or some other mistake on the part of a witness or law enforcement as to the identity of the person who committed the crime.

History. 2001-108, s. 1; 2005-414, s. 8; 2009-510, s. 6; 2011-145, s. 19.1(h); 2015-202, s. 1; 2017-186, s. 2(uu); 2017-195, s. 1.

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 15A-147.

Editor’s Note.

Session Laws 2001-108, s. 3, makes this section effective October 1, 2001, and applicable to charges filed before, on, or after the effective date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2005-414, s. 8, effective December 1, 2005, substituted “theft” for “fraud” at the end of the section heading; and deleted “to commit an infraction or crime” preceding “and the charge” in subsection (a).

Session Laws 2009-510, s. 6, effective October 1, 2010, rewrote subsection (c); and, in the first sentence of subsection (e), added “The Department of Correction and” at the beginning and substituted “shall expunge its records as provided in G.S. 15A-150” for “shall expunge from its records entries made as a result of the charge or conviction ordered expunged under this section” at the end of the sentence.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsections (c) and (e).

Session Laws 2015-202, s. 1, effective December 1, 2015, and applicable to charges filed on or after that date, added “or mistaken identity” at the end of the section heading; substituted “person or mistaken identity and a finding” for “person and the charge against the named person is dismissed, a finding” in the first sentence of subsection (a); added subsection (a1); inserted “or the person eligible for automatic expungement under subsection (a1) of this section” near the end of the first sentence of subsection (c); and added subsection (g).

Session Laws 2017-186, s. 2(uu), effective December 1, 2017, inserted “and Juvenile Justice” in the first sentence of subsections (c) and (e).

Session Laws 2017-195, s. 1, effective December 1, 2017, in subsection (a), substituted “named person may petition the court” for “named person may apply by petition or written motion to the court” in the first sentence and deleted “motion or” following “shall hold a hearing on the” in the second sentence; and added subsection (a2). For applicability, see Editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the first sentence of subsections (c) and (e). For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Automatic (Expunctions) for the People: For a Court-Initiated Expunction Right in North Carolina for Charges Not Resulting in a Conviction,” see 96 N.C.L. Rev. 573 (2018).

§ 15A-147. Expunction of records when charges are dismissed or there are findings of not guilty as a result of identity theft or mistaken identity. [Effective January 1, 2023]

  1. If any person is named in a charge for an infraction or a crime, either a misdemeanor or a felony, as a result of another person using the identifying information of the named person or mistaken identity and a finding of not guilty is entered, or the conviction is set aside, the named person may petition the court where the charge was last pending on a form approved by the Administrative Office of the Courts supplied by the clerk of court for an order to expunge from all official records any entries relating to the person’s apprehension, charge, or trial. The court, after notice to the district attorney, shall hold a hearing on the petition and, upon finding that the person’s identity was used without permission and the charges were dismissed or the person was found not guilty, the court shall order the expunction.
  2. If any person is named in a charge for an infraction or a crime, either a misdemeanor or a felony, as a result of another person using the identifying information of the named person or mistaken identity, and the charge against the named person is dismissed, the prosecutor or other judicial officer who ordered the dismissal shall provide notice to the court of the dismissal, and the court shall order the expunction of all official records containing any entries relating to the person’s apprehension, charge, or trial.
  3. Any petition for expungement under this section shall be on a form approved by the Administrative Office of the Courts and be filed with the clerk of superior court. Upon order of expungement, the clerk shall forward the petition to the Administrative Office of the Courts.
  4. No person as to whom such an order has been entered under this section shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of the person’s failure to recite or acknowledge any expunged entries concerning apprehension, charge, or trial.
  5. The court shall also order that the said entries shall be expunged from the records of the court and direct all law enforcement agencies, the Department of Adult Correction, the Division of Motor Vehicles, or any other State or local government agencies identified by the petitioner, or the person eligible for automatic expungement under subsection (a1) of this section, as bearing record of the same to expunge their records of the entries. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150. The costs of expunging the records, as required under G.S. 15A-150, shall not be taxed against the petitioner.
  6. The Division of Motor Vehicles shall expunge from its records entries made as a result of the charge or conviction ordered expunged under this section. The Division of Motor Vehicles shall also reverse any administrative actions taken against a person whose record is expunged under this section as a result of the charges or convictions expunged, including the assessment of drivers license points and drivers license suspension or revocation. Notwithstanding any other provision of this Chapter, the Division of Motor Vehicles shall provide to the person whose motor vehicle record is expunged under this section a certified corrected driver history at no cost and shall reinstate at no cost any drivers license suspended or revoked as a result of a charge or conviction expunged under this section.
  7. The Department of Adult Correction and any other applicable State or local government agency shall expunge its records as provided in G.S. 15A-150. The agency shall also reverse any administrative actions taken against a person whose record is expunged under this section as a result of the charges or convictions expunged. Notwithstanding any other provision of law, the normal fee for any reinstatement of a license or privilege resulting under this section shall be waived.
  8. Any insurance company that charged any additional premium based on insurance points assessed against a policyholder as a result of a charge or conviction that was expunged under this section shall refund those additional premiums to the policyholder upon notification of the expungement.
  9. For purposes of this section, the term “mistaken identity” means the erroneous arrest of a person for a crime as a result of misidentification by a witness or law enforcement, confusion on the part of a witness or law enforcement as to the identity of the person who committed the crime, misinformation provided to law enforcement as to the identity of the person who committed the crime, or some other mistake on the part of a witness or law enforcement as to the identity of the person who committed the crime.

History. 2001-108, s. 1; 2005-414, s. 8; 2009-510, s. 6; 2011-145, s. 19.1(h); 2015-202, s. 1; 2017-186, s. 2(uu); 2017-195, s. 1; 2021-180, s. 19C.9(s).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 15A-147.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor’s Note.

Session Laws 2001-108, s. 3, makes this section effective October 1, 2001, and applicable to charges filed before, on, or after the effective date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2005-414, s. 8, effective December 1, 2005, substituted “theft” for “fraud” at the end of the section heading; and deleted “to commit an infraction or crime” preceding “and the charge” in subsection (a).

Session Laws 2009-510, s. 6, effective October 1, 2010, rewrote subsection (c); and, in the first sentence of subsection (e), added “The Department of Correction and” at the beginning and substituted “shall expunge its records as provided in G.S. 15A-150” for “shall expunge from its records entries made as a result of the charge or conviction ordered expunged under this section” at the end of the sentence.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsections (c) and (e).

Session Laws 2015-202, s. 1, effective December 1, 2015, and applicable to charges filed on or after that date, added “or mistaken identity” at the end of the section heading; substituted “person or mistaken identity and a finding” for “person and the charge against the named person is dismissed, a finding” in the first sentence of subsection (a); added subsection (a1); inserted “or the person eligible for automatic expungement under subsection (a1) of this section” near the end of the first sentence of subsection (c); and added subsection (g).

Session Laws 2017-186, s. 2(uu), effective December 1, 2017, inserted “and Juvenile Justice” in the first sentence of subsections (c) and (e).

Session Laws 2017-195, s. 1, effective December 1, 2017, in subsection (a), substituted “named person may petition the court” for “named person may apply by petition or written motion to the court” in the first sentence and deleted “motion or” following “shall hold a hearing on the” in the second sentence; and added subsection (a2). For applicability, see Editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the first sentence of subsections (c) and (e). For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Automatic (Expunctions) for the People: For a Court-Initiated Expunction Right in North Carolina for Charges Not Resulting in a Conviction,” see 96 N.C.L. Rev. 573 (2018).

§ 15A-148. Expunction of DNA records when charges are dismissed on appeal or pardon of innocence is granted.

  1. Upon a motion by the defendant following the issuance of a final order by an appellate court reversing and dismissing a conviction of an offense for which a DNA analysis was done in accordance with Article 13 of Chapter 15A of the General Statutes, or upon receipt of a pardon of innocence with respect to any such offense, the court shall issue an order of expungement of the DNA record and samples in accordance with subsection (b) of this section. The order of expungement shall include the name and address of the defendant and the defendant’s attorney and shall direct the North Carolina State Crime Laboratory to send a letter documenting expungement as required by subsection (b) of this section.
  2. When an order of expungement has been issued pursuant to subsection (a) of this section, the order of expungement, together with a certified copy of the final appellate court order reversing and dismissing the conviction or a certified copy of the instrument granting the pardon of innocence, shall be provided to the North Carolina State Crime Laboratory by the clerk of court. Upon receiving an order of expungement for an individual whose DNA record or profile has been included in the State DNA Database and whose DNA sample is stored in the State DNA Databank, the DNA profile shall be expunged and the DNA sample destroyed by the North Carolina State Crime Laboratory, except that the order shall not apply to other offenses committed by the individual that qualify for inclusion in the State DNA Database and the State DNA Databank. A letter documenting expungement of the DNA record and destruction of the DNA sample shall be sent by the North Carolina State Crime Laboratory to the defendant and the defendant’s attorney at the address specified by the court in the order of expungement. The North Carolina State Crime Laboratory shall adopt procedures to comply with this subsection.
  3. Any petition for expungement under this section shall be on a form approved by the Administrative Office of the Courts and be filed with the clerk of superior court. Upon order of expungement, the clerk shall forward the petition to the Administrative Office of the Courts.

History. 2001-282, s. 2; 2013-360, s. 17.6(e); 2017-195, s. 1.

Editor’s Note.

Session Laws 2001-282, s. 6, made this section effective October 1, 2001, and applicable to evidence, records, and samples in the possession of a governmental entity on or after that date.

Effect of Amendments.

Session Laws 2013-360, s. 17.6(e), effective July 1, 2013, substituted “North Carolina State Crime Laboratory” for “SBI” throughout the section.

Session Laws 2017-195, s. 1, effective December 1, 2017, added subsection (c). For applicability, see Editor’s note.

Legal Periodicals.

For article, “North Carolina’s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010,” see 89 N.C.L. Rev. 1309 (2011).

§ 15A-149. Expunction of records when pardon of innocence is granted. [Effective until January 1, 2023]

  1. If any person is convicted of a crime and receives a pardon of innocence, the person may petition the court in which the person was convicted on a form approved by the Administrative Office of the Courts supplied by the clerk of court for an order to expunge from all official records any entries relating to the person’s apprehension, charge, or trial. Upon receipt of the petition, the clerk of court shall verify that an attested copy of the warrant and return granting a pardon of innocence has been filed with the court in accordance with G.S. 147-25. Upon verification by the clerk that the warrant and return have been filed, the court shall issue an order of expunction.
  2. The order of expunction shall include an instruction that any entries relating to the person’s apprehension, charge, or trial shall be expunged from the records of the court and direct all law enforcement agencies, the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the Division of Motor Vehicles, or any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the entries. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150 and shall forward the petition to the Administrative Office of the Courts. The costs of expunging the records, as required under G.S. 15A-150, shall not be taxed against the petitioner.
  3. No person as to whom such an order has been entered under this section shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of the person’s failure to recite or acknowledge any expunged entries concerning apprehension, charge, or trial.

History. 2005-319, s. 1; 2009-510, s. 7; 2011-145, s. 19.1(h); 2017-186, s. 2(vv); 2017-195, s. 1.

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 15A-149.

Editor's Note.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2009-510, s. 7, effective October 1, 2010, rewrote subsection (b).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsection (b).

Session Laws 2017-186, s. 2(vv), effective December 1, 2017, inserted “and Juvenile Justice” in the first sentence of subsection (b).

Session Laws 2017-195, s. 1, effective December 1, 2017, in subsection (a), substituted “the person may petition” for “the person may apply by petition or written motion to” in the first sentence and “petition” for “petition or written motion” in the second sentence; and in subsection (b) substituted “G.S. 15A-150 and shall forward the petition to the Administrative Office of the Courts.” for “G.S. 15A-150.” For applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the first sentence of subsection (b). For effective date and applicability, see editor's note.

§ 15A-149. Expunction of records when pardon of innocence is granted. [Effective January 1, 2023]

  1. If any person is convicted of a crime and receives a pardon of innocence, the person may petition the court in which the person was convicted on a form approved by the Administrative Office of the Courts supplied by the clerk of court for an order to expunge from all official records any entries relating to the person’s apprehension, charge, or trial. Upon receipt of the petition, the clerk of court shall verify that an attested copy of the warrant and return granting a pardon of innocence has been filed with the court in accordance with G.S. 147-25. Upon verification by the clerk that the warrant and return have been filed, the court shall issue an order of expunction.
  2. The order of expunction shall include an instruction that any entries relating to the person’s apprehension, charge, or trial shall be expunged from the records of the court and direct all law enforcement agencies, the Department of Adult Correction, the Division of Motor Vehicles, or any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the entries. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150 and shall forward the petition to the Administrative Office of the Courts. The costs of expunging the records, as required under G.S. 15A-150, shall not be taxed against the petitioner.
  3. No person as to whom such an order has been entered under this section shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of the person’s failure to recite or acknowledge any expunged entries concerning apprehension, charge, or trial.

History. 2005-319, s. 1; 2009-510, s. 7; 2011-145, s. 19.1(h); 2017-186, s. 2(vv); 2017-195, s. 1; 2021-180, s. 19C.9(s).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 15A-149.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor's Note.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendment to this section by Session Laws 2021-180, s. 19C.9(s), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2009-510, s. 7, effective October 1, 2010, rewrote subsection (b).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subsection (b).

Session Laws 2017-186, s. 2(vv), effective December 1, 2017, inserted “and Juvenile Justice” in the first sentence of subsection (b).

Session Laws 2017-195, s. 1, effective December 1, 2017, in subsection (a), substituted “the person may petition” for “the person may apply by petition or written motion to” in the first sentence and “petition” for “petition or written motion” in the second sentence; and in subsection (b) substituted “G.S. 15A-150 and shall forward the petition to the Administrative Office of the Courts.” for “G.S. 15A-150.” For applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(s), substituted “Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in the first sentence of subsection (b). For effective date and applicability, see editor's note.

§ 15A-150. Notification requirements.

  1. Notification to AOC. —  The clerk of superior court in each county in North Carolina shall, as soon as practicable after each term of court, file with the Administrative Office of the Courts the petitions granted under this Article, any orders of expunction, and the names of the following:
    1. Persons granted an expunction under this Article.
    2. , (3) Repealed by Session Laws 2015-40, s. 3, effective December 1, 2015, and applicable to conditional discharges granted on or after that date.
    3. Repealed by Session Laws 2010-174, s. 7, effective October 1, 2010.
    4. Repealed by Session Laws 2015-40, s. 3, effective December 1, 2015, and applicable to conditional discharges granted on or after that date.
    5. Persons granted a dismissal upon completion of a conditional discharge under G.S. 14-50.29, 14-204, 14-277.8, 14-313(f), 15A-1341(a4), 90-96, or 90-113.14.
  2. Notification to Other State and Local Agencies. —  Unless otherwise instructed by the Administrative Office of the Courts pursuant to an agreement entered into under subsection (e) of this section for the electronic or facsimile transmission of information, the clerk of superior court in each county in North Carolina shall send a certified copy of an order granting an expunction to a person named in subsection (a) of this section to (i) all of the agencies listed in this subsection and (ii) the person granted the expunction. Expunctions granted pursuant to G.S. 15A-146(a4) are excluded from all clerk of superior court notice provisions of this subsection. An agency receiving an order under this subsection shall purge from its records all entries made as a result of the charge or conviction ordered expunged, except as provided in G.S. 15A-151. The list of agencies is as follows:
    1. The sheriff, chief of police, or other arresting agency.
    2. When applicable, the Division of Motor Vehicles.
    3. Any State or local agency identified by the petition as bearing record of the offense that has been expunged.
    4. The Department of Public Safety, Combined Records Section.
    5. The State Bureau of Investigation.
  3. Notification to FBI. —  The State Bureau of Investigation shall forward the order received under this section to the Federal Bureau of Investigation.
  4. Notification to Private Entities. —  A State agency that receives a certified copy of an order under this section shall notify any private entity with which it has a licensing agreement for bulk extracts of data from the agency criminal record database to delete the record in question. The private entity shall notify any other entity to which it subsequently provides in a bulk extract data from the agency criminal database to delete the record in question from its database.
  5. The Director of the Administrative Office of the Courts may enter into an agreement with any of the State agencies listed in subsection (b) of this section for electronic or facsimile transmission of any information that must be provided under this section. The Administrative Office of the Courts also may provide notice to State and local agencies, in a manner and format determined by the Administrative Office of the Courts, of expunctions granted pursuant to G.S. 15A-146(a4).

History. 2009-510, s. 1; 2010-174, s. 7; 2011-145, s. 19.1(h); 2013-368, s. 12; 2014-100, s. 17.1(eeee), (ffff), (gggg); 2014-115, s. 27(a); 2015-40, s. 3; 2015-247, s. 8; 2015-264, s. 5; 2017-195, s. 1; 2018-72, s. 5; 2020-35, s. 3(b); 2021-47, s. 15.

Editor’s Note.

Session Laws 2018-72, s. 7, made the amendment of subdivision (a)(6) of this section by Session Laws 2018-72, s. 5, effective December 1, 2018, and applicable to offenses committed on or after that date.

Session Laws 2020-35, s. 3(c), provides: “By October 1, 2021, the Department of Public Safety, in conjunction with the Department of Justice and the Administrative Office of the Courts, shall jointly develop and submit a report to the Joint Legislative Oversight Committee on Justice and Public Safety on recommendations and the costs involved to automate the expunction process for all State agencies with records subject to expunction orders and ensure the efficacy of the record expunction.”

Effect of Amendments.

Session Laws 2010-174, s. 7, effective October 1, 2010, in subdivision (a)(1), deleted “a discharge or” preceding “an expunction”; in subdivision (a)(2), substituted “a conditional discharge under G.S. 14-50.29” for “an expunction under G.S. 14-50.29 or G.S. 14-50.30”; in subdivision (a)(3), deleted “or an expunction” following “discharge”; deleted subdivision (a)(4), which read: “Persons whose judgments of convictions have been cancelled and expunged under G.S. 90-96 or G.S. 90-113.14”; and in the first paragraph in subsection (b), added the exception in the last sentence.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” in subdivision (b)(2).

Session Laws 2013-368, s. 12, effective October 1, 2013, added subdivision (a)(5). For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(eeee), effective July 1, 2014, in subsection (c), substituted “DPS” for “SBI” in the catchline, and substituted “Department of Public Safety” for “State Bureau of Investigation” three times..

Session Laws 2014-100, s. 17.1(gggg), in subsection (b), added “The list of agencies is as follows:” at the end of the introductory language and added subdivision (b)(4); and rewrote subsection (c). See Editor’s note for effective date and applicability.

Session Laws 2015-40, s. 3, effective December 1, 2015, deleted former subdivisions (a)(2), (a)(3), and (a)(5), which are now included in subdivision (a)(6); and added subdivision (a)(6). For applicability, see editor’s note.

Session Laws 2015-247, s. 8, effective September 23, 2015, added “Unless otherwise instructed by the Administrative Office of the Courts pursuant to an agreement entered into under subsection (e) of this section for the electronic or facsimile transmission of information” at the beginning of subsection (b), and made a related stylistic change; and added subsection (e).

Session Laws 2015-264, s. 5, effective October 1, 2015, deleted “and the Division of Adult Correction of the Department of Public Safety” at the end of subdivision (b)(2).

Session Laws 2017-195, s. 1, effective December 1, 2017, inserted “petitions granted under this Article, any orders of expunction, and the” near the end of subsection (a); in subsection (b), inserted “and the person” at the end of the first sentence, and substituted “purge” for “expunge” in the second sentence; added “Combined Record Section” in subdivision (b)(4); added subdivision (b)(5); and substituted “State Bureau of Investigation” for “Department of Public Safety” in subsection (c). For applicability, see Editor’s note.

Session Laws 2018-72, s. 5, inserted “14-277.8,” in subdivision (a)(6). For effective date and applicability, see editor’s note.

Session Laws 2020-35, s. 3(b), effective June 25, 2020, in subsection (b), in the first sentence of the introductory paragraph, added the item (i) and (ii) designations, and substituted “the person granted the expunction” for “the person” and added the second sentence.

Session Laws 2021-47, s. 15, effective June 18, 2021, inserted “clerk of superior court” in subsection (b); added the last sentence in subsection (e).

§ 15A-151. Confidential agency files; exceptions to expunction.

  1. The Administrative Office of the Courts shall maintain a confidential file for expungements containing the petitions granted under this Article and the names of those people for whom it received a notice under G.S. 15A-150. The information contained in the file may be disclosed only as follows:
    1. Upon request of a judge of the General Court of Justice of North Carolina for the purpose of ascertaining whether a person charged with an offense has been previously granted a discharge or an expunction.
    2. Upon request of a person requesting confirmation of the person’s own discharge or expunction.
    3. To the General Court of Justice of North Carolina in response to a subpoena or other court order issued pursuant to a civil action under G.S. 15A-152.
    4. Upon request of State or local law enforcement, if the criminal record was expunged under this Chapter 15A-145.8A, 15A-146 for employment purposes only.
    5. Upon the request of the North Carolina Criminal Justice Education and Training Standards Commission, if the criminal record was expunged under this Chapter 15A-145.8A, 15A-146 for certification purposes only.
    6. Upon request of the North Carolina Sheriff’s Education and Training Standards Commission, if the criminal record was expunged under this Chapter 15A-145.8A, 15A-146 for certification purposes only.
    7. To the district attorney in accordance with G.S. 15A-151.5.
    8. Upon request of the North Carolina Sheriffs’ Education and Training Standards Commission, if the criminal record was expunged under this Chapter for purposes of preparing a disclosure statement in accordance with Article 3 of Chapter 17E of the General Statutes.
    9. For disclosure of records of previous dismissal pursuant to conditional discharge, upon joint request of the district attorney and the defendant in a pending proceeding for the purpose of determining eligibility for a conditional discharge. Any report disclosed in response to the joint request shall be delivered only to the clerk of superior court of the county in which the matter is pending. Upon receipt of the report from the Administrative Office of the Courts, the clerk shall provide a copy to the district attorney and to the defendant. The clerk shall otherwise maintain the information as a confidential record in the court file for the case.
  2. All agencies required under G.S. 15A-150 to expunge from records all entries made as a result of a charge or conviction ordered expunged who maintain a licensing agreement to provide record information to a private entity shall maintain a confidential file containing information verifying the expunction and subsequent notification to private entities as required by G.S. 15A-150(d). The information contained in the file shall be disclosed only to a person requesting confirmation of expunction of the record of the person’s own discharge or expunction, as provided in G.S. 15A-152.
  3. The Division of Motor Vehicles shall not be required to expunge a record if the expunction of the record is expressly prohibited by the federal Commercial Motor Vehicle Safety Act of 1986, the federal Motor Carrier Safety Improvement Act of 1999, or regulations adopted pursuant to either act.

History. 2009-510, s. 1; 2010-174, s. 8; 2011-278, s. 2; 2012-191, s. 5; 2013-368, s. 13; 2015-40, s. 4; 2017-195, s. 1; 2020-35, s. 2(b); 2021-107, s. 6; 2021-118, s. 3.

Editor’s Note.

Session Laws 2021-107, s. 6, amended this section in the coded bill drafting format provided by G.S. 120-20.1. In subdivisions (a)(4) through (a)(6), Session Laws 2021-107, s. 6, failed to take into account the amendments by Session Laws 2020-35, s. 2(b). Subdivisions (a)(4) through (a)(6) have been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2021-107, s. 6, and Session Laws 2021-118, s. 3, amended this section in the coded bill drafting format provided by G.S. 120-20.1. Each act added a new subdivision (a)(8). At the direction of the Revisor of Statutes, the subdivision added by Session Laws 2021-118, s. 3, has been renumbered as subdivision (a)(9).

Session Laws 2021-107, s. 10, made the amendments to subsection (a) of this section, by Session Laws 2021-107, s. 6, effective October 1, 2021, and applicable to elections and appointments to the office of sheriff on or after that date.

Effect of Amendments.

Session Laws 2010-174, s. 8, effective October 1, 2010, rewrote the section catchline, which formerly read: “AOC maintain confidential file”; inserted the subsection (a) designation and added subsections (b) and (c).

Session Laws 2011-278, s. 2, effective December 1, 2011, added subdivisions (a)(4) through (a)(6).

Session Laws 2012-191, s. 5, effective December 1, 2012, added “or G.S. 15A-145.5” in subdivisions (a)(4), (a)(5), and (a)(6).

Session Laws 2013-368, s. 13, effective October 1, 2013, added “or 145.6” in subdivision (a)(5); added “or 15-A145.6” in subdivision (a)(6);and made related stylistic and punctuation changes. For applicability, see Editor’s note.

Session Laws 2015-40, s. 4, effective July 1, 2015, in subdivision (a)(4), inserted “or 15A-145.6” and made related stylistic changes.

Session Laws 2017-195, s. 1, effective December 1, 2017, rewrote subsection (a). For applicability, see Editor’s note.

Session Laws 2020-35, s. 2(b), effective December 1, 2020, substituted “15A-145.6, 15A-145.8A, or 15A-146” for “or 15A-145.6” in subdivisions (a)(4), (a)(5) and (a)(6); and substituted “Sheriffs’ Education and Training Standards Commission” for “Sherrif’s Standards Commission” in subdivision (a)(6).

Session Laws 2021-107, s. 6, in subdivisions (a)(4) through (6), substituted “under this Chapter” for “pursuant to G.S. 15A-145.4, 15A-145.5, or 15A-145.6”; and added subdivision (a)(8). For effective date and applicability, see editor’s note.

Session Laws 2021-118, s. 3, effective December 1, 2021, added subdivision (a)(8). For renumbering of subdivision, see editor’s note.

§ 15A-151.5. Prosecutor access to expunged files.

  1. Notwithstanding any other provision of this Article, the Administrative Office of the Courts shall make all confidential files maintained under G.S. 15A-151 electronically available to all prosecutors of this State if the criminal record was expunged on or after July 1, 2018, under any of the following:
    1. G.S. 15A-145. Expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor; expunction of certain other misdemeanors.
    2. G.S. 15A-145.1. Expunction of records for first offenders under the age of 18 at the time of conviction of certain gang offenses.
    3. G.S. 15A-145.2. Expunction of records for first offenders not over 21 years of age at the time of the offense of certain drug offenses.
    4. G.S. 15A-145.3. Expunction of records for first offenders not over 21 years of age at the time of the offense of certain toxic vapors offenses.
    5. G.S. 15A-145.4. Expunction of records for first offenders who are under 18 years of age at the time of the commission of a nonviolent felony.
    6. G.S. 15A-145.5. Expunction of certain misdemeanors and felonies; no age limitation.
    7. G.S. 15A-145.6. Expunctions for certain defendants convicted of prostitution.
    8. G.S. 15A-145.7. Expunction of records for first offenders under 20 years of age at the time of the offense of certain offenses.
    9. G.S. 15A-145.8A. Expunction of records for offenders under the age of 18 at the time of commission of certain misdemeanors and felonies upon completion of the sentence.
    10. G.S. 15A-145.9. Expunction of records of certain offenses committed by human trafficking victims.
    11. G.S. 15A-146(a). Expunction of records when charges are dismissed.
    12. G.S. 15A-146(a1). Expunction of records when charges are dismissed.
  2. For any expungement granted on or after July 1, 2018, the record of a criminal conviction expunged under subdivisions (1) through (7b) of subsection (a) of this section may be considered a prior conviction and used for any of the following purposes:
    1. To calculate prior record level and prior conviction level if the named person is convicted of a subsequent criminal offense.
    2. To serve as a basis for indictment for a habitual offense pursuant to G.S. 14-7.1 or G.S. 14-7.26.
    3. When a conviction of a prior offense raises the offense level of a subsequent offense.
    4. To determine eligibility for relief under G.S. 90-96(a).
    5. When permissible in a criminal case under Rule 404(b) or Rule 609 of the North Carolina Rules of Evidence.
  3. For any expungement granted on or after July 1, 2018, the information maintained by the Administrative Office of the Courts, and made available under subsection (a) of this section, is prima facie evidence of the expunged conviction for the purposes provided in subsection (b) of this section and is admissible into evidence. The expungement of a conviction shall not serve as a basis to challenge a conviction or sentence entered before the expungement of that conviction.
  4. Notwithstanding any other provision of this Article, the Administrative Office of the Courts shall make all records of dismissals pursuant to conditional discharge maintained under G.S. 15A-151 electronically available to all prosecutors of this State.

History. 2017-195, s. 1; 2019-158, s. 4(c); 2020-35, s. 2(a); 2020-69, s. 8(a), (b); 2020-78, s. 10.1(a), (b); 2021-88, s. 3; 2021-118, s. 4.

Editor’s Note.

Session Laws 2019-158, s. 4(c), rewrote subsection (a) without using the coded bill drafting format provided by G.S. 120-20.1. The amendment used the phrase “is rewritten to read” instead of “reads as rewritten.” Session Laws 2020-69, s. 8(a), and Session Laws 2020-78, s. 10.1(a), repealed Session Laws 2019-158, s. 4(c), effective retroactively to December 1, 2019.

Session Laws 2019-158, s. 7 is a severability clause.

Session Laws 2020-69, s. 8(b), and Session Laws 2020-78, s. 10.1(b), are identical, effective retroactively to December 1, 2019, and added subdivision (a)(7a), which was redesignated as (a)(7c) at the direction of the Revisor of Statutes.

Session Laws 2020-78, s. 22.1, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium.”

Session Laws 2020-78, s. 22.3, is a severability clause.

Effect of Amendments.

Session Laws 2020-35, s. 2(a), effective December 1, 2020, added subdivisions (a)(7a) and (a)(7b); rewrote subsection (b); and in subsection (c), substituted “provided in subsection (b) of this section and shall be admissible into evidence” for “of calculating prior record level of the named person and shall be admissible into evidence at a subsequent criminal sentencing hearing” in the first sentence, and added the second sentence.

Session Laws 2020-69, s. 8(b), added subdivision (a)(7c). For retroactive effective date, identical amendment, and renumbering of subdivision, see editor’s note.

Session Laws 2020-78, s. 10.1(b), added subdivision (a)(7c). For retroactive effective date, identical amendment, and renumbering of subdivision, see editor’s note.

Session Laws 2021-88, s. 3, effective July 22, 2021, substituted “commission” for “conviction” in subdivision (a)(7b); and substituted “is prima facie evidence” for “shall be prima facie evidence”, and “is admissible” for “shall be admissible” in subsection (c).

Session Laws 2021-118, s. 4, effective December 1, 2021, added subsection (d).

§ 15A-152. Civil liability for dissemination of certain criminal history information.

  1. Duty to Delete Record. —  A private entity that holds itself out as being in the business of compiling and disseminating criminal history record information for compensation shall destroy and shall not disseminate any information in the possession of the entity with respect to which the entity has received a notice to delete the record in question. The private entity shall delete the record within the specified time and pursuant to the terms of the licensing agreement with the State agency. If the license does not specify a time for deletion, or if no license agreement exists between the private entity and state agency, the private entity shall delete the record within 10 business days of receiving notice to delete the record in question.
  2. Dissemination of Information. —  Unless the entity is regulated by the federal Fair Credit Reporting, Act 15 U.S.C. § 1681, et seq. or the Gramm-Leach-Bliley Act 15 U.S.C. §§ 6801-6809, a private entity described by subsection (a) of this section that is licensed to access a State agency’s criminal history record database may disseminate that information only if, within the 90-day period preceding the date of dissemination, the entity originally obtained the information or received the information as an updated record information to its database. The private entity must notify the State agency from which it receives the information of any other entity to which it subsequently provides a bulk extract of the information.
  3. Civil Liability. —  A private entity subject to the provisions of this section that disseminates information in violation of this section is liable for any damages that are sustained as a result of the violation by the person who is the subject of that information. A person who prevails in an action brought under this section is also entitled to recover court costs and reasonable attorneys’ fees. This subsection does not apply to an entity regulated by and subject to the civil liability remedies of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., or the Gramm Leach-Bliley Act, 15 U.S.C. 6801-6809, et seq.
  4. Certificate of Verification. —  Prior to filing an action under this section, a person who is the subject of a record that has been expunged may apply to the Administrative Office of the Courts for a certificate verifying that the person is the subject of a record that has been expunged and that notice of the expunction was made in accordance with G.S. 15A-150. The application must include a sworn affidavit attesting, under penalty of perjury, that the applicant is the person who was the subject of the record in question and identifying the specific case expunged. A notary or official taking an acknowledgment, oath, or affirmation of an applicant’s affidavit under this subsection may not disclose the nature or content of the application, except as required in a court action related to the application. Unless made part of the record of a subsequent court proceeding, a certificate of verification and an application for the certificate are not public records under G.S. 132-1. The Administrative Office of the Courts may establish procedures pertaining to the application for and issuance of certificates of verification.
  5. Notice of Record Removal. —  Prior to filing an action under this section, a person who is the subject of a record that has been expunged may request a notice of record removal of the expunction and subsequent notification to private entities as required by G.S. 15A-150(d) from an agency required under G.S. 15A-150 to expunge that person’s record who maintains a licensing agreement to provide record information to a private entity. The application must include a sworn affidavit attesting, under penalty of perjury, that the applicant is the person who was the subject of the record in question and identifying the specific case expunged. A notary or official taking an acknowledgment, oath, or affirmation of an applicant’s affidavit under this subsection may not disclose the nature or content of the application, except as required in a court action related to the application. Unless made part of the record of a subsequent court proceeding, a notice of record removal and an application for the notice are not public records under G.S. 132-1. State and local agencies may establish procedures pertaining to the application for and issuance of notices of record removal.

History. 2009-510, s. 1; 2010-174, s. 9.

Effect of Amendments.

Session Laws 2010-174, s. 9, effective October 1, 2010, in subsection (a), added the last two sentences; in the third sentence in subsection (d), substituted “affirmation of an applicant’s affidavit” for “affirmation of an applicant affidavit” and “the nature or content of the application” for “the nature of content of the application”; and added subsection (e).

Legal Periodicals.

For article, “Automatic (Expunctions) for the People: For a Court-Initiated Expunction Right in North Carolina for Charges Not Resulting in a Conviction,” see 96 N.C.L. Rev. 573 (2018).

§ 15A-153. Effect of expunction; prohibited practices by employers, educational institutions, agencies of State and local governments.

  1. Purpose.—  The purpose of this section is to clear the public record of any entry of any arrest, criminal charge, or criminal conviction that has been expunged so that (i) the person who is entitled to and obtains the expunction may omit reference to the charges or convictions to potential employers and others and (ii) a records check for prior arrests and convictions will not disclose the expunged entries. Nothing in this section shall be construed to prohibit an employer from asking a job applicant about criminal charges or convictions that have not been expunged and are part of the public record.
  2. [Nondisclosure Protected. —]  No person as to whom an order of expunction has been entered pursuant to this Article shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge any expunged arrest, apprehension, charge, indictment, information, trial, or conviction in response to any inquiry made of him or her for any purpose other than as provided in subsection (e) of this section.
  3. Employer or Educational Institution Inquiry Regarding Disclosure of Expunged Arrest, Criminal Charge, or Conviction.—  An employer or educational institution shall not, in any application, interview, or otherwise, require an applicant for employment or admission to disclose information concerning any arrest, criminal charge, or criminal conviction of the applicant that has been expunged and shall not knowingly and willingly inquire about any arrest, charge, or conviction that they know to have been expunged. An applicant need not, in answer to any question concerning any arrest or criminal charge that has not resulted in a conviction, include a reference to or information concerning arrests, charges, or convictions that have been expunged. This subsection does not apply to State or local law enforcement agencies authorized pursuant to G.S. 15A-151 to obtain confidential information for employment purposes.
  4. State or Local Government Agency, Official, and Employee Inquiry Regarding Disclosure of Expunged Arrest, Criminal Charge, or Conviction.—  Agencies, officials, and employees of the State and local governments who request disclosure of information concerning any arrest, criminal charge, or criminal conviction of the applicant shall first advise the applicant that State law allows the applicant to not refer to any arrest, charge, or conviction that has been expunged. An applicant need not, in answer to any question concerning any arrest or criminal charge that has not resulted in a conviction, include a reference to or information concerning charges or convictions that have been expunged. Such application shall not be denied solely because of the applicant’s refusal or failure to disclose information concerning any arrest, criminal charge, or criminal conviction of the applicant that has been expunged.
  5. [Exceptions. —]  The provisions of subsection (d) of this section do not apply to any applicant or licensee seeking or holding any certification issued by the North Carolina Criminal Justice Education and Training Standards Commission pursuant to Article 1 of Chapter 17C of the General Statutes or the North Carolina Sheriffs Education and Training Standards Commission pursuant to Article 2 of Chapter 17E of the General Statutes:
    1. Convictions expunged pursuant to G.S. 15A-145.4. —  Persons pursuing certification under the provisions of Article 1 of Chapter 17C or Article 2 of Chapter 17E of the General Statutes shall disclose any and all felony convictions to the certifying Commission regardless of whether or not the felony convictions were expunged pursuant to the provisions of G.S. 15A-145.4.
    2. Convictions expunged pursuant to G.S. 15A-145.5. —  Persons pursuing certification under the provisions of Article 1 of Chapter 17C or Article 2 of Chapter 17E of the General Statutes shall disclose any and all convictions to the certifying Commission regardless of whether or not the convictions were expunged pursuant to the provisions of G.S. 15A-145.5.
  6. The provisions of subsection (d) of this section do not apply to any individual requesting a disclosure statement be prepared by the North Carolina Sheriffs’ Education and Training Standards Commission pursuant to Article 3 of Chapter 17E of the General Statutes.
  7. Penalty for Violation.—  Upon investigation by the Commissioner of Labor or the Commissioner’s authorized representative, any employer found to be in violation of subsection (c) of this section shall be issued a written warning for a first violation and shall be subject to a civil penalty of up to five hundred dollars ($500.00) for each additional violation occurring after receipt of the written warning. In determining the amount of any penalty ordered under authority of this section, the Commissioner shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person being charged, the gravity of the violation, the good faith of the person, and the record of previous violations. The determination of the amount of the penalty by the Commissioner shall be final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the violation takes exception to the determination in which event the final determination of the penalty shall be made in an administrative proceeding and in a judicial proceeding pursuant to Chapter 150B of the General Statutes, the Administrative Procedure Act. The Commissioner of Labor may adopt, modify, or revoke such rules as are necessary for carrying out the provisions of this subsection.Nothing in this section shall be construed to create a private cause of action against any employer or its agents or employees, any educational institutions or their agents or employees, or any State or local government agencies, officials, or employees.

History. 2013-53, s. 3; 2021-107, s. 7(a).

Editor’s Note.

The bracketed subsection headings in subsections (b) and (e) were inserted at the direction of the Revisor of Statutes.

“Article 1 of Chapter 17C” has been substituted for “Chapter 17C” in this section at the direction of the Revisor of Statutes.

Session Laws 2021-107, s. 10, made the amendments to this section, by Session Laws 2021-107, s. 7(a), effective October 1, 2021, and applicable to elections and appointments to the office of sheriff on or after that date.

Effect of Amendments.

Session Laws 2021-107, s. 7(a), inserted “Article 2 of” or “Article 2 of Chapter” preceding “17E” throughout subsection (e); and added subsection (e1). For effective date and applicability, see editor’s note.

§§ 15A-154 through 15A-159.

Reserved for future codification purposes.

§ 15A-160. Reporting requirement.

The Department of Public Safety, in conjunction with the Department of Justice and the Administrative Office of the Courts, shall report jointly to the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety Oversight by September 1 of each year regarding expunctions. The report shall include all of the following information:

  1. The number and types of expunctions granted during the fiscal year in which the report is made.
  2. The number and type of expunctions granted each fiscal year for the five fiscal years preceding the date of the report.
  3. A full accounting of how the agencies have spent the receipts generated by the expunction fees received during the fiscal year in which the report is made and for the five preceding fiscal years.

History. 2013-360, s. 18B.16(h); 2015-241, s. 16B.5(a).

Effect of Amendments.

Session Laws 2015-241, s. 16B.5(a), effective July 1, 2015, in the introductory paragraph, inserted “Department of Public Safety, in conjunction with the” and made a minor punctuation change.

§§ 15A-161 through 15A-173.

Reserved for future codification purposes.

Article 6. Certificate of Relief.

§ 15A-173.1. Definitions.

The following definitions apply in this Article:

  1. Collateral consequence. — A collateral sanction or a disqualification.
  2. Collateral sanction. — A penalty, disability, or disadvantage, however denominated, imposed on an individual as a result of the individual’s conviction of an offense which applies by operation of law, whether or not the penalty, disability, or disadvantage is included in the judgment or sentence. The term does not include imprisonment, probation, parole, post-release supervision, forfeiture, restitution, fine, assessment, or costs of prosecution.
  3. Disqualification. — A penalty, disability, or disadvantage, however denominated, that an administrative agency, governmental official, or court in a civil proceeding may impose on an individual on grounds relating to the individual’s conviction of an offense.
  4. District attorney. — The office of the district attorney that prosecuted the offense giving rise to the collateral consequence from which relief is sought.

History. 2011-265, s. 1.

Editor’s Note.

Session Laws 2011-265, s. 2, made this article effective December 1, 2011.

§ 15A-173.2. Certificate of Relief.

  1. An individual who is convicted of no more than (i) three Class H or I felonies and (ii) any misdemeanors may petition the court where the individual was convicted for a Certificate of Relief relieving collateral consequences as permitted by this Article. If the person is convicted of more than one Class H or I felony in the same session of court, then the multiple felony convictions shall be treated as one felony conviction under this section. Except as otherwise provided in this subsection, the petition shall be heard by the senior resident superior court judge if the convictions were in superior court, or the chief district court judge if the convictions were in district court. The senior resident superior court judge and chief district court judge in each district may delegate their authority to hold hearings and issue, modify, or revoke Certificates of Relief to judges, clerks, or magistrates in that district.
  2. Except as otherwise provided in G.S. 15A-173.3, the court may issue a Certificate of Relief if, after reviewing the petition, the individual’s comprehensive criminal history as provided by the district attorney, any information provided by a victim under G.S. 15A-173.6 or the district attorney, and any other relevant evidence, it finds the individual has established by a preponderance of the evidence all of the following:
    1. Twelve months have passed since the individual has completed his or her sentence. For purposes of this subdivision, an individual has not completed his or her sentence until the individual has served all of the active time, if any, imposed for each offense and has also completed any period of probation, post-release supervision, and parole related to the offense that is required by State law or court order.
    2. The individual is engaged in, or seeking to engage in, a lawful occupation or activity, including employment, training, education, or rehabilitative programs, or the individual otherwise has a lawful source of support.
    3. The individual has complied with all requirements of the individual’s sentence, including any terms of probation, that may include substance abuse treatment, anger management, and educational requirements.
    4. The individual is not in violation of the terms of any criminal sentence, or that any failure to comply is justified, excused, involuntary, or insubstantial.
    5. A criminal charge is not pending against the individual.
    6. Granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.
  3. The Certificate of Relief shall specify any restriction imposed and collateral sanction or disqualification from which relief has not been granted under G.S. 15A-173.4(a).
  4. Unless modified or revoked, a Certificate of Relief relieves all collateral sanctions, except those listed in G.S. 15A-173.3, those sanctions imposed by the North Carolina Constitution or federal law, and any others specifically excluded in the certificate. A Certificate of Relief does not automatically relieve a disqualification; however, an administrative agency, governmental official, or court in a civil proceeding shall consider a Certificate of Relief favorably in determining whether a conviction should result in disqualification.
  5. A Certificate of Relief issued under this Article does not result in the expunction of any criminal history record information, nor does it constitute a pardon.
  6. A Certificate of Relief is automatically revoked pursuant to G.S. 15A-173.4(b) if the individual is subsequently convicted of a felony or misdemeanor other than a traffic violation. The Administrative Office of the Courts shall provide the following declaration on the Petition and Order for a Certificate of Relief: “Any Certificate of Relief is automatically revoked for a subsequent conviction of a felony or misdemeanor other than a traffic violation in this State.”
  7. The denial of a petition for a Certificate of Relief shall state the reasons for the denial, and the petitioner may file a subsequent petition 12 months from the denial and shall demonstrate that the petitioner has remedied the defects in the previous petition and has complied with any conditions for reapplication set by the court pursuant to G.S. 15A-173.4(a) in order to have the petition granted.
  8. A petitioner who files a petition under this section shall pay a one-time fee of fifty dollars ($50.00) to the clerk of superior court at the time of filing. Fees collected under this subsection shall be deposited in the General Fund. This subsection shall not apply to a petition filed by an indigent. The fee shall be waived by the clerk of superior court on a showing by the petitioner that the one-time fee was previously paid, even if in another county.
  9. Any person who is granted a Certificate of Relief under this Article shall notify any employer, landlord, or other party who has relied on the Certificate of Relief of any conviction, modification, or revocation subsequent to the Certificate of Relief within 10 days of the conviction, modification, or revocation.

History. 2011-265, s. 1; 2018-79, s. 1; 2018-145, s. 19; 2019-91, s. 1.

Editor’s Note.

Session Laws 2019-91, s. 6 made the amendments to subsection (d) by Session Laws 2019-91, s. 1, effective October 1, 2019, and applicable to Certificates of Relief granted or applications for licensure submitted on or after that date.

Effect of Amendments.

Session Laws 2018-79, s. 1, in subsection (a), substituted “no more than (i) three Class H or I felonies and (ii) any misdemeanors” for “no more than two Class G, H, or I felonies or misdemeanors in one session of court, and who has no other convictions for a felony or misdemeanor other than a traffic violation” in the middle of the first sentence and added in the second sentence; substituted “comprehensive criminal history as provided by the district attorney,” for “criminal history,” near the beginning of subsection (b); substituted “Unless modified or revoked, a” for “A” at the beginning of subsection (d); in subsection (f), in the first sentence, substituted “is automatically” for “may be” and deleted “or is found to have made any material misrepresentation in his or her petition” following “violation” at the end and added the second sentence; and added subsections (h) and (i). For effective date and applicability, see editor’s note.

Session Laws 2018-145, s. 19, effective December 27, 2018, in subsection (f), substituted “Petition and Order for a Certificate of Relief” for “forms that record criminal judgments” following “declaration on the.”

Session Laws 2019-91, s. 1, substituted “shall” for “may” in the second sentence of subsection (d). For effective date and applicability, see Editor’s note.

§ 15A-173.3. Collateral sanctions not subject to order of limited relief or Certificate of Relief.

A Certificate of Relief shall not be issued to relieve any of the following collateral sanctions:

  1. Requirements imposed by, and any statutory requirements or prohibitions imposed as a result of registration pursuant to, Article 27A of Chapter 14 of the General Statutes.
  2. Prohibitions on possession of firearms imposed by Articles 54A and 54B of Chapter 14 of the General Statutes.
  3. A motor vehicle license suspension, revocation, limitation, or ineligibility imposed pursuant to Chapter 20 of the General Statutes.
  4. Ineligibility for certification pursuant to Article 1 of Chapter 17C or 17E of the General Statutes.
  5. Ineligibility for employment as any of the following if the ineligibility is a sanction imposed by a statute or session law of North Carolina.
    1. A corrections or probation officer.
    2. A prosecutor or investigator in either the Department of Justice or in the office of a district attorney. For purposes of this subdivision, the term district attorney shall include any district attorney authorized pursuant to G.S. 7A-60.

History. 2011-265, s. 1.

Editor’s Note.

“Article 1 of Chapter 17C” has been substituted for “Chapter 17C” in this section at the direction of the Revisor of Statutes.

§ 15A-173.4. Issuance, modification, and revocation of Certificate of Relief by the court.

  1. When a petition is filed under G.S. 15A-173.2, including a petition for enlargement of an existing Certificate of Relief, the court shall notify the district attorney at least three weeks before the hearing on the matter. The court may issue a Certificate of Relief subject to restriction, condition, or additional requirement. When issuing, denying, modifying, or revoking a Certificate of Relief, the court may impose conditions for reapplication.
  2. The court shall revoke a Certificate of Relief it issued if it finds by a preponderance of the evidence that the individual has a subsequent conviction for an offense in another jurisdiction that is deemed a felony or misdemeanor other than a traffic violation in this State. The court may modify or revoke a Certificate of Relief it issued if it finds by a preponderance of the evidence that the petitioner made a material misrepresentation in the petition for Certificate of Relief. A motion for modification or revocation of a Certificate of Relief may be initiated by the court on its own motion, or upon motion of the district attorney or the individual for whom the Certificate of Relief has been issued. The individual for whom the Certificate of Relief has been issued, and the district attorney, shall be given notice of the motion at least three weeks before any hearing on the matter.
  3. The district attorney shall have the right to appear and be heard at any proceeding relating to the issuance, modification, or revocation of the Certificate of Relief.
  4. The court is authorized to call upon a probation officer for any additional investigation or verification of the individual’s conduct it reasonably believes necessary to its decision to issue, modify, or revoke a Certificate of Relief. If there are material disputed issues of fact or law, the individual and the district attorney may submit evidence and be heard on those issues.
  5. The issuance, modification, and revocation of Certificates of Relief shall be a public record.

History. 2011-265, s. 1; 2018-79, s. 2.

Effect of Amendments.

Session Laws 2018-79, s. 2, added “, by the court” in the section catchline; and rewrote subsection (b). For effective date and applicability, see editor’s note.

§ 15A-173.5. Reliance on order or Certificate of Relief as evidence of due care.

In a judicial or administrative proceeding alleging negligence, a Certificate of Relief is a bar to any action alleging lack of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the Certificate of Relief was issued, if the person against whom the judicial or administrative proceeding is brought relied on the Certificate of Relief at the time of the alleged negligence.

History. 2011-265, s. 1; 2018-79, s. 3.

Effect of Amendments.

Session Laws 2018-79, s. 3, substituted “brought relied on the” for “brought knew of the” near the end of the section. For effective date and applicability, see editor’s note.

§ 15A-173.6. Victim’s rights.

The victim of the underlying offense for which a Certificate of Relief is sought may appear and be heard, or may file a statement for consideration by the court, in a proceeding for issuance, modification, or revocation of the Certificate of Relief. Notification to the victim shall be made through the Victim Witness Coordinator in the office of the district attorney.

History. 2011-265, s. 1.

§§ 15A-174 through 15A-200.

Reserved for future codification purposes.

Subchapter II. Law-Enforcement and Investigative Procedures.

Article 7. [Repealed]

§§ 15A-201 through 15A-210.

Reserved for future codification purposes.

Article 8. Electronic Recording of Interrogations.

§ 15A-211. Electronic recording of interrogations.

  1. Purpose. —  The purpose of this Article is to require the creation of an electronic record of an entire custodial interrogation in order to eliminate disputes about interrogations, thereby improving prosecution of the guilty while affording protection to the innocent and increasing court efficiency.
  2. Application. —  The provisions of this Article shall apply to all custodial interrogations of juveniles in criminal investigations conducted at any place of detention. The provisions of this Article shall also apply to any custodial interrogation of any person in a criminal investigation conducted at any place of detention if the investigation is related to any of the following crimes: any Class A, B1, or B2 felony, and any Class C felony of rape, sex offense, or assault with a deadly weapon with intent to kill inflicting serious injury.
  3. Definitions. —  The following definitions apply in this Article:
    1. Electronic recording. — An audio recording that is an authentic, accurate, unaltered record; or a visual recording that is an authentic, accurate, unaltered record. A visual and audio recording shall be simultaneously produced whenever reasonably feasible, provided that a defendant may not raise this as grounds for suppression of evidence.
    2. In its entirety. — An uninterrupted record that begins with and includes a law enforcement officer’s advice to the person in custody of that person’s constitutional rights, ends when the interview has completely finished, and clearly shows both the interrogator and the person in custody throughout. If the record is a visual recording, the camera recording the custodial interrogation must be placed so that the camera films both the interrogator and the suspect. Brief periods of recess, upon request by the person in custody or the law enforcement officer, do not constitute an “interruption” of the record. The record will reflect the starting time of the recess and the resumption of the interrogation.
    3. Place of detention. — A jail, police or sheriff’s station, correctional or detention facility, holding facility for prisoners, or other facility where persons are held in custody in connection with criminal charges.
  4. Electronic Recording of Interrogations Required. —  Any law enforcement officer conducting a custodial interrogation in an investigation of a juvenile shall make an electronic recording of the interrogation in its entirety. Any law enforcement officer conducting a custodial interrogation in an investigation relating to any of the following crimes shall make an electronic recording of the interrogation in its entirety: any Class A, B1, or B2 felony; and any Class C felony of rape, sex offense, or assault with a deadly weapon with intent to kill inflicting serious injury.
  5. Admissibility of Electronic Recordings. —  During the prosecution of any offense to which this Article applies, an oral, written, nonverbal, or sign language statement of a defendant made in the course of a custodial interrogation may be presented as evidence against the defendant if an electronic recording was made of the custodial interrogation in its entirety and the statement is otherwise admissible. If the court finds that the defendant was subjected to a custodial interrogation that was not electronically recorded in its entirety, any statements made by the defendant after that non-electronically recorded custodial interrogation, even if made during an interrogation that is otherwise in compliance with this section, may be questioned with regard to the voluntariness and reliability of the statement. The State may establish through clear and convincing evidence that the statement was both voluntary and reliable and that law enforcement officers had good cause for failing to electronically record the interrogation in its entirety. Good cause shall include, but not be limited to, the following:
    1. The accused refused to have the interrogation electronically recorded, and the refusal itself was electronically recorded.
    2. The failure to electronically record an interrogation in its entirety was the result of unforeseeable equipment failure, and obtaining replacement equipment was not feasible.
  6. Remedies for Compliance or Noncompliance. —  All of the following remedies shall be granted as relief for compliance or noncompliance with the requirements of this section:
    1. Failure to comply with any of the requirements of this section shall be considered by the court in adjudicating motions to suppress a statement of the defendant made during or after a custodial interrogation.
    2. Failure to comply with any of the requirements of this section shall be admissible in support of claims that the defendant’s statement was involuntary or is unreliable, provided the evidence is otherwise admissible.
    3. When evidence of compliance or noncompliance with the requirements of this section has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine whether the defendant’s statement was voluntary and reliable.
  7. Article Does Not Preclude Admission of Certain Statements. —  Nothing in this Article precludes the admission of any of the following:
    1. A statement made by the accused in open court during trial, before a grand jury, or at a preliminary hearing.
    2. A spontaneous statement that is not made in response to a question.
    3. A statement made during arrest processing in response to a routine question.
    4. A statement made during a custodial interrogation that is conducted in another state by law enforcement officers of that state.
    5. A statement obtained by a federal law enforcement officer.
    6. A statement given at a time when the interrogators are unaware that the person is suspected of an offense to which this Article applies.
    7. A statement used only for impeachment purposes and not as substantive evidence.
  8. Destruction or Modification of Recording After Appeals Exhausted. —  The State shall not destroy or alter any electronic recording of a custodial interrogation of a defendant convicted of any offense related to the interrogation until one year after the completion of all State and federal appeals of the conviction, including the exhaustion of any appeal of any motion for appropriate relief or habeas corpus proceedings. Every electronic recording should be clearly identified and catalogued by law enforcement personnel.

History. 2007-434, s. 1; 2011-329, s. 2.

Editor’s Note.

Session Laws 2007-434, s. 2, made this Article effective March 1, 2008, and applicable to interrogations occurring on or after that date.

The definitions in subsection (c) have been set out in alphabetical order at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2011-329, s. 2, effective December 1, 2011, and applicable to offenses committed on or after that date, in subsection (b), substituted “shall apply to all custodial interrogations of juveniles in criminal investigations” for “shall only apply to custodial interrogations in homicide investigations” in the first sentence, and added the last sentence; in subdivision (c)(1), added the last sentence; in subsection (d), substituted “in an investigation of a juvenile” for “in a homicide investigation” in the first sentence, and added the last sentence; and in the first sentence of subsection (e) and in subdivision (g)(6), substituted “offense to which this Article applies” for “homicide,” or similar language.

§§ 15A-212 through 15A-219.

Reserved for future codification purposes.

Article 8A. SBI and State Crime Laboratory Access to View and Analyze Recordings.

§ 15A-220. SBI and State Crime Laboratory access to view and analyze recordings.

Any State or local law enforcement agency that uses the services of the State Bureau of Investigation or the North Carolina State Crime Laboratory to analyze a recording covered by G.S. 132-1.4A shall, at no cost, provide access to a method to view and analyze the recording upon request of the State Bureau of Investigation or the North Carolina State Crime Laboratory.

History. 2016-88, s. 2(d).

Cross References.

As to various similar provisions pertaining to SBI and State Crime Laboratory access to view and analyze recordings, see G.S. 114-64, G.S. 153A-458, and G.S. 160A-490.1.

As to law enforcement agency recordings, see G.S. 132-1.4A.

Editor’s Note.

Session Laws 2016-88, s. 5, made this section effective October 1, 2016, and applicable to all requests made on or after that date for the disclosure or release of a recording.

Article 9. Search and Seizure by Consent.

Official Commentary

This Article expresses the common-law authority to make searches upon consent. It requires no warnings to the person from whom consent is sought, thus making it necessary only that the consent be voluntary, under the decision in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973).

§ 15A-221. General authorization; definition of “consent”.

  1. Authority to Search and Seize Pursuant to Consent. —  Subject to the limitations in the other provisions of this Article, a law-enforcement officer may conduct a search and make seizures, without a search warrant or other authorization, if consent to the search is given.
  2. Definition of “Consent”. —  As used in this Article, “consent” means a statement to the officer, made voluntarily and in accordance with the requirements of G.S. 15A-222, giving the officer permission to make a search.

History. 1973, c. 1286, s. 1.

Legal Periodicals.

For article discussing the search and seizure provisions of Chapter 15A, see 52 N.C.L. Rev. 277 (1973).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under former similar provisions of Chapter 15 and earlier statutes.

One may submit or consent to a warrantless search or seizure. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979).

The defendant voluntarily consented to the search of his person where the court found that after defendant agreed to speak with the officers, the officers noticed that defendant had an odor of alcohol about him and that his eyes appeared to be dilated and that when the officers asked defendant if they could search him, he agreed. State v. Steen, 352 N.C. 227, 536 S.E.2d 1, 2000 N.C. LEXIS 530 (2000), modified, 544 S.E.2d 771, 2000 N.C. LEXIS 725 (2000), cert. denied, 531 U.S. 1167, 121 S. Ct. 1131, 148 L. Ed. 2d 997, 2001 U.S. LEXIS 1450 (2001).

And Miranda Warnings Are Not Required. —

The warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966), in order to make competent a confession made in custody, need not be given by officers before obtaining the consent of the owner to a search of his premises. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971); State v. Lindquist, 14 N.C. App. 361, 188 S.E.2d 686, 1972 N.C. App. LEXIS 2132 (1972).

Owner of premises may consent to a search thereof and thus waive the necessity of a valid search warrant so as to render the evidence obtained in the search competent, but to have such effect, the consent of the owner must be freely and intelligently given, without coercion, duress or fraud, and the burden is upon the State to prove that it was so, the presumption being against the waiver of fundamental constitutional rights. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971); State v. Lindquist, 14 N.C. App. 361, 188 S.E.2d 686, 1972 N.C. App. LEXIS 2132 (1972).

Defendant’s Non-Verbal Response Was Valid Consent. —

For purposes of G.S. 15A-221(b), defendants nonverbal response after a detective knocked on the hotel room door, made defendant aware that the detective was a police officer, engaged in conversation, and asked to come in, constituted valid consent for the detective and another officer to enter the hotel room. State v. Harper, 158 N.C. App. 595, 582 S.E.2d 62, 2003 N.C. App. LEXIS 1278 (2003).

Voluntariness Is Question of Fact. —

The question whether a consent to a search was in fact “voluntary” or was the product of duress or coercion, expressed or implied, is a question of fact to be determined from the totality of all the circumstances. State v. Brown, 306 N.C. 151, 293 S.E.2d 569, 1982 N.C. LEXIS 1447, cert. denied, 459 U.S. 1080, 103 S. Ct. 503, 74 L. Ed. 2d 642 (1982).

Hearing as to Voluntariness. —

When the validity of a consent to search is challenged, the trial court must conduct a voir dire hearing to determine whether the consent was in fact given voluntarily and without compulsion. State v. Brown, 306 N.C. 151, 293 S.E.2d 569, 1982 N.C. LEXIS 1447, cert. denied, 459 U.S. 1080, 103 S. Ct. 503, 74 L. Ed. 2d 642 (1982).

Consent Did Not Need to Be in Writing. —

In its order, the trial court found that the defendant refused to sign a consent form and then concluded that the State had failed to satisfy its burden of proving that the defendant had given consent to search. The trial court’s finding did not support its conclusion, and the conclusion appeared to be based on a legal misperception that consent must be in writing to be valid. There is no requirement that consent to search be made in writing, and the trial court’s order simply did not resolve the issue of fact of whether the defendant gave his oral consent to search the vehicle. The evidence at the suppression hearing presented a question of fact which can be resolved only by the factfinder, largely on the credibility of the witnesses, and the case had to be remanded for a new hearing on defendant’s motion to suppress. State v. Ghaffar, 93 N.C. App. 281, 377 S.E.2d 818, 1989 N.C. App. LEXIS 175 (1989).

Officer’s threat to impound defendant’s car if he would not consent to a search of the car did not constitute duress and negate the voluntary character of defendant’s consent to search, since the officer had the legal right to impound the car, where the officer had probable cause to search. State v. Paschal, 35 N.C. App. 239, 241 S.E.2d 92, 1978 N.C. App. LEXIS 2932 (1978).

Implied consent. —

Trial court did not err in denying defendant’s motion to suppress evidence seized during a warrantless entry into the residence he shared with his mother because the facts supported the trial court’s conclusion that implied consent to search was given; once defendant’s mother told police officers that defendant had a gun in the residence, and defendant confirmed the presence of a gun in the residence and where it could be located, the officers were justified in entering the residence and seizing the weapon, and defendant and his mother, both co-habitants of the residence, gave consent through their words and actions for the officers to enter the residence and seize the weapon. State v. McLeod, 197 N.C. App. 707, 682 S.E.2d 396, 2009 N.C. App. LEXIS 1067 (2009).

Use of Evidence Obtained in Search by Consent. —

Evidence obtained pursuant to the search of an automobile with the permission of the one in possession is competent against him and the occupants. State v. Jefferies, 41 N.C. App. 95, 254 S.E.2d 550, 1979 N.C. App. LEXIS 2397, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1519 (1979).

Handgun, cocaine, and several thousand dollars in cash found in a safe in the bedroom of defendant’s apartment were admissible because the contents of the safe were discovered as the result of a valid consent search, pursuant to G.S. 15A-221 and G.S. 15A-222; defendant was arrested outside his apartment building after a confidential police informant made a controlled purchase of cocaine from defendant; defendant was taken in handcuffs to his apartment; defendant, without being advised of his Miranda rights, consented to a search of rooms his apartment; defendant gave the officers the combination to the safe in his bedroom at their request; and at no time did defendant withdraw his consent to the search. State v. Houston, 169 N.C. App. 367, 610 S.E.2d 777, 2005 N.C. App. LEXIS 606 (2005).

Obtaining a search warrant does not negate prior consent to a search. State v. Brown, 306 N.C. 151, 293 S.E.2d 569, 1982 N.C. LEXIS 1447, cert. denied, 459 U.S. 1080, 103 S. Ct. 503, 74 L. Ed. 2d 642 (1982).

Person Without Title Without Standing to Object to Search of Car. —

Burglary defendant had no standing to object to the search of a car from which evidence was taken by the FBI, where, although defendant had paid $3,500 of the $4,000 purchase price, the owner of the car dealership retained title and had given his consent to the search. State v. Mandina, 91 N.C. App. 686, 373 S.E.2d 155, 1988 N.C. App. LEXIS 911 (1988).

Consent to Search Was Not Involuntary. —

In a case in which defendant argued that the trial court erred in denying his motion to suppress the evidence seized and the statements made on the day of his arrest, he argued unsuccessfully that his consent to search his house was involuntary because of the police officers’ intimidation of him. Though the officers kicked down the door as they entered defendant’s house, they did not place him in handcuffs immediately; rather, defendant sat in his own living room and conversed freely with various officers, and one officer even escorted him to his neighbor’s house in order to find someone to care for his child. State v. Stover, 200 N.C. App. 506, 685 S.E.2d 127, 2009 N.C. App. LEXIS 1734 (2009).

Consent Given and Not Revoked. —

Search of the defendant’s trunk after the officers received consent from defendant was proper and the statement that officers were “tearing up” his car was not an unequivocal revocation of defendant’s consent to search. State v. Schiro, 219 N.C. App. 105, 723 S.E.2d 134, 2012 N.C. App. LEXIS 245 (2012).

§ 15A-222. Person from whom effective consent may be obtained.

The consent needed to justify a search and seizure under G.S. 15A-221 must be given:

  1. By the person to be searched;
  2. By the registered owner of a vehicle to be searched or by the person in apparent control of its operation and contents at the time the consent is given;
  3. By a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of premises.

History. 1973, c. 1286, s. 1.

CASE NOTES

Consent by Person in Possession of Automobile. —

Evidence obtained pursuant to the search of an automobile with the permission of the one in possession is competent against him and the occupants. State v. Faison, 17 N.C. App. 200, 193 S.E.2d 334, 1972 N.C. App. LEXIS 1623 (1972), cert. denied, 283 N.C. 258, 195 S.E.2d 690, 1973 N.C. LEXIS 947 (1973); State v. Jefferies, 41 N.C. App. 95, 254 S.E.2d 550, 1979 N.C. App. LEXIS 2397, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1519 (1979).

Where defendant gave consent to the search of defendant’s vehicle while defendant was seated in the patrol car with the officer who was writing defendant’s traffic citation, the consent was validly given pursuant to G.S. 15A-222, N.C. Const. art. I, § 20, and U.S. Const. amend. IV; the officer read a consent form to defendant which defendant signed, and defendant stated that defendant believed defendant was free to leave after the citation was issued. State v. Hernandez, 170 N.C. App. 299, 612 S.E.2d 420, 2005 N.C. App. LEXIS 1006 (2005).

Registered Owner as Proper Person to Give Consent. —

Defendant’s mother, registered owner of car, and not defendant, who contended that as the “actual” owner/purchaser of the car, his consent was necessary as long as he was present, was the proper party to consent to search of automobile under this section. State v. Washington, 86 N.C. App. 235, 357 S.E.2d 419, 1987 N.C. App. LEXIS 2693 (1987), cert. denied, 322 N.C. 485, 370 S.E.2d 235, 1988 N.C. LEXIS 329 (1988).

Tenant in possession of the premises is a person entitled to give consent to a search of the premises under subdivision (3) of this section. State v. Reagan, 35 N.C. App. 140, 240 S.E.2d 805, 1978 N.C. App. LEXIS 2884 (1978).

The lessee of an apartment was a person authorized to give consent to a search of the premises. State v. McNeill, 33 N.C. App. 317, 235 S.E.2d 274, 1977 N.C. App. LEXIS 2186 (1977).

Standing of Person “in Charge” of Premises. —

Defendant, as agent of the lessee of the premises, and as a joint venturer with him in operating a gambling establishment thereon, was the person in charge of the premises at the time the search was made, and had sufficient standing to invoke protection against an unlawful search of the premises. State v. Miller, 16 N.C. App. 1, 190 S.E.2d 888, 1972 N.C. App. LEXIS 1633 (1972), modified, 282 N.C. 633, 194 S.E.2d 353, 1973 N.C. LEXIS 1135 (1973) (decided under prior law).

This statute places no express restriction on the authority of a wife to consent to a search of the premises she shares with her husband. Nor can such a restriction fairly be read into the broad language, since a wife clearly is “a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of [the] premises” she shares with her husband. State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

Third Party Must Possess Common Authority or Other Sufficient Relationship. —

Permission to justify a search and seizure under G.S. 15A-221 may be obtained from a third party who possessed common authority or other sufficient relationship to the premises or effects sought to be inspected. State v. Kellam, 48 N.C. App. 391, 269 S.E.2d 197, 1980 N.C. App. LEXIS 3246 (1980).

A person may consent to a search of premises he or she jointly uses or occupies with another, and evidence found pursuant to such a search may constitutionally be used against the other if the person giving consent to the search has rights of use or occupation at least equal to those of the other. State v. Sturke, 91 N.C. App. 249, 371 S.E.2d 288, 1988 N.C. App. LEXIS 806 (1988).

Owner’s Consent to Search of Safe. —

Handgun, cocaine, and several thousand dollars in cash found in a safe in the bedroom of defendant’s apartment were admissible because the contents of the safe were discovered as the result of a valid consent search, pursuant to G.S. 15A-221 and G.S. 15A-222; defendant was arrested outside his apartment building after a confidential police informant made a controlled purchase of cocaine from defendant; defendant was taken in handcuffs to his apartment; defendant, without being advised of his Miranda rights, consented to a search of rooms his apartment; defendant gave the officers the combination to the safe in his bedroom at their request; and at no time did defendant withdraw his consent to the search. State v. Houston, 169 N.C. App. 367, 610 S.E.2d 777, 2005 N.C. App. LEXIS 606 (2005).

Consent of Spouse to Search Hotel Room. —

Officer reasonably accepted consent from defendant’s wife to search the hotel room where the two were staying, as the wife was found outside the room, identified herself, and explained that the wife was staying in the subject room with defendant. State v. Toney, 187 N.C. App. 465, 653 S.E.2d 187, 2007 N.C. App. LEXIS 2448 (2007).

Expectation of Privacy Not Relinquished by Lack of Possession. —

In a prosecution for a drug offense where defendant entrusted the safekeeping of his suitcase with codefendant and codefendant told police he could not consent to the search of defendant’s suitcase because it was not codefendant’s, defendant had not relinquished his expectations of privacy in the contents of the suitcase through his lack of actual possession. State v. Cooke, 54 N.C. App. 33, 282 S.E.2d 800, 1981 N.C. App. LEXIS 2784 (1981), aff'd, 306 N.C. 132, 291 S.E.2d 618, 1982 N.C. LEXIS 1378 (1982).

Person Without Title Without Standing to Object to Search of Car. —

Burglary defendant had no standing to object to the search of a car from which evidence was taken by the FBI, where, although defendant had paid $3,500 of the $4,000 purchase price, the owner of the car dealership retained title and had given his consent to the search. State v. Mandina, 91 N.C. App. 686, 373 S.E.2d 155, 1988 N.C. App. LEXIS 911 (1988).

Consent Given to Search Trunk. —

Search of the defendant’s trunk after the officers received consent from defendant was proper and the statement that officers were “tearing up” his car was not an unequivocal revocation of defendant’s consent to search. State v. Schiro, 219 N.C. App. 105, 723 S.E.2d 134, 2012 N.C. App. LEXIS 245 (2012).

Valid Third Party Consent for Search Shown. —

Finding by the trial court that there was valid third party consent to search defendant’s residence was supported by evidence where defendant’s mother, who owned residence and lived there with him, gave police permission to search residence, including defendant’s bedroom, and when asked if defendant was paying rent, she replied “No” but also said that defendant was “paying his way”. State v. Russell, 92 N.C. App. 639, 376 S.E.2d 458, 1989 N.C. App. LEXIS 60 (1989).

Trial court did not err in denying defendant’s motion to suppress evidence seized during a warrantless entry into the residence he shared with his mother because the facts supported the trial court’s conclusion that implied consent to search was given; once defendant’s mother told police officers that defendant had a gun in the residence, and defendant confirmed the presence of a gun in the residence and where it could be located, the officers were justified in entering the residence and seizing the weapon, and defendant and his mother, both co-habitants of the residence, gave consent through their words and actions for the officers to enter the residence and seize the weapon. State v. McLeod, 197 N.C. App. 707, 682 S.E.2d 396, 2009 N.C. App. LEXIS 1067 (2009).

Consent to Search Was Not Involuntary. —

In a case in which defendant argued that the trial court erred in denying his motion to suppress the evidence seized and the statements made on the day of his arrest, he argued unsuccessfully that his consent to search his house was involuntary because of the police officers’ intimidation of him. Though the officers kicked down the door as they entered defendant’s house, they did not place him in handcuffs immediately; rather, defendant sat in his own living room and conversed freely with various officers, and one officer even escorted him to his neighbor’s house in order to find someone to care for his child. State v. Stover, 200 N.C. App. 506, 685 S.E.2d 127, 2009 N.C. App. LEXIS 1734 (2009).

§ 15A-223. Permissible scope of consent search and seizure.

  1. Search Limited by Scope of Consent. —  A search conducted pursuant to the provisions of this Article may not exceed, in duration or physical scope, the limits of the consent given.
  2. Items Seizable as Result of Consent Search. —  The things subject to seizure in the course of a search pursuant to this Article are the same as those specified in G.S. 15A-242. Upon completion of the search, the officer must make a list of the things seized, and must deliver a receipt embodying the list to the person who consented to the search and, if known, to the owner of the vehicle or premises searched.

History. 1973, c. 1286, s. 1.

Legal Periodicals.

For note on the Supreme Court’s stance on plain view searches and seizures, see 10 Campbell L. Rev. 331 (1988).

CASE NOTES

Failure to comply with subsection (b) has no constitutional significance within the meaning of G.S. 15A-974(1). State v. Richardson, 295 N.C. 309, 245 S.E.2d 754, 1978 N.C. LEXIS 885 (1978).

Police officer’s delivery of seizure inventory form to defendant was not an “initiation” of conversation. Indeed, law-enforcement authorities are required to make a list of the things seized, and deliver a receipt embodying the list to the person who consented to the search. The fact that delivery of the receipt was made after a request for the presence of an attorney does not alter the routineness of such a delivery nor does it thereby constitute the initiation of questioning. State v. Williams, 314 N.C. 337, 333 S.E.2d 708, 1985 N.C. LEXIS 1879 (1985).

Seizure of Contraband in Plain View. —

In a prosecution for drug offenses where defendant consented to the search of his aircraft and during the search contraband was found in plain view, seizure of the contraband was not unconstitutional. State v. Mettrick, 54 N.C. App. 1, 283 S.E.2d 139, 1981 N.C. App. LEXIS 2778 (1981), aff'd, 305 N.C. 383, 289 S.E.2d 354, 1982 N.C. LEXIS 1272 (1982).

Broadening of Consent. —

Where the consent signed by defendant applied only to a search of his vehicle, the consent could not be broadened to include the defendant’s person; thus, the search of defendant was unlawful. State v. Pearson, 348 N.C. 272, 498 S.E.2d 599, 1998 N.C. LEXIS 218 (1998).

§§ 15A-224 through 15A-230.

Reserved for future codification purposes.

Article 10. Other Searches and Seizures.

§ 15A-231. Other searches and seizures.

Constitutionally permissible searches and seizures which are not regulated by the General Statutes of North Carolina are not prohibited.

History. 1973, c. 1286, s. 1.

Official Commentary

This Article makes clear that common-law search powers not regulated by the General Statutes are not thereby prohibited. Among the search powers not regulated are searches incident to arrest, frisks incident to lawful confrontation, and emergency searches.

Legal Periodicals.

For article discussing the search and seizure provisions of Chapter 15A, see 52 N.C.L. Rev. 277 (1973).

For survey of 1977 law on criminal procedure, see 56 N.C.L. Rev. 983 (1978).

For note on the Supreme Court stance on plain view searches and seizures, see 10 Campbell L. Rev. 331 (1988).

For comment, “Big Brother is Watching You: Government Surveillance Through Cell Site Location Information and the Fourth Circuit’s Attempt to Stop It,” see 51 Wake Forest L. Rev. 493 (2016).

For comment, “When One Word Changes Everything: How the Unitary Concept Dismantles the Basis of Terry Frisks,” see 97 N.C.L. Rev. 192 (2018).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Some of the cases below were decided under former similar provisions of Chapter 15 and earlier statutes.

Probable cause to seize may be defined as a reasonable ground to believe that the object seized will aid in the apprehension or conviction of the offender. State v. Mitchell, 300 N.C. 305, 266 S.E.2d 605, 1980 N.C. LEXIS 1068 (1980), cert. denied, 449 U.S. 1085, 101 S. Ct. 873, 66 L. Ed. 2d 810, 1981 U.S. LEXIS 375 (1981).

To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979); State v. Mitchell, 300 N.C. 305, 266 S.E.2d 605, 1980 N.C. LEXIS 1068 (1980), cert. denied, 449 U.S. 1085, 101 S. Ct. 873, 66 L. Ed. 2d 810, 1981 U.S. LEXIS 375 (1981).

Test Is Whether Warrant Would Issue. —

One does not have probable cause unless he has information of facts which, if submitted to a magistrate, would require the issuance of an arrest warrant. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979).

Probable Cause Determined from Factual and Practical Considerations. —

The existence of “probable cause,” justifying a search without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979); State v. Mitchell, 300 N.C. 305, 266 S.E.2d 605, 1980 N.C. LEXIS 1068 (1980), cert. denied, 449 U.S. 1085, 101 S. Ct. 873, 66 L. Ed. 2d 810, 1981 U.S. LEXIS 375 (1981).

Reasonableness of Search Determined from Facts. —

Whether a search is unreasonable is determined by the court upon the facts of each individual case. State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

The reasonableness of a search is a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the criteria laid down by U.S. Const., Amend. IV and opinions which apply that amendment. State v. Turnbull, 16 N.C. App. 542, 192 S.E.2d 689, 1972 N.C. App. LEXIS 1755 (1972).

Subjective Opinion and Mistaken Conclusion of Officer. —

The officer’s subjective opinion is not material, nor are the courts bound by an officer’s mistaken legal conclusion as to the existence or nonexistence of probable cause or reasonable grounds for his actions; a search or seizure is valid when the objective facts known to the officer meet the standard required. State v. Peck, 305 N.C. 734, 291 S.E.2d 637, 1982 N.C. LEXIS 1375 (1982).

Actions Not Constituting Search. —

Where a petitioner’s privacy was not invaded, and where there was no inspection or examination of his household, there was no search either in an actual or legal sense. State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

When the evidence is delivered to a police officer upon request and without compulsion or coercion, there is no search within the constitutional prohibition against unreasonable searches and seizures. State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

Where the circumstances require no search the constitutional immunity never arises, and the guarantee against unreasonable searches and seizures does not prohibit a warrantless seizure where the contraband subject matter is fully disclosed and open to the eye and hand. State v. Smith, 289 N.C. 143, 221 S.E.2d 247, 1976 N.C. LEXIS 1238 (1976).

When Exclusionary Rule Applies. —

Evidence is not rendered incompetent under the exclusionary rule unless it is obtained in the course of an illegal search. State v. Powell, 11 N.C. App. 465, 181 S.E.2d 754, 1971 N.C. App. LEXIS 1561, cert. denied, 279 N.C. 396, 183 S.E.2d 243, 1971 N.C. LEXIS 832 (1971).

Seizure and Introduction of Evidence Not Prohibited Where No Search Required. —

The constitutional and statutory guarantee against unreasonable search and seizure does not prohibit seizure of evidence and its introduction into evidence on a subsequent prosecution where no search is required. State v. Simmons, 278 N.C. 468, 180 S.E.2d 97, 1971 N.C. LEXIS 991 (1971).

The constitutional guarantee against unreasonable searches and seizures does not prohibit a seizure of evidence without a warrant where no search is required. State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

Warrantless Search Must Fall Within Well-Delineated Exception. —

The governing premise of U.S. Const., Amend. IV is that a governmental search and seizure of private property unaccompanied by prior judicial approval in the form of a warrant is per se unreasonable, unless the search falls within a well-delineated exception to the warrant requirement involving exigent circumstances. State v. Cooke, 306 N.C. 132, 291 S.E.2d 618, 1982 N.C. LEXIS 1378 (1982).

Warrantless Search Never Required. —

The laws of this State provide for searches made pursuant to a warrant and do not require a warrantless search under any circumstances. State v. Squire, 302 N.C. 112, 273 S.E.2d 688, 1981 N.C. LEXIS 1036 (1981).

Burden of Justifying Warrantless Search. —

One who seeks to justify a warrantless search has the burden of showing that the exigencies of the situation made search without a warrant imperative. State v. McCloud, 276 N.C. 518, 173 S.E.2d 753, 1970 N.C. LEXIS 717 (1970).

When the State seeks to admit evidence discovered by way of a warrantless search in a criminal prosecution, it must first show how the former intrusion was exempted from the general constitutional demand for a warrant. State v. Cooke, 306 N.C. 132, 291 S.E.2d 618, 1982 N.C. LEXIS 1378 (1982).

Standing to Contest Warrantless Search. —

Where victim’s pocketbook was found in defendant’s car and searched pursuant to a warrantless probable cause search, the contents of the pocketbook should not have been suppressed at trial since one may not object to a search or seizure of the premises or property of another because immunity to unreasonable searches and seizures is a privilege personal to those whose rights thereunder have been infringed; thus, absent ownership or possessory interest in the premises or property, a person has no standing to contest the validity of a search. State v. Greenwood, 301 N.C. 705, 273 S.E.2d 438, 1981 N.C. LEXIS 1025 (1981).

Reasonable Cause for Seizure of Contraband Without Warrant. —

When officers saw liquid in containers generally used to contain and transport nontaxpaid liquor, under the circumstances then existing, they had sufficient reasonable cause to believe that the jars contained nontaxpaid liquor to justify the seizure of the contraband without a search warrant. State v. Simmons, 278 N.C. 468, 180 S.E.2d 97, 1971 N.C. LEXIS 991 (1971).

Border Searches. —

Searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border. State v. Rivard, 57 N.C. App. 672, 292 S.E.2d 174, 1982 N.C. App. LEXIS 2698 (1982).

The single fact that the person or item in question has entered the United States from outside suffices to endow border searches with the reasonableness required by U.S. Const., Amend. IV; there is no additional requirement that there be a showing of probable cause or the prior procurement of a search warrant. State v. Rivard, 57 N.C. App. 672, 292 S.E.2d 174, 1982 N.C. App. LEXIS 2698 (1982).

Searches of Open Fields. —

There was no merit in defendant’s contention that a search warrant was invalid on the ground that the affidavit for the warrant revealed that the affiant had illegally searched a cornfield in which marijuana was growing some distance behind defendant’s residence prior to issuance of the warrant, since the constitutional guaranties against unreasonable search and seizure do not apply to open fields or other lands not an immediate part of the dwelling site. State v. Spencer, 281 N.C. 121, 187 S.E.2d 779, 1972 N.C. LEXIS 1013 (1972).

Persons stopped pursuant to G.S. 20-183 may not be indiscriminately searched or arrested without probable cause in contravention of recognized constitutional principles. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979).

II.Search Incident to Arrest or Other Detention

Search Incident to Lawful Arrest. —

A police officer may search the person of one whom he has lawfully arrested as an incident of such arrest. State v. Parker, 11 N.C. App. 648, 182 S.E.2d 264 (1971); State v. Jackson, 11 N.C. App. 682, 182 S.E.2d 271, aff’d, 280 N.C. 122, 185 S.E.2d 202 (1971); State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971); State v. Gibson, 15 N.C. App. 445, 190 S.E.2d 315 (1972); State v. Hughes, 27 N.C. App. 164, 218 S.E.2d 211 (1975). In accord with first paragraph in the main volume. See State v. Adkerson, 90 N.C. App. 333, 368 S.E.2d 434, 1988 N.C. App. LEXIS 527 (1988).

When a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. State v. Harris, 279 N.C. 307, 182 S.E.2d 364, 1971 N.C. LEXIS 778 (1971); State v. Jackson, 280 N.C. 122, 185 S.E.2d 202, 1971 N.C. LEXIS 1101 (1971); State v. Streeter, 283 N.C. 203, 195 S.E.2d 502, 1973 N.C. LEXIS 932 (1973); State v. Young, 27 N.C. App. 308, 219 S.E.2d 261, 1975 N.C. App. LEXIS 1830 (1975), cert. denied, 289 N.C. 455, 223 S.E.2d 164, 1976 N.C. LEXIS 1321 (1976).

A warrantless search and seizure may be made when it is incident to a valid arrest. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979).

Having every reason to believe that a defendant was an armed robber, fleeing from the scene of a crime just perpetrated, it is lawful for the officer, as an incident of the arrest, to search a defendant then and there for weapons and for the fruits of the robbery. State v. Woody, 277 N.C. 646, 178 S.E.2d 407, 1971 N.C. LEXIS 1060 (1971).

Property Which May Be Taken in Course of Search Incident to Lawful Arrest. —

In the course of a search incident to an arrest, an officer may lawfully take from the person arrested any property which such person has about him and which is connected with the crime charged or which may be required as evidence thereof; if such article is otherwise competent, it may properly be introduced in evidence by the State. State v. Parker, 11 N.C. App. 648, 182 S.E.2d 264, 1971 N.C. App. LEXIS 1604, cert. denied, 279 N.C. 396, 183 S.E.2d 247, 1971 N.C. LEXIS 831 (1971); State v. Harris, 279 N.C. 307, 182 S.E.2d 364, 1971 N.C. LEXIS 778 (1971); State v. Jackson, 280 N.C. 122, 185 S.E.2d 202, 1971 N.C. LEXIS 1101 (1971); State v. Hart, 64 N.C. App. 699, 308 S.E.2d 474, 1983 N.C. App. LEXIS 3359 (1983).

An arresting officer has the authority to seize and hold articles which he sees the accused trying to hide. State v. Fry, 13 N.C. App. 39, 185 S.E.2d 256, 1971 N.C. App. LEXIS 1154 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 514, 1972 N.C. LEXIS 1272 (1972).

Weapon Need Not Be on Person Arrested. —

In order to justify the seizure of a weapon as being incident to a lawful arrest it is not necessary that the weapon be on the person being arrested. State v. Richards, 294 N.C. 474, 242 S.E.2d 844, 1978 N.C. LEXIS 1287 (1978).

Officer May Search Person Temporarily Detained. —

When an officer temporarily detains a person because of suspicious circumstances and has reason to believe that the suspect is armed, he may conduct a weapons search which is limited to the protective purpose. State v. Streeter, 17 N.C. App. 48, 193 S.E.2d 347, 1972 N.C. App. LEXIS 1559 (1972), aff'd, 283 N.C. 203, 195 S.E.2d 502, 1973 N.C. LEXIS 932 (1973).

And Other Evidence Found Need Not Be Disregarded. —

If, in the conduct of the limited weapons search, contraband or evidence of a crime is of necessity exposed, the officer is not required by the Fourth Amendment to disregard such contraband or evidence of crime. State v. Streeter, 17 N.C. App. 48, 193 S.E.2d 347, 1972 N.C. App. LEXIS 1559 (1972), aff'd, 283 N.C. 203, 195 S.E.2d 502, 1973 N.C. LEXIS 932 (1973).

Items So Obtained Are Not Excluded. —

When law officers stopped to learn defendant’s identity and his reason for being on deserted street near business establishments at 2:45 A.M., and the officers saw a bulge protruding from beneath defendant’s shirt which appeared to be a gun, it was reasonable for the officers to conduct a limited protective search for weapons immediately, even if the officers had no probable cause to arrest defendant, and burglary tools necessarily exposed by the limited weapons search were lawfully obtained and not excluded by either U.S. Const., Amend. 4 or the State statute. State v. Streeter, 283 N.C. 203, 195 S.E.2d 502, 1973 N.C. LEXIS 932 (1973).

Absence of a stop-and-frisk statute is not fatal to the authority of law-enforcement officers in North Carolina to stop suspicious persons for questioning and to search those persons for dangerous weapons, since those practices are valid under the common law. State v. Streeter, 283 N.C. 203, 195 S.E.2d 502, 1973 N.C. LEXIS 932 (1973).

Arrest Without Warrant Must Be Valid for Search to Be Valid. —

Although a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, the arrest must be made with probable cause. State v. Harris, 9 N.C. App. 649, 177 S.E.2d 445, 1970 N.C. App. LEXIS 1428 (1970), aff'd, 279 N.C. 307, 182 S.E.2d 364, 1971 N.C. LEXIS 778 (1971).

Evidence Obtained Following Illegal Warrantless Arrest. —

Nothing in State law requires the exclusion of evidence obtained following an arrest which is constitutionally valid but illegal for failure to first obtain an arrest warrant. Defendant may, if so advised, redress his grievance for the warrantless arrest by a civil action for damages. State v. Eubanks, 283 N.C. 556, 196 S.E.2d 706, 1973 N.C. LEXIS 1004 (1973).

Search and Seizure Must Be Substantially Contemporaneous with Arrest. —

For a search and seizure incident to a lawful arrest to be constitutionally permissible, it must be substantially contemporaneous with the arrest. State v. Jackson, 280 N.C. 122, 185 S.E.2d 202, 1971 N.C. LEXIS 1101 (1971).

Search Made After Defendant Is in Custody Is Not Incident to Arrest. —

A search yielding burglary tools cannot be justified as a search incident to defendant’s arrest where the search was made after defendant was under arrest and in custody at the police station. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979).

Search Held Not Remote in Time or Place. —

Neither the removal of a female defendant to the jail nor the delay of 30 to 45 minutes waiting for the matron to search her made a search too remote in time or place to be invalid as a search incident to a lawful arrest. State v. Jackson, 280 N.C. 122, 185 S.E.2d 202, 1971 N.C. LEXIS 1101 (1971).

Officer May Continue Search After Interruption by Hostile Crowd. —

Where the officers cut short that initial search because of a growing and hostile crowd, and the danger from possible concealed weapons was not entirely eliminated by the initial quick search, it was reasonable to continue the search at the police station. State v. Gibson, 15 N.C. App. 445, 190 S.E.2d 315, 1972 N.C. App. LEXIS 1937 (1972).

Search of Prison Escapees. —

Once prison escapees are apprehended, it is entirely reasonable for the police to search them, and the fruits of that search are admissible in evidence in the case. State v. White, 21 N.C. App. 173, 203 S.E.2d 644, 1974 N.C. App. LEXIS 1750, cert. denied, 285 N.C. 595, 205 S.E.2d 726, 1974 N.C. LEXIS 1051 (1974).

Arrest Held Complete for Purposes of Search Incident Thereto. —

Where it was not clear whether the arresting officers stated to the defendant that he was under arrest when they took him into custody, but where it was clear that defendant was deprived of his liberty when he was detained and later taken to jail, then his arrest was complete for purposes of making a search incident to the arrest. State v. Jackson, 280 N.C. 122, 185 S.E.2d 202, 1971 N.C. LEXIS 1101 (1971).

Search Incident to Warrantless Arrest Held Proper. —

Where facts fully support the conclusion that the arresting officers had reasonable grounds to believe that defendant had committed a felony and unless defendant was apprehended, he might escape and destroy any narcotic drugs he had on his person, the arrest without a warrant was justified, and a search incident to the arrest was proper. State v. Jackson, 280 N.C. 122, 185 S.E.2d 202, 1971 N.C. LEXIS 1101 (1971).

III.Search of Vehicle

Warrantless Searches of Automobiles Not Regulated by General Statutes. —

Warrantless searches of automobiles and seizures of contraband therefrom without consent are not per se regulated by the North Carolina General Statutes. State v. Summerlin, 35 N.C. App. 522, 241 S.E.2d 732, 1978 N.C. App. LEXIS 3017, cert. denied, 294 N.C. 739, 244 S.E.2d 157, 1978 N.C. LEXIS 1317 (1978).

When Vehicle May Be Searched Without Warrant. —

Automobiles and other conveyances may be searched without a warrant under circumstances that would not justify the search of a house, and a police officer in the exercise of his duties may search an automobile or other conveyance without a search warrant when the existing facts and circumstances are sufficient to support a reasonable belief that the automobile or other conveyance carries contraband materials. State v. Simmons, 278 N.C. 468, 180 S.E.2d 97, 1971 N.C. LEXIS 991 (1971); State v. Faison, 17 N.C. App. 200, 193 S.E.2d 334, 1972 N.C. App. LEXIS 1623 (1972), cert. denied, 283 N.C. 258, 195 S.E.2d 690, 1973 N.C. LEXIS 947 (1973).

A warrantless search of a vehicle capable of movement out of the location or jurisdiction may be conducted by officers when they have probable cause to search and exigent circumstances make it impracticable to secure a search warrant. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979); State v. Summerlin, 35 N.C. App. 522, 241 S.E.2d 732, 1978 N.C. App. LEXIS 3017, cert. denied, 294 N.C. 739, 244 S.E.2d 157, 1978 N.C. LEXIS 1317 (1978); State v. Mitchell, 300 N.C. 305, 266 S.E.2d 605, 1980 N.C. LEXIS 1068 (1980), cert. denied, 449 U.S. 1085, 101 S. Ct. 873, 66 L. Ed. 2d 810, 1981 U.S. LEXIS 375 (1981).

Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office; however, the officers conducting the search must have reasonable or probable cause to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search. State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179, 1972 N.C. LEXIS 1082 (1972).

In recognition of the mobility of automobiles, a search of an automobile without a warrant is constitutionally permissible if there is probable cause to make the search. State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179, 1972 N.C. LEXIS 1082 (1972).

A warrantless search of an automobile may be constitutionally reasonable if there is probable cause to make the search. State v. Mackey, 56 N.C. App. 468, 291 S.E.2d 663, 1982 N.C. App. LEXIS 2626 (1982).

Automobile Search Not Dependent on Right to Arrest. —

The right to search an automobile on probable cause and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law. State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179, 1972 N.C. LEXIS 1082 (1972).

And Proceeds on Different Theory. —

The search of an automobile on probable cause proceeds on a theory entirely different from that justifying the search incident to an arrest. State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179, 1972 N.C. LEXIS 1082 (1972).

Automobile May Be Searched Without Warrant or Held Pending Issuance. —

If there is probable cause to search an automobile, the officer may either seize and hold the vehicle before presenting the probable-cause issue to a magistrate, or he may carry out an immediate search without a warrant. State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179, 1972 N.C. LEXIS 1082 (1972).

Impoundment of Vehicle Pending Issuance of Warrant. —

In a prosecution for rape, defendant could not complain that officers chose to afford defendant the protection of impounding his vehicle and keeping it locked and under custody until a search warrant could be obtained rather than seizing a knife which was in plain view on the dashboard of the car at the time the car was impounded. State v. Squire, 302 N.C. 112, 273 S.E.2d 688, 1981 N.C. LEXIS 1036 (1981).

Reasonable Cause for Stop and Search of Vehicle. —

In a prosecution for felonious possession of marijuana, there was no merit to defendants’ contention that an officer did not have reasonable suspicions based upon definite facts that defendants were engaged in or had engaged in criminal conduct when he stopped their vehicle, where the evidence tended to show that the officer noticed the defendants late at night in a seasonably unoccupied residential area, that the officer knew only one of the residences was occupied at that time of the year, and that the officer was aware of reports of “fire-lighting” deer in that area on several occasions. State v. Tillett, 50 N.C. App. 520, 274 S.E.2d 361, 1981 N.C. App. LEXIS 2140 (1981).

Absence of Connection Between Vehicle Searched and Evidence Sought. —

Where from the facts as found by the trial court, officer knew of no connection between defendant’s van and marijuana which had apparently been removed from a certain house, trial court properly concluded that officer did not have probable cause to search the van. State v. Mackey, 56 N.C. App. 468, 291 S.E.2d 663, 1982 N.C. App. LEXIS 2626 (1982).

IV.Evidence in Plain View or Inadvertently Discovered

Section Incorporates Plain View Doctrine. —

This section incorporated the United States Supreme Court “plain view” exception to the warrant requirement, which permits inclusion in evidence of the fruit of a legal, warrantless presence. State v. Blackwelder, 34 N.C. App. 352, 238 S.E.2d 190, 1977 N.C. App. LEXIS 1696 (1977).

Plain view doctrine is firmly established and consistently supported by both State and federal courts. State v. Smith, 289 N.C. 143, 221 S.E.2d 247, 1976 N.C. LEXIS 1238 (1976).

Constitutional guaranty against unreasonable searches and seizures does not apply where a search is not necessary, and where the contraband subject matter is fully disclosed and open to the eye and the hand. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706, 1972 N.C. LEXIS 1321 (1972).

Warrant Not Required Where Article Seized Is in Plain View. —

The law does not prohibit a seizure without a warrant by an officer in the discharge of his official duties where the article seized is in plain view. State v. Robbins, 275 N.C. 537, 169 S.E.2d 858, 1969 N.C. LEXIS 436 (1969); State v. Parks, 14 N.C. App. 97, 187 S.E.2d 462, 1972 N.C. App. LEXIS 2045, cert. denied, 281 N.C. 157, 188 S.E.2d 366, 1972 N.C. LEXIS 1036 (1972); State v. Smith, 289 N.C. 143, 221 S.E.2d 247, 1976 N.C. LEXIS 1238 (1976).

The “plain view” doctrine states that a law-enforcement officer may properly seize evidence in plain view without a search warrant if the officer has prior justification for the intrusion onto the premises being searched, other than observing the object which is later contended to have been in plain view, and the incriminating evidence must be inadvertently discovered by the officer while on the premises. State v. Tillett, 50 N.C. App. 520, 274 S.E.2d 361, 1981 N.C. App. LEXIS 2140 (1981).

It is lawful and proper for an officer to seize an article in the discharge of his official duties without a warrant where the article is in plain view. State v. Powell, 11 N.C. App. 465, 181 S.E.2d 754, 1971 N.C. App. LEXIS 1561, cert. denied, 279 N.C. 396, 183 S.E.2d 243, 1971 N.C. LEXIS 832 (1971).

A search ordinarily involves prying into hidden places, and a seizure contemplates forcible dispossession. However, a police officer may seize and use what he sees in plain sight if he is at a place where he is lawfully entitled to be. State v. Fry, 13 N.C. App. 39, 185 S.E.2d 256, 1971 N.C. App. LEXIS 1154 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 514, 1972 N.C. LEXIS 1272 (1972).

Evidence obtained by officers without a search warrant is admissible in evidence where the articles are seized in plain view without necessity of search. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979); In re Horne, 50 N.C. App. 97, 272 S.E.2d 905, 1980 N.C. App. LEXIS 3464 (1980).

By being lawfully on the premises officers are entitled to seize such evidentiary objects connected with defendants as are in plain view. State v. Alford, 289 N.C. 372, 222 S.E.2d 222, 1976 N.C. LEXIS 1291, vacated in part, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Evidence of crime falling in the plain view of an officer who has a right to be in a position to have that view is subject to seizure and may be introduced into evidence. State v. Mitchell, 300 N.C. 305, 266 S.E.2d 605, 1980 N.C. LEXIS 1068 (1980), cert. denied, 449 U.S. 1085, 101 S. Ct. 873, 66 L. Ed. 2d 810, 1981 U.S. LEXIS 375 (1981).

Under G.S. 15A-253, the statutory “plain view” doctrine is limited to the inadvertent discovery of items pursuant to a legal search under a valid warrant though these items are not specified in the search warrant. State v. Blackwelder, 34 N.C. App. 352, 238 S.E.2d 190, 1977 N.C. App. LEXIS 1696 (1977).

Constitutionally permissible seizures under the “plain view” exception to U.S. Const., Amend. IV protection against warrantless searches and seizures have been restricted under G.S. 15A-253 to those instances where the officer has legal justification to be at the place where he inadvertently sees a piece of evidence in plain view. The doctrine serves to supplement the prior justification. State v. Blackwelder, 34 N.C. App. 352, 238 S.E.2d 190, 1977 N.C. App. LEXIS 1696 (1977).

Plain view alone is not enough to justify warrantless seizure of evidence. State v. Blackwelder, 34 N.C. App. 352, 238 S.E.2d 190, 1977 N.C. App. LEXIS 1696 (1977).

Plain View Doctrine Applicable. —

Where officer had legal justification to be at the place and in the position he was when he saw the evidence in plain view, the discovery of the evidence was inadvertent and clearly was not the result of a deliberate search, the evidence was immediately apparent and its discovery under the circumstances clearly would warrant a man of reasonable caution in believing that the defendant was in the possession of drugs and was hiding evidence which would incriminate him, and the officer’s observation of the defendant’s condition and the sight of part of the plastic bag which contained the white powdery substance was such as to give a reasonable man the belief that there was evidence of criminal activity present, to-wit, the possession of drugs, the trial court correctly denied defendant’s motion to suppress, reasoning that the plain view doctrine was applicable and all elements were present. State v. Peck, 305 N.C. 734, 291 S.E.2d 637, 1982 N.C. LEXIS 1375 (1982).

Items Inadvertently Uncovered During Search Pursuant to Warrant. —

Where a lawful search pursuant to a search warrant is being conducted, items uncovered during the course of this search may be seized if the items would have been seizable under previously announced rationales for warrantless, plain view seizures (i.e., the items were the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime, or were items for which probable cause existed to believe that they were evidence of criminal activity and would aid in a particular apprehension or conviction), and the items are discovered “inadvertently.” The meaning of the inadvertence requirement is that there must be no intent on the part of investigators to search for and seize the contested items not named in the warrant. State v. Richards, 294 N.C. 474, 242 S.E.2d 844, 1978 N.C. LEXIS 1287 (1978).

Discovery of Other Contraband During Valid Search. —

When officers are conducting a valid search for one type of contraband and find other types of contraband, the law is not so unreasonable as to require them to turn their heads. State v. Oldfield, 29 N.C. App. 131, 223 S.E.2d 569, 1976 N.C. App. LEXIS 2392, cert. denied, 290 N.C. 96, 225 S.E.2d 325, 1976 N.C. LEXIS 1039 (1976).

Failure to Arrest for Crime Under Investigation When Evidence Is Discovered. —

The failure of an officer to actually arrest a defendant for a traffic violation did not render inadmissible the evidence of possession of marijuana which was in plain view while the officer was investigating, before arrest, a crime that he had probable cause to believe had been committed in his presence. State v. Fry, 13 N.C. App. 39, 185 S.E.2d 256, 1971 N.C. App. LEXIS 1154 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 514, 1972 N.C. LEXIS 1272 (1972).

Evidence Exposed in Attempt to Hide It. —

Where the defendant, in an apparent attempt to voluntarily dispose of heroin, unintentionally exposed it to the view of the officers, who then obtained it, it was not obtained in the course of an illegal search. State v. Powell, 11 N.C. App. 465, 181 S.E.2d 754, 1971 N.C. App. LEXIS 1561, cert. denied, 279 N.C. 396, 183 S.E.2d 243, 1971 N.C. LEXIS 832 (1971).

Seizure of contraband, such as burglary tools, does not require a warrant when its presence is fully disclosed without necessity of search. State v. Simmons, 278 N.C. 468, 180 S.E.2d 97, 1971 N.C. LEXIS 991 (1971).

Seizure of Car Found in Plain View. —

A car reasonably believed to be the fruit, instrumentality or evidence of a crime can be seized whenever found in plain view. State v. Mitchell, 300 N.C. 305, 266 S.E.2d 605, 1980 N.C. LEXIS 1068 (1980), cert. denied, 449 U.S. 1085, 101 S. Ct. 873, 66 L. Ed. 2d 810, 1981 U.S. LEXIS 375 (1981).

§§ 15A-232 through 15A-240.

Reserved for future codification purposes.

Article 11. Search Warrants.

Official Commentary

The goal of the Commission in drafting the search warrant Article was to provide a set of search warrant application and execution procedures that would make the search warrant an effective and efficient investigative device while insuring that the Fourth Amendment “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures,” would continue to be respected in North Carolina.

Section 15A-242 replaces and expands upon the list of items subject to seizure under former G.S. 15-25(a). The old North Carolina statute provided that a warrant may be issued “to search for any contraband, evidence, or instrumentality of crime . . . .” (Emphasis added.) The new provision expands upon “contraband” by making subject to seizure items which are contraband or unlawfully possessed, stolen or embezzled. The word “instrumentality” is expanded to encompass any item which “has been used or is possessed for the purpose of being used to commit or conceal the commission of a crime.” The new proposed statute makes it clear that items may be seized if they constitute evidence either of an offense or of the identity of a person participating in an offense.

Section 15A-244, setting forth contents of a search warrant, is essentially a codification of present law and practice. Section 15A-245 provides that the official who issued the search warrant may consider information other than that contained in the affidavit, however, may not be considered unless it is either “recorded or contemporaneously summarized in the record or on the face of the warrant by the issuing official.” This last provision is necessary in order to comply with one of the central functions of the warrant process: the maintaining of a factual record of the basis for the search recorded before the search occurs. Section 15A-245 also introduces a new provision requiring the issuing official to make a copy of the warrant and application and file it with the clerk soon after issuance of the warrant.

Section 15A-246 and G.S. 15A-247, dealing with the form and content of the search warrant and identifying who may execute search warrants, codify existing law and practice.

Section 15A-248 provides that search warrants must be executed within 48 hours after issuance and that warrants not executed within this time must be returned to the issuing court. Formerly, North Carolina law provided no time limit for the execution of search warrants and did not require that unexecuted warrants be returned to the court. The Commission was informed that as a result of the absence of such provisions, there were a number of “stale” but facially valid warrants “floating around.” If a search warrant is not promptly executed, there is a serious question whether the probable cause that existed at the time of issuance is still present. If a search warrant is not executed within 48 hours as this section provides, it does not mean that the search may not take place; the only effect of the provision is that the invalid warrant must be returned. A new warrant may then be obtained if the grounds for it can be demonstrated.

Section 15A-249 and G.S. 15A-251 deal with an issue to which the most serious and close attention was given: whether search warrants may be executed without giving notice of the officer’s identity and purpose. Section 15A-249 simply states the general rule: An officer executing a search warrant must, before entering the premises, give notice of his identity and purpose. The only exception is contained in G.S. 15A-251(2). There was general agreement that an officer should have the authority to execute a warrant without notice and with the use of force whenever he had probable cause, either at the time of applying for or at the time of executing the warrant, to believe that notice would endanger the life or safety of any person. Under the terms of G.S. 15A-251(1) the officer can also use force to enter, if after announcing his identity and purpose, he reasonably believes admittance is being denied or delayed.

Section 15A-253 deals with the question of whether an officer executing a search warrant may seize items not named in the warrant. In Marron v. United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231 (1927), the Supreme Court indicated that only items named in the warrant could be seized. The weight of recent court decisions, however, appears to permit such seizures. The Commission provided that both contraband and noncontraband items not named in the warrant may be seized if inadvertently discovered in the course of a lawful search. The word “inadvertently” is incorporated to comply with the requirements of Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). This is the same rule as that which obtains when a search is incident to an arrest: “When an article subject to lawful seizure properly comes into an officer’s possession in the course of a lawful search it would be entirely unreasonable to say that he must return it because it was not one of the things it was his business to look for.” Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960). Of course, as the first sentence of G.S. 15A-253 states, the scope of any search under a warrant must be limited to that which is reasonably necessary to discover the items specified in the warrant. Under a search warrant describing a refrigerator as the sole item sought, it would not be reasonable to look in small boxes and drawers. Any items discovered while searching outside the reasonable scope of the warrant could not be lawfully seized under this provision.

Section 15A-255 and G.S. 15A-256 deal with the officer’s authority with respect to persons present in the place to be searched. Under G.S. 15A-255, a police officer may frisk any person present in the place designated in the warrant if he reasonably believes that his safety or that of others requires the frisk. And, of course, the officer may fully search any person who is designated in the warrant as an object of the search. But should persons not named in the warrant be subject to a full personal search if they happen to be present in a place that is the object of a search warrant? To forbid such searches would allow the search to be frustrated by quick transferring of small objects to persons present. To allow such searches, however, is arguably an undue infringement on the privacy of a person who happens to be in a particular place. The Commission sought to resolve these conflicting concerns by allowing searches of persons not named in the warrant only when two conditions are satisfied. First, the officers must have unsuccessfully searched the premises and persons designated in the warrant before searching those present who were not named in the warrant. And second, the authority to detain and search persons present who were not named in the warrant applies only to those present in private premises or vehicles. This second limitation is based upon the Commission’s conclusion that it would be unreasonable to subject all those present in a public department store or on a common carrier to detention and searching. This concern is not sufficient, however, to immunize those who are present in a nonpublic place, such as a friend’s residence where there is probable cause to believe that items subject to seizure are located. Section 15A-256 also denies the admissibility of evidence found in such a search of bystanders if the evidence is not of the “type” described in the warrant (but permitting its use of evidence the same type even though not specifically referred to in the warrant). Controlled substances (in Chapter 90, Article 5) are singled out as a class of things all of which are of the same type.

The search warrant Article also contains several miscellaneous provisions. Section 15A-252 provides that a copy of the warrant must be given to the person in control of the premises searched, or a copy left affixed to the premises. Section 15A-254 provides that the officers must leave a signed receipt of items taken with the person in control or leave one affixed to the premises. Section 15A-258 provides for the disposition of seized property. Section 15A-259 provides that the Article applies to all search warrants except those issued under the previously enacted statutes dealing with inspection warrants and warrants to inspect vehicles in certain riots or emergencies.

Editor’s Note.

The “Official Commentary” set out above appears as originally drafted by the Criminal Code Commission and does not reflect amendments or changes in the law since the enactment of Session Laws 1973, c. 1286.

§ 15A-241. Definition of search warrant.

A search warrant is a court order and process directing a law-enforcement officer to search designated premises, vehicles, or persons for the purpose of seizing designated items and accounting for any items so obtained to the court which issued the warrant.

History. 1868-9, c. 178, subch. 3, s. 38; Code, s. 1171; Rev., s. 3163; C.S., s. 4529; 1941, c. 53; 1949, c. 1179; 1955, c. 7; 1965, c. 377; 1969, c. 869, s. 8; 1973, c. 1286, s. 1.

Editor’s Note.

Session Laws 2020-3, s. 4.4, provides: “(a) Notwithstanding any other provision of law, any signature required for the issuance of a search warrant pursuant to Article 11 of Chapter 15A of the General Statutes, or on any judicial order issued following a court hearing conducted by remote audio or visual transmission in a civil or criminal case, may be signed by use of an electronic signature.

“(b) This section is effective when it becomes law [May 4, 2020] and shall expire on August 1, 2020.”

Session Laws 2020-3, s. 5, is a severability clause.

Legal Periodicals.

For article discussing limits to search and seizure, see 15 N.C.L. Rev. 101 and 229 (1937).

For note on requisites for a valid warrant to search for unlawfully possessed liquor, see 35 N.C.L. Rev. 424 (1957).

For article “An Inquiry into Mapp v. Ohio in North Carolina,” see 45 N.C.L. Rev. 119 (1966).

For survey of search and seizure cases, see 45 N.C.L. Rev. 931 (1967).

For article discussing the search and seizure provisions of Chapter 15A, see 52 N.C.L. Rev. 277 (1973).

For survey of 1981 law on criminal procedure, see 60 N.C.L. Rev. 1302 (1982).

For note, “Mighty Morphin’ Power Range R: The Intersection of the Fourth Amendment and Evolving Police Technology,” see 8 Elon L. Rev. 555 (2016).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under former similar provisions of Chapter 15 and earlier statutes.

No Difference Between State Law and Requirements of U.S. Const., Amend. IV. —

With regard to search warrants, there is no variance between the law of this State as declared by the decisions of the Supreme Court, and the requirements of U.S. Const., Amend. IV, as interpreted by the Supreme Court of the United States. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971); State v. Miller, 282 N.C. 633, 194 S.E.2d 353, 1973 N.C. LEXIS 1135 (1973).

Same Requirements for Federal and State Warrants. —

The same probable-cause standards under U.S. Const., Amends. IV and XIV apply to both federal and State warrants. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706, 1972 N.C. LEXIS 1321 (1972).

“Search”. —

The term “search,” as applied to searches and seizures, is an examination of a man’s house or other buildings or premises, or of his person, with a view to the discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense with which he is charged. State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994); State v. Wooten, 18 N.C. App. 269, 196 S.E.2d 603, 1973 N.C. App. LEXIS 1833 (1973).

The term “search” implies some exploratory investigation, or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive, or accomplished by force. State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

A search implies some sort of force, either actual or constructive, much or little. State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

A “search” implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a “search.” State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

A “search” implies an examination of one’s premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action and implies exploratory investigation or quest. State v. Reams, 277 N.C. 391, 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971), overruled, State v. Worsley, 336 N.C. 268, 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

It is not a “search” when a police officer, investigating a violation of the traffic laws, opens the door of the vehicle involved when necessary to see the occupants thereof. State v. Fry, 13 N.C. App. 39, 185 S.E.2d 256, 1971 N.C. App. LEXIS 1154 (1971), cert. denied, 280 N.C. 495, 186 S.E.2d 514, 1972 N.C. LEXIS 1272 (1972).

§ 15A-242. Items subject to seizure under a search warrant.

An item is subject to seizure pursuant to a search warrant if there is probable cause to believe that it:

  1. Is stolen or embezzled; or
  2. Is contraband or otherwise unlawfully possessed; or
  3. Has been used or is possessed for the purpose of being used to commit or conceal the commission of a crime; or
  4. Constitutes evidence of an offense or the identity of a person participating in an offense.

History. 1868-9, c. 178, subch. 3, s. 38; Code, s. 1171; Rev., s. 3163; C.S., s. 4529; 1941, c. 53; 1949, c. 1179; 1955, c. 7; 1965, c. 377; 1969, c. 869, s. 8; 1973, c. 1286, s. 1.

Legal Periodicals.

For survey of 1977 law on criminal procedure, see 56 N.C.L. Rev. 983 (1978).

CASE NOTES

Section Codifies Federal Constitutional Requirements. —

Provisions of Chapter 15A, particularly this section and G.S. 15A-253, are codifications of federal constitutional requirements. State v. Richards, 294 N.C. 474, 242 S.E.2d 844, 1978 N.C. LEXIS 1287 (1978).

Nontestimonial Identification Evidence. —

In addition to a nontestimonial identification order pursuant to G.S. 15A-272 and this section, a search warrant is a proper method to obtain nontestimonial identification evidence from a defendant. State v. McLean, 47 N.C. App. 672, 267 S.E.2d 695, 1980 N.C. App. LEXIS 3154 (1980).

Trial court did not err in denying defendant’s motion to suppress, as probable cause existed to seize videotapes from his bedroom closet that police discovered during a search of his residence after a confidential informant told police that drug offenses were occurring at defendant’s residence; defendant admitted that he was pictured on the videotape having sex with women and the videotapes tended to show that defendant was in control of the residence where the evidence of criminal offenses was found. State v. Adams, 159 N.C. App. 676, 583 S.E.2d 689, 2003 N.C. App. LEXIS 1513 (2003).

Photographs and Letters Held Admissible as Evidence of Identity. —

Where deputies searched a mobile home pursuant to a validly issued “occupant warrant” which specified heroin as the object of the search, and from the trailer’s bathroom, a substance later determined to be heroin was seized, and after the heroin was discovered, letters and photographs which had been seen earlier were also taken from the adjoining bedroom, the photographs and letters were admissible into evidence pursuant to G.S. 15A-253 since under subdivision (4) of this section they constituted evidence of the identity of a person participating in an offense. State v. Williams, 299 N.C. 529, 263 S.E.2d 571, 1980 N.C. LEXIS 938 (1980).

“Probable Cause” Defined. —

Probable cause means that there must exist a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender. State v. Lindsey, 58 N.C. App. 564, 293 S.E.2d 833, 1982 N.C. App. LEXIS 2803 (1982).

Where probable cause existed to support issuance of the search warrant for defendant’s hair, saliva, and blood pursuant to this section, the State did not violate the defendant’s rights, under N.C. Const., Art. I, § 20, by failing to obtain a nontestimonial identification order, pursuant to G.S. 15A-273, or to provide defendant with the right to counsel during the execution of the search warrant, under G.S. 15A-279(d). State v. Grooms, 353 N.C. 50, 540 S.E.2d 713, 2000 N.C. LEXIS 895 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54, 2001 U.S. LEXIS 5838 (2001).

Test for “staleness” of information on which a search warrant is based is whether the facts indicate that probable cause exists at the time the warrant is issued. State v. Lindsey, 58 N.C. App. 564, 293 S.E.2d 833, 1982 N.C. App. LEXIS 2803 (1982).

Before a search warrant may be issued, proof of probable cause must be established by facts so closely related to the time of issuance of the warrant so as to justify a finding of probable cause at that time. The general rule is that no more than a “reasonable” time may have elapsed. State v. Lindsey, 58 N.C. App. 564, 293 S.E.2d 833, 1982 N.C. App. LEXIS 2803 (1982).

Year-Old Information as to Possession of Marijuana. —

As marijuana is a substance which can be easily concealed and moved about and which is likely to be disposed of or used, year-old information, which was the only evidence of residential possession by defendants was too stale to establish probable cause to search defendant’s residence, even though the affidavit on which the search warrant was based also presented more recent information concerning defendant’s drug activities. State v. Lindsey, 58 N.C. App. 564, 293 S.E.2d 833, 1982 N.C. App. LEXIS 2803 (1982).

Recent Possession of Stolen Items. —

If the informant had stated to the affiant that recently he personally had seen stolen items in defendant’s possession at his residence, affidavit would clearly suffice. State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982).

Evidence Seized Was Properly Within Scope of Warrant. —

In defendant’s prosecution for two counts of first degree murder, a notebook and rap lyrics contained therein referring to the shootings were properly not suppressed as the search warrant for defendant’s vehicle expressly stated pursuant to G.S. 15A-242(4) that the police were looking for documents showing ownership, control, and access that constituted evidence of a crime and the identity of the persons participating in a crime; the notebook contained identifying information on the front, and the rap lyrics were evidence of the crime. State v. Bryant, 196 N.C. App. 154, 674 S.E.2d 753, 2009 N.C. App. LEXIS 364 (2009).

Probable Cause Found. —

Trial court did not err in denying defendant’s motion to suppress because the application to obtain defendant’s cell-site location information contained all the information necessary from which the trial court could have issued a warrant supported by probable cause, and in fact, the trial court in its order specifically found that probable cause existed to obtain this information. State v. Gore, 272 N.C. App. 98, 846 S.E.2d 295, 2020 N.C. App. LEXIS 470 (2020).

§ 15A-243. Who may issue a search warrant.

  1. A search warrant valid throughout the State may be issued by:
    1. A Justice of the Supreme Court.
    2. A judge of the Court of Appeals.
    3. A judge of the superior court.
  2. Other search warrants may be issued by:
    1. A judge of the district court as provided in G.S. 7A-291.
    2. A clerk as provided in G.S. 7A-180 and 7A-181.
    3. A magistrate as provided in G.S. 7A-273.

History. 1868-9, c. 178, subch. 3, s. 38; Code, s. 1171; Rev., s. 3163; C.S., s. 4529; 1941, c. 53; 1949, c. 1179; 1955, c. 7; 1965, c. 377; 1969, c. 869, s. 8; 1973, c. 1286, s. 1.

§ 15A-244. Contents of the application for a search warrant.

Each application for a search warrant must be made in writing upon oath or affirmation. All applications must contain:

  1. The name and title of the applicant; and
  2. A statement that there is probable cause to believe that items subject to seizure under G.S. 15A-242 may be found in or upon a designated or described place, vehicle, or person; and
  3. Allegations of fact supporting the statement. The statements must be supported by one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched; and
  4. A request that the court issue a search warrant directing a search for and the seizure of the items in question.

History. 1973, c. 1286, s. 1.

Legal Periodicals.

For comment on testing the credibility of search warrant affidavits, see 54 N.C.L. Rev. 477 (1976).

For survey of 1977 law on criminal procedure, see 56 N.C.L. Rev. 983 (1978).

For article, Hobgood, I-95A/K/A The Drug Trafficker’s Freeway, and Its Impact on State Constitutional Law, see 21 Campbell L. Rev. 237 (1999).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Some of the cases below were decided under former similar provisions of Chapter 15 and earlier statutes.

Language of Application for Warrant. —

Because applications are normally submitted by police officers who do not have legal training, the language is to be construed in a common-sensical, nontechnical and realistic way. State v. Windham, 57 N.C. App. 571, 291 S.E.2d 876, 1982 N.C. App. LEXIS 2682 (1982).

Applications for search warrants, written by police officers often in haste, need not be drawn with syntactical precision which would try even the more learned grammarians. State v. Willis, 58 N.C. App. 617, 294 S.E.2d 330, 1982 N.C. App. LEXIS 2814 (1982), aff'd, 307 N.C. 461, 298 S.E.2d 388, 1983 N.C. LEXIS 1097 (1983).

The warrant should describe with particularity the place to be searched since general warrants are repugnant to U.S. Const., Amend. IV, which has been applied to the states through incorporation in U.S. Const., Amend. XIV. State v. Atwell, 62 N.C. App. 643, 303 S.E.2d 402, 1983 N.C. App. LEXIS 3000 (1983).

Warrant May Be Based on Information Not Competent as Evidence. —

A valid search warrant may be issued on the basis of an affidavit setting forth information which may not be competent as evidence in a criminal trial. State v. Dailey, 33 N.C. App. 600, 235 S.E.2d 917, 1977 N.C. App. LEXIS 2260 (1977).

The good faith exception to the exclusionary rule only arises upon the exclusion of evidence based upon federal constitutional grounds. State v. Hyleman, 324 N.C. 506, 379 S.E.2d 830, 1989 N.C. LEXIS 302 (1989).

Warrant held valid despite absence of magistrate’s signature. See State v. Flynn, 33 N.C. App. 492, 235 S.E.2d 424, 1977 N.C. App. LEXIS 2241 (1977).

II.Probable Cause

A search warrant can only be issued upon a determination of probable cause. The person who makes that determination must be a neutral and detached magistrate instead of the officer engaged in the often competitive enterprise of ferreting out crime. State v. Atwell, 62 N.C. App. 643, 303 S.E.2d 402, 1983 N.C. App. LEXIS 3000 (1983).

The requirement that a search warrant be based on probable cause is grounded in both constitutional and statutory authority. State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350, 1997 N.C. LEXIS 197 (1997).

“Probable Cause” Defined. —

Probable cause for a search can be defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979).

Probable cause means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972); State v. Guffey, 31 N.C. App. 515, 229 S.E.2d 837, 1976 N.C. App. LEXIS 2030 (1976); State v. Riddick, 291 N.C. 399, 230 S.E.2d 506, 1976 N.C. LEXIS 999 (1976); State v. Gibson, 32 N.C. App. 584, 233 S.E.2d 84, 1977 N.C. App. LEXIS 2000 (1977); State v. Dailey, 33 N.C. App. 600, 235 S.E.2d 917, 1977 N.C. App. LEXIS 2260 (1977); State v. Bell, 36 N.C. App. 629, 244 S.E.2d 714, 1978 N.C. App. LEXIS 2566 (1978); State v. Jones, 299 N.C. 298, 261 S.E.2d 860, 1980 N.C. LEXIS 921 (1980); State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982); State v. Horne, 59 N.C. App. 576, 297 S.E.2d 788, 1982 N.C. App. LEXIS 3177 (1982), overruled, State v. Hurst, 320 N.C. 589, 359 S.E.2d 776, 1987 N.C. LEXIS 2356 (1987); State v. Crawford, 104 N.C. App. 591, 410 S.E.2d 499, 1991 N.C. App. LEXIS 1096 (1991); State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350, 1997 N.C. LEXIS 197 (1997).

Within the meaning of G.S. 15A-243 through 15A-245, probable cause may be defined as a reasonable ground to believe that the proposed search will reveal the presence, upon the premises to be searched, of the objects sought and that those objects will aid in the apprehension or conviction of the offender. State v. Eutsler, 41 N.C. App. 182, 254 S.E.2d 250, 1979 N.C. App. LEXIS 2398, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1517 (1979).

Probable cause, as used in U.S. Const., Amend. IV, subdivision (2) of this section, and G.S. 15A-245, means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender. State v. Harris, 43 N.C. App. 184, 258 S.E.2d 415, 1979 N.C. App. LEXIS 3050 (1979).

If the apparent facts set out in an affidavit for a search warrant are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a search warrant. State v. Eutsler, 41 N.C. App. 182, 254 S.E.2d 250, 1979 N.C. App. LEXIS 2398, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1517 (1979).

“Probable cause” and “reasonable ground to believe” are substantially equivalent terms. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979).

Question Is Existence of Reasonable Grounds for Affiant’s Belief. —

The determination of the existence of probable cause is not concerned with the question of whether the offense charged has been committed in fact, or whether the accused is guilty or innocent, but only with whether the affiant has reasonable grounds for his belief. State v. Eutsler, 41 N.C. App. 182, 254 S.E.2d 250, 1979 N.C. App. LEXIS 2398, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1517 (1979).

Probable Cause Determined in Light of Particular Circumstances. —

Probable cause is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved. State v. Allen, 282 N.C. 503, 194 S.E.2d 9, 1973 N.C. LEXIS 1103 (1973), disapproved, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, 1979 U.S. LEXIS 80 (1979).

Observations of fellow officers engaged in the same investigation are plainly a reliable basis for a warrant applied for by one of their number. State v. Horner, 310 N.C. 274, 311 S.E.2d 281, 1984 N.C. LEXIS 1569 (1984).

Probable cause does not mean actual and positive cause, nor does it import absolute certainty. State v. Eutsler, 41 N.C. App. 182, 254 S.E.2d 250, 1979 N.C. App. LEXIS 2398, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1517 (1979); State v. Arrington, 311 N.C. 633, 319 S.E.2d 254, 1984 N.C. LEXIS 1750 (1984).

Probable cause does not deal in certainties, but deals rather in probabilities which are factual and practical considerations of everyday life upon which reasonable and prudent men may act. State v. Dailey, 33 N.C. App. 600, 235 S.E.2d 917, 1977 N.C. App. LEXIS 2260 (1977).

Probable cause is concerned with probabilities, the practical considerations of everyday life upon which reasonable and prudent men act. State v. Horner, 310 N.C. 274, 311 S.E.2d 281, 1984 N.C. LEXIS 1569 (1984).

Sworn Statement Required for Probable Cause Warrant. —

A magistrate issuing a warrant can base a finding of probable cause only on statements of fact confirmed by oath or affirmation of the party making the statement, or on information which the magistrate records or contemporaneously summarizes in the record. The necessity of a sworn statement is consistent with existing case law. State v. Heath, 73 N.C. App. 391, 326 S.E.2d 640, 1985 N.C. App. LEXIS 3264 (1985).

Probable cause may be based upon hearsay evidence. The officer making the affidavit may do so in reliance upon information reported to him by other officers in the performance of their duties. State v. Horner, 310 N.C. 274, 311 S.E.2d 281, 1984 N.C. LEXIS 1569 (1984).

In applying the “totality of the circumstances” test, great deference should be paid a magistrate’s determination of probable cause and after-the-fact scrutiny should not take the form of a de novo review. State v. Graham, 90 N.C. App. 564, 369 S.E.2d 615, 1988 N.C. App. LEXIS 619 (1988).

When Evidence of Previous Criminal Activity Supports Warrant. —

Generally, two factors determine whether evidence of previous criminal activity is sufficient to later support search warrant: (1) the amount of the criminal activity, and (2) the time period over which the activity occurred. Absent additional facts tending to show otherwise, a one-shot type of crime, such as a single instance of possession or sale of some contraband, will support a finding of probable cause only for a few days at best. However, where affidavit properly recites facts indicating activity of protracted and continuous nature, a course of conduct, the passage of time becomes less significant. State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355, 1990 N.C. App. LEXIS 1080 (1990).

Probable cause existed to support the issuance of a search warrant for defendant’s residence because the warrant was issued based on information contained in a law enforcement officer’s affidavit relating to the sale of illegal drugs at another location earlier that day by other residents of the home so as to provide a nexus between the residence and suspected criminal activity. The information set out in the affidavit allowed the magistrate to infer that evidence related to the criminal activity was likely to be found at the residence. State v. Bailey, 374 N.C. 332, 841 S.E.2d 277, 2020 N.C. LEXIS 366 (2020).

Determination of Whether Evidence Is Stale. —

When evidence of previous criminal activity is advanced to support a finding of probable cause, further examination must be made to determine if the evidence of prior activity is stale. State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355, 1990 N.C. App. LEXIS 1080 (1990).

Continuity of offense may be the most important factor in determining whether probable cause is valid or stale. State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355, 1990 N.C. App. LEXIS 1080 (1990).

Insufficient Probable Cause. —

Trial court erred by denying defendant’s motion to suppress because the search warrant affidavit did not provide sufficient facts and circumstances that would lead an objective magistrate to reasonably conclude that drugs or other illegal items could potentially be found at the address, since the alleged drug dealer they had under surveillance could have been present at the residence for any number of reasons. State v. Eddings, 866 S.E.2d 499, 2021- NCCOA-590, 2021 N.C. App. LEXIS 596 (Ct. App. 2021).

There was sufficient probable cause where search warrant was issued in reliance upon recitation in affidavit of a controlled purchase of cocaine six days prior to the date of application. State v. Ledbetter, 120 N.C. App. 117, 461 S.E.2d 341, 1995 N.C. App. LEXIS 692 (1995).

There was probable cause to issue warrants where affidavits were submitted by police officers and volunteers who played bingo and observed payoffs for bingo and slot machines. State v. Crabtree, 126 N.C. App. 729, 487 S.E.2d 575, 1997 N.C. App. LEXIS 628 (1997).

Evidence as a whole provided the magistrate with a substantial basis for concluding that probable cause existed at the time the search warrant was issued; although the alleged victims did not provide specific dates, the allegations of inappropriate sexual touching by defendant allowed a reasonably inference that defendant’s criminal activity was protracted and continuing in nature. State v. Pickard, 178 N.C. App. 330, 631 S.E.2d 203, 2006 N.C. App. LEXIS 1413 (2006).

Magistrate had a substantial basis to find that probable cause existed to issue the challenged search warrant, where the affidavit stated that, based on the amount of marijuana found in a car the detective stopped, the occupants appeared to be drug dealers, drug dealers typically keep evidence of drug dealing in their homes, the mother of one of the car’s occupants stated that her son lived at defendant’s address, and her description of the premises matched the actual premises. State v. Allman, 369 N.C. 292, 794 S.E.2d 301, 2016 N.C. LEXIS 1114 (2016).

As to sufficiency of information concerning location of objects, see State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355, 1990 N.C. App. LEXIS 1080 (1990).

Inference Upheld. —

Where suspect, previously convicted of selling drugs, had within a ten-day period rented three different motel rooms, each time for several days, in a city in which he had a local address, and at two of those locations he had sold cocaine, based on these facts, it was reasonable to infer that when suspect occupied third room, he still possessed the cocaine. State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355, 1990 N.C. App. LEXIS 1080 (1990).

Sufficiency of Probable Cause. —

For resolving questions arising under N.C. Const., Art. I, § 20 with regard to the sufficiency of probable cause to support the issuance of a search warrant, the Supreme Court of North Carolina adopts the totality of circumstances test of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) and Massachusetts v. Upton, 466 U.S. 727, 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984) and rejects the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). State v. Arrington, 311 N.C. 633, 319 S.E.2d 254, 1984 N.C. LEXIS 1750 (1984); State v. White, 87 N.C. App. 311, 361 S.E.2d 301, 1987 N.C. App. LEXIS 3207 (1987), aff'd in part and rev'd in part, 322 N.C. 770, 370 S.E.2d 390, 1988 N.C. LEXIS 487 (1988).

Where magistrate had before him evidence (1) that suspect had a pound of marijuana in her home a week earlier, (2) that suspect had sold marijuana the day warrant was issued, and (3) that suspect had a prior history of involvement with drugs (and was still on probation for violation of the Controlled Substances Act), there was a substantial basis to support a finding of probable cause for issuance of a search warrant. State v. Beam, 325 N.C. 217, 381 S.E.2d 327, 1989 N.C. LEXIS 371 (1989).

Information in an affidavit, including that the person who acquired cocaine went to the house identified in the search warrant, the same person then delivered cocaine to a detective, a phone registered to defendant repeatedly called an accomplice after the accomplice was arrested, and defendant resided at the house that was the subject of the search warrant, constituted a substantial basis from which a magistrate could have found probable cause to issue a search warrant. State v. Torres-Gonzalez, 227 N.C. App. 188, 741 S.E.2d 502, 2013 N.C. App. LEXIS 472 (2013), cert. dismissed, 370 N.C. 283, 805 S.E.2d 689, 2017 N.C. LEXIS 877 (2017).

Motion to suppress was properly denied in a drug case because there was no federal constitutional violation where an affidavit established a substantial nexus between marijuana remnants recovered from a vehicle and defendant’s residence and was also sufficient to support a finding of probable cause necessary to search defendant’s apartment. In addition to information given to the officer by a citizen, the affidavit stated that surveillance of the apartment was conducted, a driver was observed making six-minute visit, and marijuana and substantial cash were discovered during a subsequent investigatory stop. State v. McKinney, 368 N.C. 161, 775 S.E.2d 821, 2015 N.C. LEXIS 686 (2015).

Facts were sufficient under the “totality of the circumstances” test to support a finding of probable cause when officers received information from an informant who admitted past use of cocaine and who had previously given information that led to the arrest of at least six people, since the information provided a substantial basis for the probability that cocaine was present in the described residence and had been sold there within the preceding 48 hours. State v. Graham, 90 N.C. App. 564, 369 S.E.2d 615, 1988 N.C. App. LEXIS 619 (1988).

A trained law-enforcement officer need not swear to his ability to recognize an illegal substance in order for his observation to be deemed reliable by the issuing magistrate. State v. Leonard, 87 N.C. App. 448, 361 S.E.2d 397, 1987 N.C. App. LEXIS 3210 (1987).

III.Affidavits and Informants

Sufficiency of Affidavit Generally. —

The affidavit is sufficient if it supplies reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971); State v. Campbell, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972); State v. English, 27 N.C. App. 545, 219 S.E.2d 549, 1975 N.C. App. LEXIS 1897 (1975); State v. Riddick, 291 N.C. 399, 230 S.E.2d 506, 1976 N.C. LEXIS 999 (1976); State v. Armstrong, 33 N.C. App. 52, 234 S.E.2d 197, 1977 N.C. App. LEXIS 2096 (1977); State v. Windham, 57 N.C. App. 571, 291 S.E.2d 876, 1982 N.C. App. LEXIS 2682 (1982); State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982); State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982); State v. Warren, 59 N.C. App. 264, 296 S.E.2d 671, 1982 N.C. App. LEXIS 3117 (1982), aff'd in part, 309 N.C. 224, 306 S.E.2d 446, 1983 N.C. LEXIS 1387 (1983); State v. Arrington, 311 N.C. 633, 319 S.E.2d 254, 1984 N.C. LEXIS 1750 (1984).

The facts set forth in an affidavit for a search warrant must be such that a reasonably discreet and prudent person would rely upon them before they will be held to provide probable cause justifying the issuance of a search warrant. State v. Arrington, 311 N.C. 633, 319 S.E.2d 254, 1984 N.C. LEXIS 1750 (1984).

Although an affidavit did not include any indication, other than the amount of blood, that would suggest a search of defendant’s computer would lead to information regarding a potential homicide, and the affidavit only included a wholly conclusory statement that the affiant had probable cause to search the computers in defendant’s house, the state met its burden; the evidence and testimony admitted in defendant’s trial pursuant to the warrant did not prejudice defendant in light of other properly admitted evidence. State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594, 2006 N.C. App. LEXIS 1980 (2006), aff'd, 361 N.C. 587, 652 S.E.2d 216, 2007 N.C. LEXIS 1101 (2007).

Affidavit Must Indicate Underlying Circumstances. —

To supply reasonable cause to believe the objects sought are on the described premises, the affidavit supporting a search warrant must provide the magistrate with underlying circumstances from which to judge the validity of the informant’s conclusion that the articles sought are at the place to be searched. State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982).

Affidavit need not contain all the evidence properly presented to the issuing official. State v. Spillars, 280 N.C. 341, 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972); State v. Bandy, 15 N.C. App. 175, 189 S.E.2d 771, 1972 N.C. App. LEXIS 1853 (1972); State v. Hayes, 291 N.C. 293, 230 S.E.2d 146, 1976 N.C. LEXIS 974 (1976).

But It Should Contain Material and Essential Facts. —

The better practice would be for the issuing official to require that the affidavit contain the material and essential facts (but not all the evidentiary details) necessary to support the finding of probable cause before issuing a search warrant. State v. Flowers, 12 N.C. App. 487, 183 S.E.2d 820, 1971 N.C. App. LEXIS 1388, cert. denied, 279 N.C. 728, 184 S.E.2d 885, 1971 N.C. LEXIS 927 (1971).

Section Does Not Require Separate Writing Labelled “Affidavit.” —

Although a separate paper identified as an affidavit was not submitted with officers’ sworn application, statutory requirements were met and search warrant was properly issued; this section does not require that an officer submit a separate sworn writing labelled “Affidavit” even when its contents would be a verbatim duplication of the sworn statement in the application. State v. Marshall, 94 N.C. App. 20, 380 S.E.2d 360, 1989 N.C. App. LEXIS 445 (1989).

Purely Conclusory Affidavit Insufficient. —

Probable cause cannot be shown by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the “underlying circumstances” upon which that belief is based. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972); State v. Guffey, 31 N.C. App. 515, 229 S.E.2d 837, 1976 N.C. App. LEXIS 2030 (1976).

Probable cause cannot be shown by affidavits which are purely conclusory and do not set forth any of the underlying circumstances upon which that conclusion is based. State v. English, 27 N.C. App. 545, 219 S.E.2d 549, 1975 N.C. App. LEXIS 1897 (1975).

A search warrant cannot be issued upon affidavits which are purely conclusory and which do not state underlying circumstances upon which the affiant’s belief of probable cause is founded; there must be facts or circumstances in the affidavit which implicate the premises to be searched. State v. Rook, 304 N.C. 201, 283 S.E.2d 732, 1981 N.C. LEXIS 1340 (1981), cert. denied, 455 U.S. 1038, 102 S. Ct. 1741, 72 L. Ed. 2d 155 (1982).

Probable cause cannot be shown by affidavits which are purely conclusory. An affidavit which merely states the affiant’s belief that probable cause exists without detailing any of the underlying circumstances is insufficient. A recital of some of the underlying circumstances in the affidavit is necessary if the magistrate is to perform his proper function. State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

The application for the warrant must allege facts by which the magistrate can determine whether there is probable cause to support the warrant. Mere conclusions of the officer applying for the warrant or of the informant are not sufficient. State v. Willis, 58 N.C. App. 617, 294 S.E.2d 330, 1982 N.C. App. LEXIS 2814 (1982), aff'd, 307 N.C. 461, 298 S.E.2d 388, 1983 N.C. LEXIS 1097 (1983).

Affidavit in support of application for a search warrant did not comply with the standard in G.S. 15A-244(2) where it made mere conclusions that probable cause existed and was unsupported by particular facts. State v. McHone, 158 N.C. App. 117, 580 S.E.2d 80, 2003 N.C. App. LEXIS 940 (2003).

There is a presumption of validity with respect to the affidavit supporting a search warrant. State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350, 1997 N.C. LEXIS 197 (1997).

The application for a search warrant submitted to the judge by a detective in the murder investigation, which eventually implicated the defendant, met the requirements of this section; although the application itself did not state on its face that it was sworn, the trial court found that the detective was sworn and signed the attached sworn affidavit in the judge’s presence. State v. McCord, 140 N.C. App. 634, 538 S.E.2d 633, 2000 N.C. App. LEXIS 1266 (2000), writ denied, 353 N.C. 392, 547 S.E.2d 33, 2001 N.C. LEXIS 46 (2001).

Issuing Officer May Not Rely on Mere Conclusions. —

The issuing officer must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant’s mere conclusion. State v. Guffey, 31 N.C. App. 515, 229 S.E.2d 837, 1976 N.C. App. LEXIS 2030 (1976); State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

Affidavits Must Establish a Nexus Between the Objects Sought and the Place to be Searched. —

Usually this connection is made by showing that criminal activity actually occurred at the location to be searched or that fruits of a crime that occurred elsewhere are observed at certain place. State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355, 1990 N.C. App. LEXIS 1080 (1990).

Affidavit in support of a warrant to search a North Carolina home satisfied G.S. 15A-244(3) because the affidavit indicated that, in addition to a first-hand sighting, the informant also knew the name and address of the person with whom defendant was staying, and the police also independently verified that telephone calls from the address were going to someone known to defendant (his girlfriend); thus, under either the Aguilar-Spinelli or the totality of the circumstances test, the affidavit demonstrated both a basis of knowledge and police corroboration more than sufficient to establish probable cause that defendant was at the address. Commonwealth v. Jackmon, 63 Mass. App. Ct. 47, 822 N.E.2d 754, 2005 Mass. App. LEXIS 155 (Mass. App. Ct. 2005).

In a case in which defendant pled guilty to violating, inter alia, G.S. 90-95(d)(3) and (a)(1), 90-113.22, and 90-108(a)(7), he argued unsuccessfully that there was not a nexus between the presence of drugs in his storage unit and the existence of drugs at his house to provide the requisite probable cause for the search warrant of his residence. There was sufficient evidence offered in support of the search warrant for defendant’s residence to provide probable cause to believe that contraband would be found in that location, and, given the circumstances of the case, there was no reason to doubt the informant’s reliability and basis of knowledge. State v. Washburn, 201 N.C. App. 93, 685 S.E.2d 555, 2009 N.C. App. LEXIS 1860 (2009).

Application for a search warrant failed to comply with this section where the affiant failed to state what information he received from informants during and after purchase of cocaine; and where the affidavit failed to disclose any facts that would lead affiant or a magistrate to reasonably believe that identified currency and contraband were at defendant’s residence. State v. Hyleman, 324 N.C. 506, 379 S.E.2d 830, 1989 N.C. LEXIS 302 (1989).

Requirements Where Affidavit Based on Hearsay. —

The affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant; but the affidavit in such case must contain some of the underlying circumstances from which the affiant’s informer concluded that the articles sought were where the informer claimed they were, and some of the underlying circumstances from which the affiant concluded that the informer was credible and his information reliable. State v. Dailey, 33 N.C. App. 600, 235 S.E.2d 917, 1977 N.C. App. LEXIS 2260 (1977).

If the affidavit is based on hearsay information, then it must contain the circumstances underlying the informer’s reliability and the basis for the informer’s belief that a search will recover the objects sought by the police. State v. Crawford, 104 N.C. App. 591, 410 S.E.2d 499, 1991 N.C. App. LEXIS 1096 (1991).

Insufficient Affidavit Invalidates Warrant. —

The failure of the affidavit to establish reasonable grounds to believe that the crime was occurring on the premises to be searched invalidates the warrant issued thereon. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972).

Establishment of Informant’s Reliability. —

An officer’s statement in an affidavit to obtain a search warrant that a reliable and confidential informant who furnished information to him has been used by (another named officer) in the past and that information given by the source has proven correct in all cases met the minimum standard for setting forth the circumstances from which the affiant concluded that the informant was reliable. State v. Williams, 49 N.C. App. 184, 270 S.E.2d 604, 1980 N.C. App. LEXIS 3333 (1980), cert. denied, 301 N.C. 726, 276 S.E.2d 287, 1981 N.C. LEXIS 1144 (1981).

Where the affidavit contained information to establish that the informant had been to defendants’ residence within 48 hours before the application for the warrant was presented to the magistrate and had personally observed defendants’ brother in possession of cocaine, and where the affidavit revealed that the informant was familiar with the appearance of cocaine prepared for sale, and where the informant was known to the affiants for a period of six months to one and one-half years and had provided reliable information which had resulted in numerous drug arrests, the affidavit contained sufficient details to support informant’s credibility and a finding of probable cause. State v. King, 92 N.C. App. 75, 373 S.E.2d 566, 1988 N.C. App. LEXIS 982 (1988).

Police officer’s affidavit, based on information from an informant the officer had known for years, was sufficient for the issuance of a search warrant under G.S. 15A-244 because under the totality of the circumstances the affidavit provided a magistrate with probable cause for the issuance of a search warrant for defendant’s home under U.S. Const., Amend. IV, and N.C. Const., Art. I, § 20. State v. Edwards, 185 N.C. App. 701, 649 S.E.2d 646, 2007 N.C. App. LEXIS 1947 (2007).

Given the specific information supplied by anonymous callers including information about defendant’s criminal history, much of which was verified by a North Carolina Bureau of Investigation Agent, in the totality of the circumstances a second anonymous tip had sufficient indicia of reliability. State v. Oates, 224 N.C. App. 634, 736 S.E.2d 228, 2012 N.C. App. LEXIS 1473 (2012).

Detective’s affidavit contained sufficient information to support the magistrate’s determination that probable cause existed to issue the search warrant, including a statement that investigators had known the confidential informant (CI) for two weeks and he had provided them with reliable information and law enforcement officer investigated prior information provided by the CI. State v. Brody, 251 N.C. App. 812, 796 S.E.2d 384, 2017 N.C. App. LEXIS 41 (2017).

Warrant for the search of a residence was supported by probable cause where the officer’s knowledge of a controlled purchase of crack cocaine and her credibility determination of the confidential informant based on previously working with that informant rendered the affidavit sufficient under the totality of the circumstances test. State v. Caddell, 267 N.C. App. 426, 833 S.E.2d 400, 2019 N.C. App. LEXIS 763 (2019).

Police Officer May Rely on Information Reported by Other Officers. —

The police officer making the affidavit may do so in reliance upon information reported to him by other officers in the performance of their duties. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971); State v. Dailey, 33 N.C. App. 600, 235 S.E.2d 917, 1977 N.C. App. LEXIS 2260 (1977).

The police officer may state in his affidavit reports made to him by competent experts, such as the personnel of the FBI laboratories, concerning their examinations of materials forwarded by him to them for such examination and report. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971).

What Tip Must Show. —

It is essential that the informant’s tip reveal that the objects sought are on the premises to be searched. State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982).

When the application for a search warrant is based on an informant’s tip, however, it must meet the two-prong test developed by the Supreme Court in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). First, the affidavit must set forth sufficient underlying circumstances to permit a neutral and detached magistrate to understand how the informant reached his conclusion. Second, the affidavit must establish the reliability of the informant. This can be done by showing prior use and reliability of the informant, a declaration against his penal interest, clear and precise details in the tip indicating personal observation and knowlege of the location of the evidence, or membership of the informant in a reliable group like the clergy. State v. Atwell, 62 N.C. App. 643, 303 S.E.2d 402, 1983 N.C. App. LEXIS 3000 (1983), but see State v. Arrington, 311 N.C. 633, 319 S.E.2d 254, 1984 N.C. LEXIS 1750 (1984).

Absent a statement claiming personal observation or otherwise detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor or an accusation based merely on an individual’s general reputation. State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982).

If the informant has recently personally seen stolen items in defendant’s possession at his residence, and states this to the affiant, the affidavit would clearly suffice. State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982).

Bad Faith Required to Contest Validity of Warrant. —

A claim is not established merely by evidence that contradicts assertions contained in the affidavit, or even that shows the affidavit contains false statements; rather, the evidence must establish facts from which the finder of fact might conclude that the affiant alleged the facts in bad faith. State v. Fernandez, 346 N.C. 1, 484 S.E.2d 350, 1997 N.C. LEXIS 197 (1997).

Affidavit Insufficient. —

Evidence seized pursuant to a search warrant was properly suppressed because, inter alia, the affidavit supporting the search warrant merely stated that the confidential informant had visited the described location and made controlled purchases of cocaine at the location, without particularly stating which, if any, of the two dwellings the informant entered to make the purchases. In addition, the special agent had only been working in law-enforcement for two years at the time the agent applied for the search warrant, and failed to include facts regarding whether the agent observed the transactions between the confidential informant and the seller, thereby failing to establish the identity of the seller as defendant. State v. Taylor, 191 N.C. App. 587, 664 S.E.2d 421, 2008 N.C. App. LEXIS 1504 (2008).

In a possession of a firearm by a felon case, the denial of defendant’s motion to suppress amounted to plain error as the gun was found only once the search warrant had been obtained and was being executed, but the affidavit was insufficient to establish probable cause for the search warrant because the sergeant’s affidavit simply stated that he saw a smoke pipe used for methamphetamine in a bedroom in defendant’s house, but it did not mention the sergeant’s training and experience, or information explaining the basis for his belief that the pipe was being used to smoke methamphetamine; and the affidavit did not explain how the sergeant was qualified to distinguish between a pipe being used for lawful — as opposed to unlawful — purposes. State v. Lenoir, 259 N.C. App. 857, 816 S.E.2d 880, 2018 N.C. App. LEXIS 519 (2018).

Trial court erred in denying defendant’s motion to suppress where the supporting affidavit provided no indication as to when the alleged criminal activities occurred, and since the affidavit was invalid, any evidence obtained as a result of the search warrant was erroneously admitted at trial; the supporting affidavit to the search warrant application was completely devoid of any indication as to when the events used to establish probable cause occurred. State v. Logan, 278 N.C. App. 319, 861 S.E.2d 908, 2021- NCCOA-311, 2021 N.C. App. LEXIS 327 (2021).

Affidavit in support of a search warrant application did not provide sufficient facts from which the magistrate could conclude there was probable cause because it did not specify when the purported events occurred nor did it indicate sufficient facts from which the magistrate could reasonably infer the timing of such events; therefore, the search warrant obtained as a result of the affidavit was invalid and resulted in an unreasonable search and seizure. State v. Logan, 278 N.C. App. 319, 861 S.E.2d 908, 2021- NCCOA-311, 2021 N.C. App. LEXIS 327 (2021).

Affidavit in support of a search warrant application did not provide sufficient facts from which the magistrate could conclude there was probable cause because it did not specify when the purported events occurred nor did it indicate sufficient facts from which the magistrate could reasonably infer the timing of such events; therefore, the search warrant obtained as a result of the affidavit was invalid and resulted in an unreasonable search and seizure. State v. Logan, 278 N.C. App. 319, 861 S.E.2d 908, 2021- NCCOA-311, 2021 N.C. App. LEXIS 327 (2021).

Trial court erred in denying defendant’s motion to suppress where the supporting affidavit provided no indication as to when the alleged criminal activities occurred, and since the affidavit was invalid, any evidence obtained as a result of the search warrant was erroneously admitted at trial; the supporting affidavit to the search warrant application was completely devoid of any indication as to when the events used to establish probable cause occurred. State v. Logan, 278 N.C. App. 319, 861 S.E.2d 908, 2021- NCCOA-311, 2021 N.C. App. LEXIS 327 (2021).

Affidavit Insufficient to Find Probable Cause. —

Affidavit was not sufficient to support a finding of probable cause, because the affidavit contained false information, including a statement that a new information had proven reliable in the past, when the officer’s testimony clearly showed that he had not had any sort of prior relationship with the informant and knew little or nothing about him. State v. Jackson, 220 N.C. App. 1, 727 S.E.2d 322, 2012 N.C. App. LEXIS 510 (2012).

Affidavit Sufficient to Find Probable Cause. —

Search warrant application and affidavit provided sufficient information for the magistrate to make an independent and neutral determination that probable cause existed for the issuance of the warrant which led to the search of defendant’s computer and discovery of child pornography. State v. Gerard, 249 N.C. App. 500, 790 S.E.2d 592, 2016 N.C. App. LEXIS 975 (2016).

§ 15A-245. Basis for issuance of a search warrant; duty of the issuing official.

  1. Before acting on the application, the issuing official may examine on oath the applicant or any other person who may possess pertinent information, but information other than that contained in the affidavit may not be considered by the issuing official in determining whether probable cause exists for the issuance of the warrant unless the information is either recorded or contemporaneously summarized in the record or on the face of the warrant by the issuing official. The information must be shown by one or both of the following:
    1. Affidavit.
    2. Oral testimony under oath or affirmation before the issuing official.
    3. Repealed by Session Laws 2021-47, s. 10(c), effective June 18, 2021, and applicable to proceedings occurring on or after that date.
  2. If the issuing official finds that the application meets the requirements of this Article and finds there is probable cause to believe that the search will discover items specified in the application which are subject to seizure under G.S. 15A-242, he must issue a search warrant in accordance with the requirements of this Article. The issuing official must retain a copy of the warrant and warrant application and must promptly file them with the clerk. If he does not so find, the official must deny the application.

History. 1973, c. 1286, s. 1; 2005-334, s. 1; 2021-47, s. 10(c).

Editor’s Note.

Session Laws 2021-47, s. 10(m), made the amendments to subsection (a) of this section by Session Laws 2021-47, s. 10(c), effective June 18, 2021, and applicable to proceedings occurring on or after that date.

Effect of Amendments.

Session Laws 2005-334, s. 1, effective October 1, 2005, in subsection (a), added the last sentence of the introductory paragraph and subdivisions (1) through (3).

Session Laws 2021-47, s. 10(c), in subsection (a), deleted subdivision (a)(3) which read: “Oral testimony under oath or affirmation presented by a sworn law enforcement officer to the issuing official by means of an audio and video transmission in which both parties can see and hear each other. Prior to the use of audio and video transmission pursuant to this subdivision, the procedures and type of equipment for audio and video transmission shall be submitted to the Administrative Office of the Courts by the senior regular resident superior court judge and the chief district court judge for a judicial district or set of districts and approved by the Administrative Office of the Courts.” and made stylistic changes throughout. For effective date and applicability, see editor’s note.

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Some of the cases below were decided under former similar provisions of Chapter 15 and earlier statutes.

Former G.S.15-26 Compared. —

It was not necessary under former G.S. 15-26 that the affidavit contain within itself all the evidence properly presented to the magistrate. State v. Woods, 26 N.C. App. 584, 216 S.E.2d 492, 1975 N.C. App. LEXIS 2118 (1975).

Sworn Statement Required for Probable Cause Warrant. —

A magistrate issuing a warrant can base a finding of probable cause only on statements of fact confirmed by oath or affirmation of the party making the statement, or on information which the magistrate records or contemporaneously summarizes in the record. The necessity of a sworn statement is consistent with existing case law. State v. Heath, 73 N.C. App. 391, 326 S.E.2d 640, 1985 N.C. App. LEXIS 3264 (1985).

Magistrate is required to determine presence or absence of probable cause upon the information before him. State v. Windham, 57 N.C. App. 571, 291 S.E.2d 876, 1982 N.C. App. LEXIS 2682 (1982).

Independent Determination by Issuing Official Required. —

A magistrate, by simply signing without reading the paper which a police officer places before him, utterly fails to perform the important judicial function which it is his duty to perform as a neutral and detached magistrate of making his own independent determination from the affidavit submitted to him whether probable cause exists for issuance of the search warrant. State v. Miller, 16 N.C. App. 1, 190 S.E.2d 888, 1972 N.C. App. LEXIS 1633 (1972), modified, 282 N.C. 633, 194 S.E.2d 353, 1973 N.C. LEXIS 1135 (1973).

Sufficiency of Affidavit Not Determined by Affiant. —

Whether the affidavit is sufficient to show probable cause must be determined by the issuing magistrate rather than the affiant. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972); State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

Facts Outside Written Affidavit May Be Considered. —

The judicial officer’s attention is not limited to those facts recited in a written affidavit taken under oath. State v. Howell, 18 N.C. App. 610, 197 S.E.2d 616, 1973 N.C. App. LEXIS 1955 (1973).

When Testimony of Witnesses Necessary. —

If the affidavit indicates the basis for the finding of probable cause, but is not in itself sufficient to establish probable cause, testimony of witnesses will be necessary to establish whether there was in fact sufficient evidence before the magistrate to justify his finding of probable cause to issue the search warrant. State v. Logan, 18 N.C. App. 557, 197 S.E.2d 238, 1973 N.C. App. LEXIS 1936 (1973), overruled, State v. Harris, 25 N.C. App. 404, 213 S.E.2d 414, 1975 N.C. App. LEXIS 2273 (1975).

Evidence Properly Heard Under Subsection (a). —

Albeit subsection (a) of this section places restrictions upon what information can be used by the magistrate in finding probable cause, the trial judge did not go beyond the permissible scope of inquiry when he heard evidence on the issue of a typographical error in the year date. State v. Beddard, 35 N.C. App. 212, 241 S.E.2d 83, 1978 N.C. App. LEXIS 2926 (1978).

Magistrate’s determination of probable cause should be paid great deference by reviewing court. State v. Spillars, 280 N.C. 341, 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972); State v. Spencer, 281 N.C. 121, 187 S.E.2d 779, 1972 N.C. LEXIS 1013 (1972).

Reviewing courts are to pay deference to judicial determinations of probable cause. State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

And Will Be Sustained Where There Was a Substantial Basis for It. —

When a search is based upon a magistrate’s rather than a police officer’s, determination of probable cause, the reviewing court will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant, and will sustain the judicial determination so long as there was substantial basis for the magistrate to conclude that the articles searched for were probably present. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971).

The scope of the court’s review of the magistrate’s determination of probable cause is not confined to the affidavit alone. State v. Hicks, 60 N.C. App. 116, 298 S.E.2d 180, 1982 N.C. App. LEXIS 3267 (1982).

It is always appropriate for the trial court to conduct a hearing on a motion to suppress. In such hearing the burden of proof is on the State. The State is not relegated to producing or introducing the search warrant alone, but may offer other evidence to show probable cause existed at the time of the issuing of the search warrant, if in truth it has any to offer. State v. Hicks, 60 N.C. App. 116, 298 S.E.2d 180, 1982 N.C. App. LEXIS 3267 (1982).

Ordinarily, a search warrant will be presumed regular on appeal if irregularity does not appear on the face of the record, and when the search warrant does not appear of record, it is assumed in all respects regular on appeal. Furthermore, the wording of U.S. Const., Amend. IV would indicate that a valid search warrant is prima facie evidence of the reasonableness of the search. State v. Lombardo, 52 N.C. App. 316, 278 S.E.2d 318, 1981 N.C. App. LEXIS 2426 (1981), modified, 306 N.C. 594, 295 S.E.2d 399, 1982 N.C. LEXIS 1545 (1982).

Corporations have never possessed the kind of protection under U.S. Const., Amend. IV accorded to persons and their homes. Corporations’ special status as creatures of the state exposes them to exhaustive state scrutiny in exchange for the privilege of state recognition. In re Superior Court Order Dated April 8, 1983, 70 N.C. App. 63, 318 S.E.2d 843, 1984 N.C. App. LEXIS 3604 (1984), rev'd, 315 N.C. 378, 338 S.E.2d 307, 1986 N.C. LEXIS 1868 (1986).

Failure to File with Clerk Did Not Require Suppression. —

Although application and search warrant were not filed with the clerk as required by statute, the violation did not require that the seized evidence be suppressed; the failure to timely file these documents with the clerk after the warrant was issued did not rise to the level of a constitutional violation that would require suppression under G.S. 15A-974(2). State v. Marshall, 94 N.C. App. 20, 380 S.E.2d 360, 1989 N.C. App. LEXIS 445 (1989).

Anticipatory Warrant. —

An anticipatory warrant must set out, on its face, conditions that are explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents. State v. Smith, 124 N.C. App. 565, 478 S.E.2d 237, 1996 N.C. App. LEXIS 1205 (1996).

Triggering Event of Anticipatory Warrant. —

An anticipatory warrant must minimize the officer’s discretion in deciding whether or not the “triggering event” has occurred to almost ministerial proportions. State v. Smith, 124 N.C. App. 565, 478 S.E.2d 237, 1996 N.C. App. LEXIS 1205 (1996).

Sure Course Rule. —

The sure course rule is a stand-in for the actual presence of the illegal item at the locus to be searched. This proxy for actual presence ensures that no undue delegation of the power to find probable cause passes from magistrate to government agent. State v. Smith, 124 N.C. App. 565, 478 S.E.2d 237, 1996 N.C. App. LEXIS 1205 (1996).

Under the sure and irreversible course to destination rule, the contraband must be on a sure, irreversible course to the situs of the intended search, and any future search of the destination must be made expressly contingent upon the contraband’s arrival there. State v. Smith, 124 N.C. App. 565, 478 S.E.2d 237, 1996 N.C. App. LEXIS 1205 (1996).

Failure to Record or Summarize Testimony. —

Magistrate violated his section by neither recording nor contemporaneously summarizing the oral testimony offered by the detective before issuing a search warrant. State v. Rayfield, 231 N.C. App. 632, 752 S.E.2d 745, 2014 N.C. App. LEXIS 22 (2014).

II.Probable Cause

“Probable Cause” Defined. —

Probable cause under U.S. Const., Amend. IV exists where the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. State v. Flowers, 12 N.C. App. 487, 183 S.E.2d 820, 1971 N.C. App. LEXIS 1388, cert. denied, 279 N.C. 728, 184 S.E.2d 885, 1971 N.C. LEXIS 927 (1971).

If the apparent facts set out in an affidavit for a search warrant are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a search warrant. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972); State v. Eutsler, 41 N.C. App. 182, 254 S.E.2d 250, 1979 N.C. App. LEXIS 2398, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1517 (1979).

Within the meaning of U.S. Const., Amend. IV, and G.S. 15A-243 through this section, probable cause means a reasonable ground to believe that the proposed search will reveal the presence, upon the premises to be searched, of the objects sought and that those objects will aid in the apprehension or conviction of the offender. State v. Riddick, 291 N.C. 399, 230 S.E.2d 506, 1976 N.C. LEXIS 999 (1976); State v. Dailey, 33 N.C. App. 600, 235 S.E.2d 917, 1977 N.C. App. LEXIS 2260 (1977); State v. Eutsler, 41 N.C. App. 182, 254 S.E.2d 250, 1979 N.C. App. LEXIS 2398, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1517 (1979); State v. Jones, 299 N.C. 298, 261 S.E.2d 860, 1980 N.C. LEXIS 921 (1980); State v. Sheetz, 46 N.C. App. 641, 265 S.E.2d 914, 1980 N.C. App. LEXIS 2923 (1980); State v. Rook, 304 N.C. 201, 283 S.E.2d 732, 1981 N.C. LEXIS 1340 (1981), cert. denied, 455 U.S. 1038, 102 S. Ct. 1741, 72 L. Ed. 2d 155 (1982); State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

Probable cause, as used in U.S. Const., Amend. IV, G.S. 15A-244(2) and this section, means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender. State v. Harris, 43 N.C. App. 184, 258 S.E.2d 415, 1979 N.C. App. LEXIS 3050 (1979).

The probable cause prerequisite to the issuance of a search warrant exists when there is reasonable ground to believe that the proposed search will reveal the presence of objects which will aid in the apprehension or conviction of an offender. State v. Silhan, 302 N.C. 223, 275 S.E.2d 450, 1981 N.C. LEXIS 1057 (1981), overruled, State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133, 1997 N.C. LEXIS 491 (1997), State v. Adams, 347 N.C. 48, 490 S.E.2d 220, 1997 N.C. LEXIS 596 (1997); State v. Lindsey, 58 N.C. App. 564, 293 S.E.2d 833, 1982 N.C. App. LEXIS 2803 (1982).

Probable cause to search and seize requires facts and circumstances within the police officer’s knowledge based on reasonable and trustworthy information that a search of a particular area will reveal objects being sought in connection with criminal activity or objects which will aid the police in apprehending and convicting a criminal offender. State v. Cooke, 54 N.C. App. 33, 282 S.E.2d 800, 1981 N.C. App. LEXIS 2784 (1981), aff'd, 306 N.C. 132, 291 S.E.2d 618, 1982 N.C. LEXIS 1378 (1982).

Probable cause deals with probabilities which are factual and practical considerations of everyday life upon which reasonable and prudent men may act. State v. Spillars, 280 N.C. 341, 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972); State v. Spencer, 281 N.C. 121, 187 S.E.2d 779, 1972 N.C. LEXIS 1013 (1972); State v. Dailey, 33 N.C. App. 600, 235 S.E.2d 917, 1977 N.C. App. LEXIS 2260 (1977); State v. Horne, 59 N.C. App. 576, 297 S.E.2d 788, 1982 N.C. App. LEXIS 3177 (1982), overruled, State v. Hurst, 320 N.C. 589, 359 S.E.2d 776, 1987 N.C. LEXIS 2356 (1987).

In dealing with probable cause, as the very name implies, the Supreme Court deals with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971).

Probable cause does not mean actual and positive cause, nor does it import absolute certainty. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972); State v. Eutsler, 41 N.C. App. 182, 254 S.E.2d 250, 1979 N.C. App. LEXIS 2398, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1517 (1979).

Probable Cause Depends on Circumstances. —

Whether probable cause exists for the issuance of a search warrant depends upon a practical assessment of the relevant circumstances. State v. Jones, 299 N.C. 298, 261 S.E.2d 860, 1980 N.C. LEXIS 921 (1980); State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

The standard for determining probable cause for issuance of a search warrant based on information from informants is the totality of the circumstances analysis that traditionally has informed probable cause determinations. State v. Craver, 70 N.C. App. 555, 320 S.E.2d 431, 1984 N.C. App. LEXIS 3728 (1984).

The totality of the circumstances analysis mandates a practical, common sense determination of probable cause. State v. Craver, 70 N.C. App. 555, 320 S.E.2d 431, 1984 N.C. App. LEXIS 3728 (1984).

Question Is Existence of Reasonable Grounds for Belief. —

The determination of the existence of probable cause is not concerned with the question of whether the offense charged has been committed in fact, or whether the accused is guilty or innocent, but only with whether the affiant has reasonable grounds for his belief. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972); State v. Eutsler, 41 N.C. App. 182, 254 S.E.2d 250, 1979 N.C. App. LEXIS 2398, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1517 (1979).

When Facts Furnish Sufficient Basis for Issuance of Warrant. —

If the facts before the magistrate supply reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender, it is sufficient basis for the issuance of the search warrant. State v. Spillars, 280 N.C. 341, 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972); State v. Spencer, 281 N.C. 121, 187 S.E.2d 779, 1972 N.C. LEXIS 1013 (1972); State v. Riddick, 291 N.C. 399, 230 S.E.2d 506, 1976 N.C. LEXIS 999 (1976); State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

Resolution of Doubtful Cases. —

Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. State v. Altman, 15 N.C. App. 257, 189 S.E.2d 793, 1972 N.C. App. LEXIS 1893, cert. denied, 281 N.C. 759, 191 S.E.2d 362, 1972 N.C. LEXIS 1194 (1972); State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

Each case must be decided on its own facts and reviewing courts are to pay deference to judicial determinations of probable cause. The resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. State v. Jones, 299 N.C. 298, 261 S.E.2d 860, 1980 N.C. LEXIS 921 (1980).

When Evidence of Previous Criminal Activity Supports Warrant. —

Generally, two factors determine whether evidence of previous criminal activity is sufficient to later support search warrant: (1) the amount of the criminal activity, and (2) the time period over which the activity occurred. Absent additional facts tending to show otherwise, a one-shot type of crime, such as a single instance of possession or sale of some contraband, will support a finding of probable cause only for a few days at best. However, where affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant. State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355, 1990 N.C. App. LEXIS 1080 (1990).

Need to Determine If Evidence Is Stale. —

When evidence of previous criminal activity is advanced to support finding of probable cause, further examination must be made to determine if evidence of prior activity is stale. State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355, 1990 N.C. App. LEXIS 1080 (1990).

Plain reading of a trial court’s order on a suppression motion indicated that the court erred by not resolving the issue of whether a police detective’s affidavit could be fairly read as stating that an informant obtained the information allegedly incriminating the defendant within 48 hours of the warrant application. State v. Brown, 248 N.C. App. 72, 787 S.E.2d 81, 2016 N.C. App. LEXIS 656 (2016).

Continuity of offense may be the most important factor in determining whether probable cause is valid or stale. State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355, 1990 N.C. App. LEXIS 1080 (1990).

Inference Upheld. —

Where suspect, previously convicted of selling drugs, had within a ten-day period rented three different motel rooms, each time for several days, in a city in which he had a local address, and at two of those locations he had sold cocaine, based on these facts, it was reasonable to infer that when suspect occupied third room, he still possessed the cocaine. State v. McCoy, 100 N.C. App. 574, 397 S.E.2d 355, 1990 N.C. App. LEXIS 1080 (1990).

Test for “staleness” of information on which a search warrant is based is whether the facts indicate that probable cause exists at the time the warrant is issued. State v. Lindsey, 58 N.C. App. 564, 293 S.E.2d 833, 1982 N.C. App. LEXIS 2803 (1982).

Probable cause must be based on facts gathered in close enough proximity to the time of the issuance of the warrant as to justify a finding of probable cause at that time; but whether this test is met is to be determined on the facts of each case. State v. Windham, 57 N.C. App. 571, 291 S.E.2d 876, 1982 N.C. App. LEXIS 2682 (1982).

Before a search warrant may be issued, proof of probable cause must be established by facts so closely related to the time of issuance of the warrant so as to justify a finding of probable cause at that time. The general rule is that no more than a “reasonable” time may have elapsed. State v. Lindsey, 58 N.C. App. 564, 293 S.E.2d 833, 1982 N.C. App. LEXIS 2803 (1982).

Common sense is the ultimate criterion in determining the degree of evaporation of probable cause. The significance of the length of time between the point probable cause arose and when the warrant issued depends largely upon the property’s nature, and should be contemplated in view of the practical consideration of everyday life. State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

Double Hearsay in Application. —

Where the application for a warrant contained “double hearsay,” but did not adequately explain why this “double hearsay” was credible, the information contained in the affidavit and on the face of the warrant was inadequate to establish that probable cause existed for the issuance of the warrant. State v. Styles, 116 N.C. App. 479, 448 S.E.2d 385, 1994 N.C. App. LEXIS 1048 (1994).

Twenty-four hour span between informant’s contact with defendant and issuance of warrant did not render the information so stale as to fail to establish probable cause. State v. Windham, 57 N.C. App. 571, 291 S.E.2d 876, 1982 N.C. App. LEXIS 2682 (1982).

Year-Old Information as to Possession of Marijuana. —

As marijuana is a substance which can be easily concealed and moved about and which is likely to be disposed of or used, year-old information, which was the only evidence of residential possession by defendants was too stale to establish probable cause to search defendant’s residence, even though the affidavit on which the search warrant was based also presented more recent information concerning defendant’s drug activities. State v. Lindsey, 58 N.C. App. 564, 293 S.E.2d 833, 1982 N.C. App. LEXIS 2803 (1982).

Probable Cause May Be Based on Evidence Not Competent in Trial. —

A finding of probable cause for the issuance of search warrants may rest upon evidence which is not competent in a criminal trial. State v. Flowers, 12 N.C. App. 487, 183 S.E.2d 820, 1971 N.C. App. LEXIS 1388, cert. denied, 279 N.C. 728, 184 S.E.2d 885, 1971 N.C. LEXIS 927 (1971).

A valid search warrant may be issued upon the basis of an affidavit setting forth information which may not be competent as evidence. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971); State v. Spillars, 280 N.C. 341, 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972); State v. Spencer, 281 N.C. 121, 187 S.E.2d 779, 1972 N.C. LEXIS 1013 (1972); State v. Dailey, 33 N.C. App. 600, 235 S.E.2d 917, 1977 N.C. App. LEXIS 2260 (1977); State v. Horne, 59 N.C. App. 576, 297 S.E.2d 788, 1982 N.C. App. LEXIS 3177 (1982), overruled, State v. Hurst, 320 N.C. 589, 359 S.E.2d 776, 1987 N.C. LEXIS 2356 (1987).

As to use of electronic tracking beepers to establish probable cause, see State v. Hendricks, 43 N.C. App. 245, 258 S.E.2d 872, 1979 N.C. App. LEXIS 3069 (1979), cert. denied, 299 N.C. 123, 262 S.E.2d 6, 1980 N.C. LEXIS 971 (1980).

Probable Cause to Be Based Solely on Affidavit Where Witness Did Not Recall Speaking to Judge. —

Where the sole witness who appeared before district judge at the time search warrant was issued had no independent recollection of speaking with the judge about this warrant, a finding of probable cause had to be based solely upon the allegations in the affidavit. State v. Campbell, 14 N.C. App. 493, 188 S.E.2d 560, 1972 N.C. App. LEXIS 2161, cert. denied, 281 N.C. 624, 190 S.E.2d 467, 1972 N.C. LEXIS 1136 (1972), aff'd, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972).

Triggering Events for Anticipatory Warrant. —

The magistrate must ensure that the “triggering events” for an anticipatory warrant, those events which form the basis for probable cause, are both ascertainable and preordained. State v. Smith, 124 N.C. App. 565, 478 S.E.2d 237, 1996 N.C. App. LEXIS 1205 (1996).

III.Affidavits

Sufficiency of Affidavit. —

The test to determine the sufficiency of affidavits upon which search warrants are issued is that the magistrate must be informed of some of the underlying circumstances from which the informant concluded that what he stated to the affiant was correct, and some of the underlying circumstances from which the officer concluded that the informant whose identity need not be disclosed was “credible” or his information “reliable.” State v. Chapman, 24 N.C. App. 462, 211 S.E.2d 489, 1975 N.C. App. LEXIS 2405 (1975).

In an application for a search warrant, the affidavit is deemed sufficient if it supplies reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender. State v. Hamlin, 36 N.C. App. 605, 244 S.E.2d 481, 1978 N.C. App. LEXIS 2558 (1978); State v. Goforth, 65 N.C. App. 302, 309 S.E.2d 488, 1983 N.C. App. LEXIS 3464 (1983).

The affidavit upon which a search warrant is issued is sufficient if it supplies reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender. State v. Sheetz, 46 N.C. App. 641, 265 S.E.2d 914, 1980 N.C. App. LEXIS 2923 (1980); State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982).

To supply reasonable cause to believe the objects sought are on the described premises, the affidavit supporting a search warrant must provide the magistrate with underlying circumstances from which to judge the validity of the informant’s conclusion that the articles sought are at the place to be searched. State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982).

The affidavit must furnish reasonable cause to believe that the search will reveal the presence of the articles sought on the premises described in the application of the warrant and that such objects will aid in the apprehension or conviction of the offender. State v. Bright, 301 N.C. 243, 271 S.E.2d 368, 1980 N.C. LEXIS 1165 (1980).

Affidavit failed to provide sufficient information showing that the confidential informant was reliable, as the officer did not state on what prior occasions the informant proved reliable, whether the informant had personally witnessed defendant’s marijuana growing operation, or that the informant had purchased marijuana from defendants. State v. Benters, 231 N.C. App. 295, 750 S.E.2d 584, 2013 N.C. App. LEXIS 1237 (2013), aff'd, 367 N.C. 660, 766 S.E.2d 593, 2014 N.C. LEXIS 963 (2014).

Motion to suppress was properly denied in a drug case because there was no federal constitutional violation where an affidavit established a substantial nexus between marijuana remnants recovered from a vehicle and defendant’s residence and was also sufficient to support a finding of probable cause necessary to search defendant’s apartment. In addition to information given to the officer by a citizen, the affidavit stated that surveillance of the apartment was conducted, a driver was observed making six-minute visit, and marijuana and substantial cash were discovered during a subsequent investigatory stop. State v. McKinney, 368 N.C. 161, 775 S.E.2d 821, 2015 N.C. LEXIS 686 (2015).

Suppression order clearly indicated that a trial court erred by considering a police detective’s hearing testimony about what the detective intended an affidavit to mean. There was evidence outside the four corners of the affidavit which was not recorded contemporaneously with the magistrate’s consideration of the application in determining whether a substantial basis existed for the magistrate’s finding of probable cause. State v. Brown, 248 N.C. App. 72, 787 S.E.2d 81, 2016 N.C. App. LEXIS 656 (2016).

Search warrant application and affidavit provided sufficient information for the magistrate to make an independent and neutral determination that probable cause existed for the issuance of the warrant which led to the search of defendant’s computer and discovery of child pornography. State v. Gerard, 249 N.C. App. 500, 790 S.E.2d 592, 2016 N.C. App. LEXIS 975 (2016).

Affidavit in support of a search warrant application did not provide sufficient facts from which the magistrate could conclude there was probable cause because it did not specify when the purported events occurred nor did it indicate sufficient facts from which the magistrate could reasonably infer the timing of such events; therefore, the search warrant obtained as a result of the affidavit was invalid and resulted in an unreasonable search and seizure. State v. Logan, 278 N.C. App. 319, 861 S.E.2d 908, 2021- NCCOA-311, 2021 N.C. App. LEXIS 327 (2021).

Affidavit in support of a search warrant application did not provide sufficient facts from which the magistrate could conclude there was probable cause because it did not specify when the purported events occurred nor did it indicate sufficient facts from which the magistrate could reasonably infer the timing of such events; therefore, the search warrant obtained as a result of the affidavit was invalid and resulted in an unreasonable search and seizure. State v. Logan, 278 N.C. App. 319, 861 S.E.2d 908, 2021- NCCOA-311, 2021 N.C. App. LEXIS 327 (2021).

Purely Conclusory Affidavit Insufficient. —

A search warrant cannot be issued upon affidavits which are purely conclusory and which do not state underlying circumstances upon which the affiant’s belief of probable cause is founded. Further, there must be facts or circumstances in the affidavit which implicate the premises to be searched. State v. Bright, 301 N.C. 243, 271 S.E.2d 368, 1980 N.C. LEXIS 1165 (1980); State v. Goforth, 65 N.C. App. 302, 309 S.E.2d 488, 1983 N.C. App. LEXIS 3464 (1983).

Probable cause for a search warrant cannot be established by affidavits which are purely conclusory in nature, and therefore, the affidavit must set forth enough of the underlying facts and circumstances so that the magistrate can perform his detached judicial function as a check upon intrusions by law-enforcement officials into the privacy of individuals. State v. Silhan, 302 N.C. 223, 275 S.E.2d 450, 1981 N.C. LEXIS 1057 (1981), overruled, State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133, 1997 N.C. LEXIS 491 (1997), State v. Adams, 347 N.C. 48, 490 S.E.2d 220, 1997 N.C. LEXIS 596 (1997).

The allegation that agents have conducted an investigation which has disclosed evidence of irregularities which, if supported by evidence and found to be true, would constitute serious violations of the law on the part of the defendant, without the disclosure of facts from which the magistrate could ascertain the existence of irregularities that would constitute serious violations of the law, does not meet the constitutional standard for issuance of a search warrant. State v. Sheetz, 46 N.C. App. 641, 265 S.E.2d 914, 1980 N.C. App. LEXIS 2923 (1980).

When Affidavit Is Sufficient in Itself. —

If the facts set out in the affidavit are sufficient within themselves to justify the finding of probable cause, the affidavit is sufficient. State v. Wooten, 20 N.C. App. 139, 201 S.E.2d 89, 1973 N.C. App. LEXIS 1493 (1973), cert. denied, 284 N.C. 623, 202 S.E.2d 277, 1974 N.C. LEXIS 1330 (1974), overruled, State v. Harris, 25 N.C. App. 404, 213 S.E.2d 414, 1975 N.C. App. LEXIS 2273 (1975).

When Testimony of Witnesses Necessary. —

Where the affidavit indicates the basis for the finding of probable cause, but is not in itself sufficient to establish probable cause, testimony of witnesses will be necessary to establish whether there was in fact sufficient evidence before the magistrate to justify his finding of probable cause to issue the search warrant. State v. Hicks, 60 N.C. App. 116, 298 S.E.2d 180, 1982 N.C. App. LEXIS 3267 (1982).

Common-Sense Interpretation of Affidavits. —

Affidavits for search warrants must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. State v. Flowers, 12 N.C. App. 487, 183 S.E.2d 820, 1971 N.C. App. LEXIS 1388, cert. denied, 279 N.C. 728, 184 S.E.2d 885, 1971 N.C. LEXIS 927 (1971); State v. Foye, 14 N.C. App. 200, 188 S.E.2d 67, 1972 N.C. App. LEXIS 2086 (1972).

Because applications are normally submitted by police officers who do not have legal training, the language is to be construed in a common-sensical, nontechnical and realistic way. State v. Windham, 57 N.C. App. 571, 291 S.E.2d 876, 1982 N.C. App. LEXIS 2682 (1982).

Affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation, and technical requirements of elaborate specificity once exacted under common-law pleadings have no proper place in this area. State v. Flowers, 12 N.C. App. 487, 183 S.E.2d 820, 1971 N.C. App. LEXIS 1388, cert. denied, 279 N.C. 728, 184 S.E.2d 885, 1971 N.C. LEXIS 927 (1971); State v. Foye, 14 N.C. App. 200, 188 S.E.2d 67, 1972 N.C. App. LEXIS 2086 (1972).

The commands of U.S. Const., Amend. IV, like all constitutional requirements, are practical and not abstract. If the teachings of the cases are to be followed and the constitutional policy served, affidavits for search warrants must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. Thus, when a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing courts will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant, and will sustain the judicial determination so long as there was substantial basis for (the magistrate) to conclude that narcotics were probably present. State v. Hicks, 60 N.C. App. 116, 298 S.E.2d 180, 1982 N.C. App. LEXIS 3267 (1982).

Affidavit Must Implicate Premises. —

It is necessary that an affidavit for a search warrant implicate the premises to be searched. State v. Silhan, 302 N.C. 223, 275 S.E.2d 450, 1981 N.C. LEXIS 1057 (1981), overruled, State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133, 1997 N.C. LEXIS 491 (1997), State v. Adams, 347 N.C. 48, 490 S.E.2d 220, 1997 N.C. LEXIS 596 (1997).

Affidavit failed to furnish an adequate basis for the finding of probable cause where nothing in the affidavit supported the conclusion that any of the events referred to occurred on or in connection with the premises to be searched. State v. Campbell, 14 N.C. App. 493, 188 S.E.2d 560, 1972 N.C. App. LEXIS 2161, cert. denied, 281 N.C. 624, 190 S.E.2d 467, 1972 N.C. LEXIS 1136 (1972), aff'd, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972).

Affidavit was held insufficient to support a finding of probable cause for issuance of a warrant to search defendant’s premises for LSD, where the affidavit contained no allegation that either the affiant or the confidential informant had personal knowledge that LSD was on defendant’s premises. State v. Graves, 16 N.C. App. 389, 192 S.E.2d 122, 1972 N.C. App. LEXIS 1713 (1972).

Issuing Official May Rely on Sworn Statement of Affiant Appearing in Person. —

A judicial official is entitled to rely upon the sworn statement of affiant, an A.B.C. officer, who appears before him in person, in concluding that the affiant is correctly reciting what has been told him by an informer. State v. Foye, 14 N.C. App. 200, 188 S.E.2d 67, 1972 N.C. App. LEXIS 2086 (1972).

A magistrate is entitled to rely upon the sworn statement of an affiant police officer who appears before the magistrate in person, in concluding that the affiant is correctly reciting what has been told him by his informant. State v. Shirley, 12 N.C. App. 440, 183 S.E.2d 880, 1971 N.C. App. LEXIS 1381, cert. denied, 279 N.C. 729, 184 S.E.2d 885, 1971 N.C. LEXIS 929 (1971).

Affidavit Held Sufficient to Establish Probable Cause. —

Affidavit describing the property to be seized, giving defendant’s name and address, making reference to a confidential informer and his reliability, and stating the information given affiant by the informer was sufficient to establish probable cause to issue a search warrant as required by subsection (b) of this section. State v. Davis, 20 N.C. App. 739, 203 S.E.2d 91, 1974 N.C. App. LEXIS 2540, cert. denied, 285 N.C. 375, 205 S.E.2d 726, 1974 N.C. LEXIS 990 (1974).

Where affidavit clearly stated that the residence to be searched was occupied by defendant and his brothers, that witnesses had identified one of defendant’s brothers, and that a reliable informant had stated that a shotgun was at the residence, the affidavit disclosed sufficient information for a reviewing magistrate to determine that there was probable cause. State v. Colvin, 92 N.C. App. 152, 374 S.E.2d 126, 1988 N.C. App. LEXIS 1024 (1988).

Affidavit Held Sufficient Notwithstanding Erroneous Statement. —

Statement in an affidavit given to obtain a search warrant concerning defendant’s prior narcotics conviction was error because it was based on erroneous information, though the error was not known to the officer making the affidavit; however, the error was immaterial because the trial court found that the affidavit was nevertheless sufficient on its face to support a finding of probable cause for the issuance of the search warrant for narcotics, and evidence obtained as a result of the search under the warrant was properly admitted. State v. Steele, 18 N.C. App. 126, 196 S.E.2d 379, 1973 N.C. App. LEXIS 1794 (1973).

Affidavit may be based on hearsay information if the magistrate is informed of underlying circumstances upon which the informant bases his conclusion as to the whereabouts of the articles and the underlying circumstances upon which the officer concluded that the informant was credible. State v. Spillars, 280 N.C. 341, 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972); State v. Spencer, 281 N.C. 121, 187 S.E.2d 779, 1972 N.C. LEXIS 1013 (1972).

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the articles to be searched for were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was “credible” or his information “reliable.” State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971); State v. Hayes, 291 N.C. 293, 230 S.E.2d 146, 1976 N.C. LEXIS 974 (1976); State v. Dailey, 33 N.C. App. 600, 235 S.E.2d 917, 1977 N.C. App. LEXIS 2260 (1977); State v. McKinnon, 306 N.C. 288, 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

The affidavit may be based on hearsay from an undisclosed informant and need not reflect the personal observations of affiant, but the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were present and some of the underlying circumstances from which the affiant concluded that the informant was credible and reliable. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752, 1972 N.C. LEXIS 894 (1972); State v. Altman, 15 N.C. App. 257, 189 S.E.2d 793, 1972 N.C. App. LEXIS 1893, cert. denied, 281 N.C. 759, 191 S.E.2d 362, 1972 N.C. LEXIS 1194 (1972); State v. Horne, 59 N.C. App. 576, 297 S.E.2d 788, 1982 N.C. App. LEXIS 3177 (1982), overruled, State v. Hurst, 320 N.C. 589, 359 S.E.2d 776, 1987 N.C. LEXIS 2356 (1987).

While an affidavit does not have to reflect the personal observations of the affiant, a two-pronged test is required to sustain a search warrant. The first requirement is that the magistrate be informed of some of the underlying circumstances from which the informant drew his conclusions. The second standard is that the magistrate be informed of the underlying circumstances from which affiant concluded that the informant was credible and reliable. State v. McKoy, 16 N.C. App. 349, 191 S.E.2d 897, 1972 N.C. App. LEXIS 1702 (1972), cert. denied, 282 N.C. 584, 193 S.E.2d 744, 1973 N.C. LEXIS 1128 (1973).

Admission into Evidence of Warrant and Affidavit Containing Hearsay Held Erroneous. —

Where the affidavit contained hearsay statements indicating defendant’s complicity in another crime without showing that he had been convicted of that crime, the admission into evidence of the search warrant and the accompanying affidavit was erroneous and resulted in error prejudicial to defendant. State v. Spillars, 280 N.C. 341, 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972).

Typographical Error Held Not Fatal. —

Where the year had recently changed, a typographical error in the year date was not fatal to the sufficiency of the affidavit. State v. Beddard, 35 N.C. App. 212, 241 S.E.2d 83, 1978 N.C. App. LEXIS 2926 (1978).

IV.Informants

Mere characterization of informant as reliable might not, in itself, provide a sufficient factual basis for the magistrate to credit the report of the informer; there must be facts, recited and sworn to in the affidavit as being within the personal knowledge of the affiant, which furnish a sufficiently substantial basis to support the magistrate’s independent finding crediting the report of the unidentified informer. State v. Shirley, 12 N.C. App. 440, 183 S.E.2d 880, 1971 N.C. App. LEXIS 1381, cert. denied, 279 N.C. 729, 184 S.E.2d 885, 1971 N.C. LEXIS 929 (1971).

If an unidentified informant has supplied all or part of the information contained in the affidavit supplementing all application for a search warrant, some of the underlying facts and circumstances which show the informant is credible or that the information is reliable must be set forth before the issuing officer. State v. Craver, 70 N.C. App. 555, 320 S.E.2d 431, 1984 N.C. App. LEXIS 3728 (1984).

Previous Reliability Need Not Be Averred. —

In issuing a search warrant based upon the information of an informant, an averment of previous reliability of the informant is not necessary, but the inquiry is whether the informant’s present information is truthful or reliable. State v. Chapman, 24 N.C. App. 462, 211 S.E.2d 489, 1975 N.C. App. LEXIS 2405 (1975).

Statement of Past Reliability Is Not Mere Conclusion. —

But the statement that the informant has proven reliable in the past is a statement of fact and not a mere conclusion. State v. Altman, 15 N.C. App. 257, 189 S.E.2d 793, 1972 N.C. App. LEXIS 1893, cert. denied, 281 N.C. 759, 191 S.E.2d 362, 1972 N.C. LEXIS 1194 (1972).

And Tends to Show That Informer Is Credible. —

Where the affidavit stated that the informer had furnished information in the past which had resulted in the seizure of narcotic drugs and subsequent conviction, that tended to show that the informer was credible and his information reliable. State v. Foye, 14 N.C. App. 200, 188 S.E.2d 67, 1972 N.C. App. LEXIS 2086 (1972).

The statement in the affidavit that the informant had furnished reliable information in the past which had in fact led to the arrest of several persons and the testimony of the officer prior to the issuance of the warrant were sufficient to show the reliability of the informer. State v. Hayes, 291 N.C. 293, 230 S.E.2d 146, 1976 N.C. LEXIS 974 (1976).

And Meets Minimum Standards. —

The statement that the informant has proven reliable in the past meets minimum standards. State v. Altman, 15 N.C. App. 257, 189 S.E.2d 793, 1972 N.C. App. LEXIS 1893, cert. denied, 281 N.C. 759, 191 S.E.2d 362, 1972 N.C. LEXIS 1194 (1972); State v. McKoy, 16 N.C. App. 349, 191 S.E.2d 897, 1972 N.C. App. LEXIS 1702 (1972), cert. denied, 282 N.C. 584, 193 S.E.2d 744, 1973 N.C. LEXIS 1128 (1973).

Where the circumstances set forth in support of the informant’s reliability were that he “has proven reliable and credible in the past,” those circumstances were the irreducible minimum on which a warrant could be sustained. State v. Altman, 15 N.C. App. 257, 189 S.E.2d 793, 1972 N.C. App. LEXIS 1893, cert. denied, 281 N.C. 759, 191 S.E.2d 362, 1972 N.C. LEXIS 1194 (1972); State v. McKoy, 16 N.C. App. 349, 191 S.E.2d 897, 1972 N.C. App. LEXIS 1702 (1972), cert. denied, 282 N.C. 584, 193 S.E.2d 744, 1973 N.C. LEXIS 1128 (1973).

An affiant’s statement that a confidential informant had given this agent good and reliable information in the past that had been checked by the affiant and found to be true meets the minimum standard to sustain a warrant. State v. McKoy, 16 N.C. App. 349, 191 S.E.2d 897, 1972 N.C. App. LEXIS 1702 (1972), cert. denied, 282 N.C. 584, 193 S.E.2d 744, 1973 N.C. LEXIS 1128 (1973).

An affidavit indicating the reliability of its information by naming an informant, indicating the value of his past assistance and corroborating that information with statements from other officers was sufficient to support the issuance of a search warrant for defendant’s premises. State v. McCuien, 17 N.C. App. 109, 193 S.E.2d 349, 1972 N.C. App. LEXIS 1579 (1972).

What Tip Must Reveal. —

It is essential that the informant’s tip reveal that the objects sought are on the premises to be searched. State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982).

Absent a statement claiming personal observation or otherwise detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor or an accusation based merely on an individual’s general reputation. State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982).

Personal and recent observations by an unidentified informer of criminal activity show that the information was gained in a reliable manner and are more than a bald and unilluminating assertion of suspicion. State v. Foye, 14 N.C. App. 200, 188 S.E.2d 67, 1972 N.C. App. LEXIS 2086 (1972).

Observation of Stolen Property in Defendants’ Premises. —

Information contained in affidavits was sufficient for the magistrate to find probable cause for issuance of search warrants for defendants’ premises where such information included a statement that a reliable informer had seen part of the stolen property in defendants’ premises. State v. Shanklin, 16 N.C. App. 712, 193 S.E.2d 341, 1972 N.C. App. LEXIS 1810 (1972), cert. denied, 282 N.C. 674, 194 S.E.2d 154, 1973 N.C. LEXIS 1149 (1973).

If the informant has recently seen stolen items in defendant’s possession at his residence, and he states this to the affiant, affidavit would clearly suffice. State v. Whitley, 58 N.C. App. 539, 293 S.E.2d 838, 1982 N.C. App. LEXIS 2805 (1982).

§ 15A-246. Form and content of the search warrant.

A search warrant must contain:

  1. The name and signature of the issuing official with the time and date of issuance above his signature; and
  2. The name of a specific officer or the classification of officers to whom the warrant is addressed; and
  3. The names of the applicant and of all persons whose affidavits or testimony were given in support of the application; and
  4. A designation sufficient to establish with reasonable certainty the premises, vehicles, or persons to be searched; and
  5. A description or a designation of the items constituting the object of the search and authorized to be seized.

History. 1868-9, c. 178, subch. 3, s. 39; Code, s. 1172; Rev., s. 3164; C.S., s. 4530; 1961, c. 1069; 1969, c. 869, s. 8; 1973, c. 1286, s. 1.

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 15-26.

Constitutional Requirements. —

A search warrant and affidavit meet the requirements of this section, as well as the requirements of U.S. Const., Amend. IV, where (1) the warrant describes with reasonable certainty the premises to be searched and the contraband for which the search was to be made, (2) the affidavit indicates the basis for a finding of probable cause, and (3) the warrant is signed by the magistrate and bears the date and hour of its issuance. State v. Bush, 10 N.C. App. 247, 178 S.E.2d 313, 1970 N.C. App. LEXIS 1245 (1970).

Search warrant will be presumed regular if irregularity does not appear on the face of the record. State v. Spillars, 280 N.C. 341, 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972); State v. Travatello, 24 N.C. App. 511, 211 S.E.2d 467, 1975 N.C. App. LEXIS 2415 (1975).

When Presumption of Regularity Applicable. —

The presumption of regularity of a search warrant will operate only when the facts in the record do not indicate the occurrence of any irregularities and no objection to the validity of the warrant has been raised in a timely fashion. State v. Lombardo, 306 N.C. 594, 295 S.E.2d 399, 1982 N.C. LEXIS 1545 (1982).

The presumption of regularity of a search warrant is applicable only in situations where the defendant challenges the validity of a search warrant that was not introduced into evidence on the ground that the warrant itself does not conform to technical statutory requirements. State v. Lombardo, 306 N.C. 594, 295 S.E.2d 399, 1982 N.C. LEXIS 1545 (1982).

If nothing else appears and if no objection to the validity of the warrant had been raised in the superior court, an appellate court would be justified in presuming the officers of the law performed their legal duties and that the warrant was legal and valid. State v. Lombardo, 306 N.C. 594, 295 S.E.2d 399, 1982 N.C. LEXIS 1545 (1982).

Common Sense Interpretation. —

Search warrants must be tested and interpreted by magistrates and courts in a common sense and realistic fashion, as they are normally drafted by nonlawyers in the midst and haste of a criminal investigation. State v. Hansen, 27 N.C. App. 459, 219 S.E.2d 641, 1975 N.C. App. LEXIS 1880 (1975), cert. denied, 289 N.C. 453, 223 S.E.2d 161, 1976 N.C. LEXIS 1310 (1976).

Technical requirements of elaborate specificity once exacted under common-law pleadings have no proper place now in the area of search warrants. State v. Hansen, 27 N.C. App. 459, 219 S.E.2d 641, 1975 N.C. App. LEXIS 1880 (1975), cert. denied, 289 N.C. 453, 223 S.E.2d 161, 1976 N.C. LEXIS 1310 (1976).

Incorporation of Affidavit by Reference. —

Under this section, it was permissible to incorporate the description of the items to be searched for and the place to be searched in the warrant by reference to the affidavit. State v. Flowers, 12 N.C. App. 487, 183 S.E.2d 820, 1971 N.C. App. LEXIS 1388, cert. denied, 279 N.C. 728, 184 S.E.2d 885, 1971 N.C. LEXIS 927 (1971); State v. Shanklin, 16 N.C. App. 712, 193 S.E.2d 341, 1972 N.C. App. LEXIS 1810 (1972), cert. denied, 282 N.C. 674, 194 S.E.2d 154, 1973 N.C. LEXIS 1149 (1973).

Where an affidavit complied with the provisions of this section and met the constitutional standard of reasonableness and probable cause requisite to the issuance of a search warrant, the search warrant, by reference to the affidavit, which was made a part of the warrant, described with reasonable certainty the premises to be searched, sufficiently indicated the basis for the finding of probable cause, and sufficiently described the contraband for which the search was to be conducted. State v. Murphy, 15 N.C. App. 420, 190 S.E.2d 361, 1972 N.C. App. LEXIS 1930 (1972).

Anticipatory search warrant sufficiently incorporated by reference the attached affidavit that clearly identified the triggering event for execution of the warrant, which was any attempt to deliver the subject package suspected of containing illegal drugs. The warrant and incorporated affidavit could be read together to provide the specificity and particularity required under the United States and North Carolina Constitutions and G.S. 15A-246. State v. Carrillo, 164 N.C. App. 204, 595 S.E.2d 219, 2004 N.C. App. LEXIS 707 (2004).

Purpose of Particularity Requirement. —

The requirement that warrants shall particularly describe the things to be seized is to prevent the seizure of one thing under a warrant describing another and to leave nothing to the discretion of the officer executing the warrant in determining what is to be taken. State v. Foye, 14 N.C. App. 200, 188 S.E.2d 67, 1972 N.C. App. LEXIS 2086 (1972); State v. Shanklin, 16 N.C. App. 712, 193 S.E.2d 341, 1972 N.C. App. LEXIS 1810 (1972), cert. denied, 282 N.C. 674, 194 S.E.2d 154, 1973 N.C. LEXIS 1149 (1973).

Particularity Requirement Where Books Are Seized. —

The particularity requirement is to be accorded the most scrupulous exactitude when the things are books, and the basis for the seizure is the ideas which they contain. But when rights under U.S. Const., Amend. I are not involved, the specificity requirement is more flexible. State v. Foye, 14 N.C. App. 200, 188 S.E.2d 67, 1972 N.C. App. LEXIS 2086 (1972).

Warrant Authorizing Seizure of Limited Class of Things Is Not Prohibited. —

A warrant empowering officers to seize a limited class of things, i.e., unlawfully possessed narcotic drugs, is not prohibited. State v. Foye, 14 N.C. App. 200, 188 S.E.2d 67, 1972 N.C. App. LEXIS 2086 (1972).

Description of Drugs to Be Seized Held Sufficiently Particular. —

The description in the search warrant was particular enough to prevent the warrant from being a general search warrant within the prohibition of U.S. Const., Amend. IV and of N.C. Const., Art. I, § 20, where the affidavit upon which it was based referred only to “narcotic drugs, the possession of which is a crime” and did not describe the things to be seized with more particularity. State v. Foye, 14 N.C. App. 200, 188 S.E.2d 67, 1972 N.C. App. LEXIS 2086 (1972).

The words “illegally held narcotic drugs” described the things to be seized with sufficient particularity to prevent the warrant from being a general search warrant within the prohibition of U.S. Const., Amend. IV and of N.C. Const., Art. I, § 20. State v. Shirley, 12 N.C. App. 440, 183 S.E.2d 880, 1971 N.C. App. LEXIS 1381, cert. denied, 279 N.C. 729, 184 S.E.2d 885, 1971 N.C. LEXIS 929 (1971).

Description of Premises Held Sufficient. —

A description of the premises to be searched was not rendered uncertain by the fact that the affidavit incorrectly described the premises as “a brick structure” when in fact it was made of stone. State v. Shirley, 12 N.C. App. 440, 183 S.E.2d 880, 1971 N.C. App. LEXIS 1381, cert. denied, 279 N.C. 729, 184 S.E.2d 885, 1971 N.C. LEXIS 929 (1971).

A description of a mobile home to be searched was not fatally defective when the warrant named the son as owner when in fact it was rented to the son by his father or when there was another mobile home of the same color as that described in the warrant but which was not owned by either of these parties or occupied by the defendant. State v. Woods, 26 N.C. App. 584, 216 S.E.2d 492, 1975 N.C. App. LEXIS 2118 (1975).

Search warrant’s description of the type and color of the residence in which defendant resided, with a map to the residence attached, which listed defendant’s first name only, and stated that an informant had observed defendant at the residence searched, but stated an incorrect address for the premises, was adequate, under G.S. 15A-246(4) and 15A-246(5). State v. Moore, 152 N.C. App. 156, 566 S.E.2d 713, 2002 N.C. App. LEXIS 853 (2002).

Trial court properly denied defendant’s motion to suppress evidence pursuant to G.S. 15A-972 in a prosecution on drug charges, as an anticipatory search warrant under which the evidence in question was seized complied with state requirements for such a warrant, and G.S. 15A-246(4) did not require that the address listed in the warrant be listed in a city directory. State v. Phillips, 160 N.C. App. 549, 586 S.E.2d 540, 2003 N.C. App. LEXIS 1832 (2003).

Search of Outbuildings. —

The search of defendant’s premises did not exceed the scope of the warrant by including a tool shed as well as the house itself. State v. Travatello, 24 N.C. App. 511, 211 S.E.2d 467, 1975 N.C. App. LEXIS 2415 (1975).

Notation of Time of Issuance. —

The search warrant failed to meet the requirements of subsection (1) where the time of issuance was not found above the signature of the magistrate. Such an omission could be significant, but in this case there is no prejudice since the time of issuance was noted elsewhere on the face of the warrant. State v. Hyleman, 89 N.C. App. 424, 366 S.E.2d 530, 1988 N.C. App. LEXIS 155 (1988), rev'd, 324 N.C. 506, 379 S.E.2d 830, 1989 N.C. LEXIS 302 (1989).

§ 15A-247. Who may execute a search warrant.

A search warrant may be executed by any law-enforcement officer acting within his territorial jurisdiction, whose investigative authority encompasses the crime or crimes involved.

History. 1868-9, c. 178, subch. 3, s. 38; Code, s. 1171; Rev., s. 3163; C.S., s. 4529; 1941, c. 53; 1949, c. 1179; 1955, c. 7; 1965, c. 377; 1969, c. 869, s. 8; 1973, c. 1286, s. 1.

§ 15A-248. Time of execution of a search warrant.

A search warrant must be executed within 48 hours from the time of issuance. Any warrant not executed within that time limit is void and must be marked “not executed” and returned without unnecessary delay to the clerk of the issuing court.

History. 1973, c. 1286, s. 1.

CASE NOTES

Substantial Compliance. —

A search warrant was not invalid, even though it was not executed within 48 hours, where the warrant was served on a bank within 48 hours, but the documents were not produced within that period because that the bank needed to locate and assemble the records. State v. Davidson, 131 N.C. App. 276, 506 S.E.2d 743, 1998 N.C. App. LEXIS 1318 (1998).

§ 15A-249. Officer to give notice of identity and purpose.

The officer executing a search warrant must, before entering the premises, give appropriate notice of his identity and purpose to the person to be searched, or the person in apparent control of the premises to be searched. If it is unclear whether anyone is present at the premises to be searched, he must give the notice in a manner likely to be heard by anyone who is present.

History. 1973, c. 1286, s. 1.

Legal Periodicals.

For survey of 1978 law on criminal procedure, see 57 N.C.L. Rev. 1009 (1979).

CASE NOTES

Purpose of Notice Requirement. —

The notice requirement is for the protection of the officers as well as the protection of the occupants and their constitutional rights. State v. Gaines, 33 N.C. App. 66, 234 S.E.2d 42, 1977 N.C. App. LEXIS 2099 (1977).

One of the purposes of this section is to protect the public from unreasonable searches and seizures and to guard the right to privacy in homes. State v. Brown, 35 N.C. App. 634, 242 S.E.2d 184, 1978 N.C. App. LEXIS 3049 (1978).

Officers to Give Notice and Demand Entry Absent Invitation or Permission. —

Even though police officers have a valid search or arrest warrant, absent invitation or permission, ordinarily they may not enter a private home unless they first give notice of their authority and purpose and make a demand for entry. State v. Miller, 16 N.C. App. 1, 190 S.E.2d 888, 1972 N.C. App. LEXIS 1633 (1972), modified, 282 N.C. 633, 194 S.E.2d 353, 1973 N.C. LEXIS 1135 (1973); State v. Gaines, 33 N.C. App. 66, 234 S.E.2d 42, 1977 N.C. App. LEXIS 2099 (1977).

Where police officer, in executing search warrant for drugs, simultaneously announced his presence and entered residence, violating the provisions of G.S. 15A-249, under G.S. 15A-974(2), the violation was not substantial and did not require that the evidence be suppressed; no one on the premises objected, the occupants, as drug dealers, were likely to be armed, and entry prevented destruction of drugs. State v. Sumpter, 150 N.C. App. 431, 563 S.E.2d 60, 2002 N.C. App. LEXIS 493 (2002).

Time Between Notice and Entry. —

The amount of time required to be given between notice and entry must depend on the particular circumstances. State v. Gaines, 33 N.C. App. 66, 234 S.E.2d 42, 1977 N.C. App. LEXIS 2099 (1977).

Where police officer, in executing search warrant for drugs, simultaneously announced his presence and entered the residence, the officer violated G.S. 15A-249. State v. Sumpter, 150 N.C. App. 431, 563 S.E.2d 60, 2002 N.C. App. LEXIS 493 (2002).

Effect of Exigent Circumstances. —

In a search and seizure case, where the exigent circumstances are adequate to justify the warrantless search of defendant’s house by officers under the plain view doctrine, they would also be sufficient to excuse the officers from the knock and announce requirement. State v. Prevette, 43 N.C. App. 450, 259 S.E.2d 595, 1979 N.C. App. LEXIS 3113 (1979), cert. denied, 299 N.C. 124, 261 S.E.2d 925, 1980 N.C. LEXIS 974 (1980), cert. denied, 447 U.S. 906, 100 S. Ct. 2988, 64 L. Ed. 2d 855, 1980 U.S. LEXIS 2343 (1980).

Notice Held Sufficient. —

See State v. Gaines, 33 N.C. App. 66, 234 S.E.2d 42, 1977 N.C. App. LEXIS 2099 (1977); State v. Fruitt, 35 N.C. App. 177, 241 S.E.2d 125, 1978 N.C. App. LEXIS 2919, cert. denied, 295 N.C. 93, 244 S.E.2d 261, 1978 N.C. LEXIS 972 (1978); State v. Trapper, 48 N.C. App. 481, 269 S.E.2d 680, 1980 N.C. App. LEXIS 3296 (1980), cert. denied, 451 U.S. 997, 101 S. Ct. 2338, 68 L. Ed. 2d 856, 1981 U.S. LEXIS 245 (1981).

Police officers who wore search and raid jackets which identified them and their purpose when they entered defendant’s business yelling “police officers, search warrant” complied with the requirements of this section. State v. Moose, 101 N.C. App. 59, 398 S.E.2d 898, 1990 N.C. App. LEXIS 1236 (1990).

Trial court did not err by denying the defendant’s motion to suppress because the defendant failed to show that the officers’ execution of the search warrant violated G.S. 15A-249 as the trial court’s findings established that the officers announced their presence in accordance with this section’s knock-and-announce requirement and after waiting a reasonable time and hearing no response were authorized under G.S. 15A-251 to break and enter into the residence. State v. Winchester, 260 N.C. App. 418, 818 S.E.2d 306, 2018 N.C. App. LEXIS 716 (2018).

§ 15A-250.

Reserved for future codification purposes.

§ 15A-251. Entry by force.

An officer may break and enter any premises or vehicle when necessary to the execution of the warrant if:

  1. The officer has previously announced his identity and purpose as required by G.S. 15A-249 and reasonably believes either that admittance is being denied or unreasonably delayed or that the premises or vehicle is unoccupied; or
  2. The officer has probable cause to believe that the giving of notice would endanger the life or safety of any person.

History. 1973, c. 1286, s. 1.

Legal Periodicals.

For survey of 1978 law on criminal procedure, see 57 N.C.L. Rev. 1007 (1979).

CASE NOTES

Effect of Exigent Circumstances on Announcement Requirement. —

In a search and seizure case, where the exigent circumstances are adequate to justify the warrantless search of defendant’s house by officers under the plain view doctrine, they would also be sufficient to excuse the officers from the knock and announce requirement. State v. Prevette, 43 N.C. App. 450, 259 S.E.2d 595, 1979 N.C. App. LEXIS 3113 (1979), cert. denied, 299 N.C. 124, 261 S.E.2d 925, 1980 N.C. LEXIS 974 (1980), cert. denied, 447 U.S. 906, 100 S. Ct. 2988, 64 L. Ed. 2d 855, 1980 U.S. LEXIS 2343 (1980).

Announcement by Police Facing Exigent Circumstances. —

The fact that officers did announce their identity and purpose does not mean entry by force cannot be justified; there is nothing in the statute to forbid an announcement of police presence and purpose when officers also face exigent circumstances. State v. Lyons, 340 N.C. 646, 459 S.E.2d 770, 1995 N.C. LEXIS 391 (1995).

Search Conducted in Accordance with Section. —

The trial court had a reasonable basis for concluding that search was conducted in accordance with this section; where testimony from officer was that during time between announcement and opening of door, he heard the sounds of people running and faintly heard the word “police,” and where officer testified that he ordered the door opened “because evidence of this nature . . . is easily disposed of, and quick entry is safer for the officers,” as such evidence indicated circumstances under which the officers could have reasonably believed that they were being denied access and that evidence could be destroyed. State v. Marshall, 94 N.C. App. 20, 380 S.E.2d 360, 1989 N.C. App. LEXIS 445 (1989).

Entry by force justified where officers knocked and announced, waited a few seconds before again knocking and announcing, and waited 10-15 seconds before forcing entry after hearing no sound from the interior of the apartment, and where the officers knew the defendant was in the apartment. State v. Vick, 130 N.C. App. 207, 502 S.E.2d 871, 1998 N.C. App. LEXIS 907 (1998).

Based upon the fact that the police officers were executing a warrant to search for narcotics which could be easily disposed of, forcing entry after six to eight seconds did not violate defendant’s statutory and constitutional rights. State v. Reid, 151 N.C. App. 420, 566 S.E.2d 186, 2002 N.C. App. LEXIS 758 (2002).

Contraband was not obtained “as a result of” an improper entry where the search was conducted sometime after the forced entry and the contraband would have likely been located even in the absence of the forced entry. State v. White, 184 N.C. App. 519, 646 S.E.2d 609, 2007 N.C. App. LEXIS 1475 (2007).

Trial court did not err by denying the defendant’s motion to suppress because the defendant failed to show that the officers’ execution of the search warrant violated G.S. 15A-249 as the trial court’s findings established that the officers announced their presence in accordance with that statute’s knock-and-announce requirement and after waiting a reasonable time and hearing no response were authorized to break and enter into the residence. State v. Winchester, 260 N.C. App. 418, 818 S.E.2d 306, 2018 N.C. App. LEXIS 716 (2018).

Notice Held Sufficient. —

See State v. Trapper, 48 N.C. App. 481, 269 S.E.2d 680, 1980 N.C. App. LEXIS 3296 (1980), cert. denied, 451 U.S. 997, 101 S. Ct. 2338, 68 L. Ed. 2d 856, 1981 U.S. LEXIS 245 (1981).

Where method of entry renders search illegal, evidence obtained is not competent at defendants’ trial. State v. Mitchell, 22 N.C. App. 663, 207 S.E.2d 263, 1974 N.C. App. LEXIS 2409 (1974).

§ 15A-252. Service of a search warrant.

Before undertaking any search or seizure pursuant to the warrant, the officer must read the warrant and give a copy of the warrant application and affidavit to the person to be searched, or the person in apparent control of the premises or vehicle to be searched. If no one in apparent and responsible control is occupying the premises or vehicle, the officer must leave a copy of the warrant affixed to the premises or vehicle.

History. 1973, c. 1286, s. 1.

CASE NOTES

This section must be construed with reference to other provisions of Chapter 15A relating to search warrants, as where possible statutes dealing with the same subject matter must be harmonized to give effect to each. State v. Jones, 97 N.C. App. 189, 388 S.E.2d 213, 1990 N.C. App. LEXIS 77 (1990).

Precautionary Measures Prior to Service of Warrant Not Proscribed. —

To require officers to serve a warrant prior to taking the precautionary measures authorized by G.S. 15A-255 and G.S. 15A-256 would frustrate the purposes of the statutes; accordingly, this section does not prevent officers from locating, detaining, or frisking individuals on the premises prior to serving the warrant. State v. Jones, 97 N.C. App. 189, 388 S.E.2d 213, 1990 N.C. App. LEXIS 77 (1990).

As to compliance where actual reading of search warrant is rendered impossible because of active obstruction of officers, see State v. Rogers, 43 N.C. App. 475, 259 S.E.2d 572, 1979 N.C. App. LEXIS 3124 (1979).

Suppression of Evidence Not Required For Failure to Comply. —

Violation of this section did not require suppression of evidence, where officers who found cocaine in the defendant’s apartment merely left a copy of the search warrant in the apartment after the search, rather than giving defendant a copy of the warrant application and affidavit before the search, because the evidence was not obtained “as a result” of the officers’ failure to strictly comply with the language of this section. State v. Vick, 130 N.C. App. 207, 502 S.E.2d 871, 1998 N.C. App. LEXIS 907 (1998).

Investigator Did Not Comply With This Section. —

Trial court erred by denying defendant’s motion to dismiss the charge of resisting, delaying, or obstructing a public officer because the investigator testified that at the time he stopped defendant’s vehicle he did not have anything to show him saying that he had a search warrant and therefore the investigator did not comply with this section before searching defendant pursuant to the warrant. Because the investigator was not lawfully executing the warrant, defendant had a right to resist him. State v. Carter, 237 N.C. App. 274, 765 S.E.2d 56, 2014 N.C. App. LEXIS 1140 (2014).

§ 15A-253. Scope of the search; seizure of items not named in the warrant.

The scope of the search may be only such as is authorized by the warrant and is reasonably necessary to discover the items specified therein. Upon discovery of the items specified, the officer must take possession or custody of them. If in the course of the search the officer inadvertently discovers items not specified in the warrant which are subject to seizure under G.S. 15A-242, he may also take possession of the items so discovered.

History. 1973, c. 1286, s. 1.

Legal Periodicals.

For survey of 1977 law on criminal procedure, see 56 N.C.L. Rev. 983 (1978).

For survey of 1980 law on criminal procedure, see 59 N.C.L. Rev. 1140 (1981).

For article, “The Uninvited Guest: The Unexpected Damage to Privacy from the Expansion of Implied Licenses,” see 94 N.C.L. Rev. 1354 (2016).

CASE NOTES

Analysis

I.General Consideration

Section Codifies Federal Constitutional Requirements. —

Provisions of Chapter 15A, particularly G.S. 15A-242 and this section, are codifications of federal constitutional requirements. State v. Richards, 294 N.C. 474, 242 S.E.2d 844, 1978 N.C. LEXIS 1287 (1978).

Exercise of Judgment by Investigators. —

Investigators conducting a search will exercise some judgment and “discretion” in separating the innocuous from the incriminating. State v. Louchheim, 36 N.C. App. 271, 244 S.E.2d 195, 1978 N.C. App. LEXIS 2467 (1978), aff'd, 296 N.C. 314, 250 S.E.2d 630, 1979 N.C. LEXIS 1157 (1979).

Places Held to Be Within Defendant’s Premises. —

The search of defendant’s premises did not exceed the scope of the warrant by including a tool shed as well as the house itself. State v. Travatello, 24 N.C. App. 511, 211 S.E.2d 467, 1975 N.C. App. LEXIS 2415 (1975).

The trial court in a prosecution for possession of heroin did not err in allowing testimony with respect to a box and its contents found in the trunk of defendant’s automobile which was parked in defendant’s driveway, since a search warrant authorized a search of the premises of defendant. State v. Logan, 27 N.C. App. 150, 218 S.E.2d 213, 1975 N.C. App. LEXIS 1774 (1975).

Seizure of Weapons. —

In order to justify the seizure of a weapon as being incident to a lawful arrest it is not necessary that the weapon be on the person being arrested. State v. Richards, 294 N.C. 474, 242 S.E.2d 844, 1978 N.C. LEXIS 1287 (1978).

II.Plain View

Section Restricts “Plain View” Exception to U.S. Const., Amend. IV. —

Constitutionally permissible seizures under the “plain view” exception to U.S. Const., Amend. IV, protection against warrantless searches and seizures have been restricted under this section to those instances where the officer has legal justification to be at the place where he inadvertently sees a piece of evidence in plain view. The doctrine serves to supplement the prior justification. State v. Blackwelder, 34 N.C. App. 352, 238 S.E.2d 190, 1977 N.C. App. LEXIS 1696 (1977).

Under this section, the statutory “plain view” doctrine is limited to the inadvertent discovery of items pursuant to a legal search under a valid warrant though these items are not specified in the search warrant. State v. Blackwelder, 34 N.C. App. 352, 238 S.E.2d 190, 1977 N.C. App. LEXIS 1696 (1977).

When Items in Plain View May Be Seized. —

Where a lawful search pursuant to a search warrant is being conducted, items uncovered during the course of this search may be seized if the items would have been seizable under previously announced rationales for warrantless, plain view seizures (i.e., the items were the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime, or were items for which probable cause existed to believe that they were evidence of criminal activity and would aid in a particular apprehension or conviction), and the items are discovered “inadvertently.” State v. Richards, 294 N.C. 474, 242 S.E.2d 844, 1978 N.C. LEXIS 1287 (1978).

An item is lawfully seized even though it is not listed in the warrant if the officer is at a place where he has a legal right to be and if the item seized is in plain view. State v. Riddick, 291 N.C. 399, 230 S.E.2d 506, 1976 N.C. LEXIS 999 (1976).

While conducting a lawful search where officers found in plain view property identified as that reported missing, these items were lawfully seized. State v. Travatello, 24 N.C. App. 511, 211 S.E.2d 467, 1975 N.C. App. LEXIS 2415 (1975).

Plain view alone is not enough to justify warrantless seizure of evidence. State v. Blackwelder, 34 N.C. App. 352, 238 S.E.2d 190, 1977 N.C. App. LEXIS 1696 (1977).

Inadvertent Discovery. —

The North Carolina General Assembly has imposed an additional requirement, not mandated by the Constitution of the United States, that the evidence discovered in plain view must be discovered inadvertently. State v. Mickey, 347 N.C. 508, 495 S.E.2d 669, 1998 N.C. LEXIS 9, cert. denied, 525 U.S. 853, 119 S. Ct. 131, 142 L. Ed. 2d 106, 1998 U.S. LEXIS 5377 (1998).

Section requires inadvertence of discovery of items not specified in a search warrant. State v. Absher, 34 N.C. App. 197, 237 S.E.2d 749, 1977 N.C. App. LEXIS 1636, cert. denied, 293 N.C. 741, 241 S.E.2d 514, 1977 N.C. LEXIS 1027 (1977).

Meaning of the inadvertence requirement is that there must be no intent on the part of investigators to search for and seize the contested items not named in the warrant. State v. Richards, 294 N.C. 474, 242 S.E.2d 844, 1978 N.C. LEXIS 1287 (1978).

Mere suspicion of a thing’s existence is clearly not destructive of inadvertence. Knowledge, presumable such as would generate probable cause, is required and a positive intent to search. State v. Absher, 34 N.C. App. 197, 237 S.E.2d 749, 1977 N.C. App. LEXIS 1636, cert. denied, 293 N.C. 741, 241 S.E.2d 514, 1977 N.C. LEXIS 1027 (1977).

A padlock found under telephone book on bedside table, which was relevant to murder case, was lawfully seized from motel room pursuant to a warrant authorizing search for bloody clothing. State v. Williams, 315 N.C. 310, 338 S.E.2d 75, 1986 N.C. LEXIS 1870 (1986).

Seizure of Photographs Where Pornography Suspected. —

Where defendant was engaged in illegal drug activity, it was reasonable that the officers could conclude that the large quantity of the photographs, showing women in various stages of dress and undress, could have been connected to pornography, and were properly seized under the plain view doctrine. State v. Cummings, 113 N.C. App. 368, 438 S.E.2d 453, 1994 N.C. App. LEXIS 16 (1994).

§ 15A-254. List of items seized.

Upon seizing items pursuant to a search warrant, an officer must write and sign a receipt itemizing the items taken and containing the name of the court by which the warrant was issued. If the items were taken from a person, the receipt must be given to the person. If items are taken from a place or vehicle, the receipt must be given to the owner, or person in apparent control of the premises or vehicle if the person is present; or if he is not, the officer must leave the receipt in the premises or vehicle from which the items were taken.

History. 1973, c. 1286, s. 1.

CASE NOTES

Because evidence was not obtained “as a result of” a violation of this section, rendering G.S. 15A-974(a)(2) inapplicable, the appellate court did not need to determine whether the detective’s receipt in fact violated this section. State v. Downey, 249 N.C. App. 415, 791 S.E.2d 257, 2016 N.C. App. LEXIS 916 (2016).

§ 15A-255. Frisk of persons present in premises or vehicle to be searched.

An officer executing a warrant directing a search of premises or of a vehicle may, if the officer reasonably believes that his safety or the safety of others then present so requires, search for any dangerous weapons by an external patting of the clothing of those present. If in the course of such a frisk he feels an object which he reasonably believes to be a dangerous weapon, he may take possession of the object.

History. 1973, c. 1286, s. 1.

Legal Periodicals.

For survey of 1978 law on criminal procedure, see 57 N.C.L. Rev. 1007 (1979).

CASE NOTES

Frisk of Lounge Patron. —

Frisk procedure engaged in by alcohol law-enforcement agents and deputy sheriffs in the course of the search of a lounge pursuant to a valid search warrant did not violate the constitutional rights of patron of the lounge. State v. Davis, 94 N.C. App. 358, 380 S.E.2d 378, 1989 N.C. App. LEXIS 461 (1989).

Search Of Defendant Justified. —

Trial court did not err in denying defendant’s motion to suppress because the facts were sufficient to justify a search of defendant’s pants pocket and seizure of marijuana since an investigator reasonably believed that the safety of police officers justified the pat-down of defendant; the investigator, with other officers, conducted the search of a residence, found six individuals, including defendant, secured each individual pursuant to G.S. 15A-256, and discovered drugs in plain view. State v. Richmond, 215 N.C. App. 475, 715 S.E.2d 581, 2011 N.C. App. LEXIS 1883 (2011).

§ 15A-256. Detention and search of persons present in private premises or vehicle to be searched.

An officer executing a warrant directing a search of premises not generally open to the public or of a vehicle other than a common carrier may detain any person present for such time as is reasonably necessary to execute the warrant. If the search of such premises or vehicle and of any persons designated as objects of the search in the warrant fails to produce the items named in the warrant, the officer may then search any person present at the time of the officer’s entry to the extent reasonably necessary to find property particularly described in the warrant which may be concealed upon the person, but no property of a different type from that particularly described in the warrant may be seized or may be the basis for prosecution of any person so searched. For the purpose of this section, all controlled substances are the same type of property.

History. 1973, c. 1286, s. 1.

Legal Periodicals.

For survey of 1978 law on criminal procedure, see 57 N.C.L. Rev. 1007 (1979).

For note dealing with warrant to search premises as authorizing search and detention of occupants of premises, see 4 Campbell L. Rev. 191 (1981).

For survey of 1981 law on criminal procedure, see 60 N.C.L. Rev. 1302 (1982).

CASE NOTES

Section Complies with Requirements of U.S. Const., Amend. IV. —

Probable cause “particularized” to those present on the premises being searched, as required by U.S. Const., Amend. IV, can be clearly inferred from the circumstances under which the limited search pursuant to this section is authorized: Police officers have reason to believe that criminal activity has been or is occurring on the premises, the search pursuant to the warrant fails to uncover any evidence of such activity, and such evidence of the criminal activity could be concealed upon the person of those present at the time of the officer’s entry. State v. Brooks, 51 N.C. App. 90, 275 S.E.2d 202, 1981 N.C. App. LEXIS 2182, cert. denied, 302 N.C. 630, 280 S.E.2d 441, 1981 N.C. LEXIS 1250 (1981).

The limited searches authorized by this section do not violate U.S. Const., Amend. IV. State v. Watlington, 30 N.C. App. 101, 226 S.E.2d 186, 1976 N.C. App. LEXIS 2156, cert. denied, 290 N.C. 666, 228 S.E.2d 457, 1976 N.C. LEXIS 1163 (1976).

All Buildings Within Curtilage Included in “Premises.” —

So long as probable cause exists to search buildings within curtilage, then those buildings must be included within the term “premises” under this section, especially where the warrant explicitly authorizes the search of the outbuildings. State v. Cutshall, 136 N.C. App. 756, 526 S.E.2d 187, 2000 N.C. App. LEXIS 141 (2000).

Search of Persons Present for Concealed Contraband Is Reasonable. —

Where police officers have a warrant authorizing the search of a vehicle or premises, it is reasonable to permit a search of persons found in the vehicle or on the premises, within the restrictions of this section, to prevent those persons from concealing the contraband subject matter described in the search warrant. State v. Watlington, 30 N.C. App. 101, 226 S.E.2d 186, 1976 N.C. App. LEXIS 2156, cert. denied, 290 N.C. 666, 228 S.E.2d 457, 1976 N.C. LEXIS 1163 (1976).

Trial court did not err in denying defendant’s motion to suppress because the facts were sufficient to justify a search of defendant’s pants pocket and seizure of marijuana since an investigator reasonably believed that the safety of police officers justified the pat-down of defendant; the investigator, with other officers, conducted the search of a residence, found six individuals, including defendant, secured each individual pursuant to G.S. 15A-256, and discovered drugs in plain view. State v. Richmond, 215 N.C. App. 475, 715 S.E.2d 581, 2011 N.C. App. LEXIS 1883 (2011).

Defendant, who arrived on the premises while officers were executing warrant, was subject to detention under this section. State v. Patrick, 88 N.C. App. 582, 364 S.E.2d 450, 1988 N.C. App. LEXIS 113 (1988).

Detention Proper. —

Detention and questioning of defendant during the execution of a search warrant was permissible, as the questioning did not extend the detention. State v. Garcia, 216 N.C. App. 176, 715 S.E.2d 915, 2011 N.C. App. LEXIS 2143 (2011).

Seizure Upheld. —

Where officers were lawfully on the premises pursuant to a valid search warrant, and were authorized under this section to initially detain defendant in house, their discovery of a packet of cocaine which fell out of defendant’s clothing was the result of their lawful detention and the seizure of that packet was authorized under the “plain view” doctrine. Moreover, once this packet had been discovered, the officers had probable cause to arrest defendant without benefit of a warrant under G.S. 15A-401(b), and thus, second packet of cocaine found as a result of a search incident to defendant’s arrest was properly seized and admissible at trial. State v. Patrick, 88 N.C. App. 582, 364 S.E.2d 450, 1988 N.C. App. LEXIS 113 (1988).

Seizure Illegal. —

In the absence of probable cause or other warrant exception, the trial court should have suppressed evidence officers seized during search of defendant’s person, because the officers’ search yielded crack cocaine, the exact object of the investigation, and after the officers discovered cocaine in the outbuilding, their statutory authority to search the non-resident defendant ceased to exist. State v. Cutshall, 136 N.C. App. 756, 526 S.E.2d 187, 2000 N.C. App. LEXIS 141 (2000).

§ 15A-257. Return of the executed warrant.

An officer who has executed a search warrant must, without unnecessary delay, return to the clerk of the issuing court the warrant together with a written inventory of items seized. The inventory, if any, and return must be signed and sworn to by the officer who executed the warrant.

History. 1973, c. 1286, s. 1.

CASE NOTES

Primary purpose of the requirement that the return be sworn to by the officer who executed the warrant is to better insure the accuracy of the inventory of the property seized. This requirement has little, if anything, to do with protecting persons from unreasonable searches and seizures since the search and seizure already will have taken place. State v. Dobbins, 306 N.C. 342, 293 S.E.2d 162, 1982 N.C. LEXIS 1449 (1982).

Statute does not state particular time for return of the inventory, and a delay of three and one-half days between execution and return of the inventory of items seized was not an undue delay in violation of this section. State v. Hyleman, 89 N.C. App. 424, 366 S.E.2d 530, 1988 N.C. App. LEXIS 155 (1988), rev'd, 324 N.C. 506, 379 S.E.2d 830, 1989 N.C. LEXIS 302 (1989).

§ 15A-258. Disposition of seized property.

Property seized shall be held in the custody of the person who applied for the warrant, or of the officer who executed it, or of the agency or department by which the officer is employed, or of any other law-enforcement agency or person for purposes of evaluation or analysis, upon condition that upon order of the court the items may be retained by the court or delivered to another court.

History. 1973, c. 1286, s. 1.

CASE NOTES

Release of Currency to Federal Drug Enforcement Administration. —

This section does not require that a court order be obtained prior to any release of seized property, and it expressly authorizes property to be held by any law-enforcement agency; therefore, the release of currency to Federal Drug Enforcement Administration did not violate this section. State v. Jones, 97 N.C. App. 189, 388 S.E.2d 213, 1990 N.C. App. LEXIS 77 (1990).

OPINIONS OF ATTORNEY GENERAL

Necessity of Court Order. — In the absence of a pre-existing valid court order directing that property seized pursuant to a search warrant or other lawful authority be retained by the court or delivered to another court, a law-enforcement agency in possession of the property is not required to obtain a court order prior to releasing it. See opinion of Attorney General to Secretary Janice H. Faulkner, — N.C.A.G. — (July 19, 1994).

§ 15A-259. Application of Article to all warrants; exception as to inspection warrants and special riot situations.

The requirements of this Article apply to search warrants issued for any purpose, except that the contents of and procedure relating to inspection warrants are to be governed by the provisions of Article 4A of Chapter 15 and warrants to inspect vehicles in riot areas or approaching municipalities during emergencies are subject to the special procedures set out in G.S. 14-288.11. Nothing in this Article is intended to alter or affect the emergency search doctrine.

History. 1957, c. 496; 1969, c. 869, s. 8; 1971, c. 872, s. 4; 1973, c. 1286, s. 1.

CASE NOTES

Requirements of this Article apply only to searches made under warrants. State v. Prevette, 43 N.C. App. 450, 259 S.E.2d 595, 1979 N.C. App. LEXIS 3113 (1979), cert. denied, 299 N.C. 124, 261 S.E.2d 925, 1980 N.C. LEXIS 974 (1980), cert. denied, 447 U.S. 906, 100 S. Ct. 2988, 64 L. Ed. 2d 855, 1980 U.S. LEXIS 2343 (1980).

Article 12. Pen Registers; Trap and Trace Devices.

§ 15A-260. Definitions.

As used in this Article:

  1. “Electronic communication,” “electronic communication service,” and “wire communication” shall have the meaning as set forth in Section 2510 of Title 18 of the United States Code;
  2. “Pen register” means a device which records or decodes electronic or other impulses which identify numbers dialed or otherwise transmitted on the telephone line to which such device is attached, but the term does not include any device used by a provider or customer of a wire or electronic service for billing, or recording as an incident to billing, for communication services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business, nor shall the term include any device which allows the listening or recording of communications transmitted on the telephone line to which the device is attached;
  3. “Trap and trace device” means a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.

History. 1987 (Reg. Sess., 1988), c. 1104, s. 1.

§ 15A-261. Prohibition and exceptions.

  1. In General. —  Except as provided in subsection (b) of this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order as provided in this Article.
  2. Exception. —  The prohibition of subsection (a) of this section does not apply to the use of a pen register or a trap and trace device by a provider of wire or electronic communication service:
    1. Relating to the operation, maintenance, or testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service; or
    2. To record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or
    3. With the consent of the user of that service.
  3. Penalty. —  A person who willfully and knowingly violates subsection (a) of this section is guilty of a Class 1 misdemeanor.

History. 1987 (Reg. Sess., 1988), c. 1104, s. 1; 1993, c. 539, s. 297; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Motion to Suppress Properly Denied. —

It was no error not to suppress records of the location of defendant’s cell phone because, inter alia, the records were historical stored third-party records properly disclosed under a court order, pursuant to 18 U.S.C.S. § 2703(d). State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528, 2015 N.C. App. LEXIS 769 (2015).

It was no error not to suppress records of the location of defendant’s cell phone because, inter alia, retrieval of the information was not a “search” requiring a warrant under the Fourth Amendment or N.C. Const. art. I, § 20, as no physical trespass occurred, defendant showed no GPS or “real-time” tracking, and defendant voluntarily conveyed the information to a provider, so defendant showed no reasonable expectation of privacy. State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528, 2015 N.C. App. LEXIS 769 (2015).

It was no error not to suppress records of the location of defendant’s cell phone because, inter alia, the good-faith exception to the warrant requirement applied, as an officer relied on procedures in the Stored Communications Act, 18 U.S.C.S. § 2703(d), to obtain the information. State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528, 2015 N.C. App. LEXIS 769 (2015).

§ 15A-262. Application for order for pen register or trap and trace device.

  1. Application. —  A law enforcement officer may make an application for an order or an extension of an order under G.S. 15A-263 authorizing or approving the installation and use of a pen register or a trap and trace device, in writing under oath or affirmation, to a superior court judge.
  2. Contents of Application. —  An application under subsection (a) of this section shall include:
    1. The identity of the law enforcement officer making the application and the identity of the law enforcement agency conducting the investigation; and
    2. A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.

History. 1987 (Reg. Sess., 1988), c. 1104, s. 1.

CASE NOTES

Motion to Suppress Properly Denied. —

It was no error not to suppress records of the location of defendant’s cell phone because, inter alia, the records were historical stored third-party records properly disclosed under a court order, pursuant to 18 U.S.C.S. § 2703(d). State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528, 2015 N.C. App. LEXIS 769 (2015).

It was no error not to suppress records of the location of defendant’s cell phone because, inter alia, retrieval of the information was not a “search” requiring a warrant under the Fourth Amendment or N.C. Const. art. I, § 20, as no physical trespass occurred, defendant showed no GPS or “real-time” tracking, and defendant voluntarily conveyed the information to a provider, so defendant showed no reasonable expectation of privacy. State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528, 2015 N.C. App. LEXIS 769 (2015).

It was no error not to suppress records of the location of defendant’s cell phone because, inter alia, the good-faith exception to the warrant requirement applied, as an officer relied on procedures in the Stored Communications Act, 18 U.S.C.S. § 2703(d), to obtain the information. State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528, 2015 N.C. App. LEXIS 769 (2015).

Trial court did not err in denying defendant’s motion to suppress because the application to obtain defendant’s cell-site location information contained all the information necessary from which the trial court could have issued a warrant supported by probable cause, and in fact, the trial court in its order specifically found that probable cause existed to obtain this information. State v. Gore, 272 N.C. App. 98, 846 S.E.2d 295, 2020 N.C. App. LEXIS 470 (2020).

§ 15A-263. Issuance of order for pen register or trap and trace device.

  1. In General. —  Following application made under G.S. 15A-262, a superior court judge may enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the State if the judge finds:
    1. That there is reasonable suspicion to believe that a felony offense, or a Class A1 or Class 1 misdemeanor offense has been committed;
    2. That there are reasonable grounds to suspect that the person named or described in the affidavit committed the offense, if that person is known and can be named or described; and
    3. That the results of procedures involving pen registers or trap and trace devices will be of material aid in determining whether the person named in the affidavit committed the offense.
  2. Contents of Order. —  An order issued under this section:
    1. Shall specify:
      1. The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached;
      2. The identity, if known, of the person who is the subject of the criminal investigation;
      3. The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order; and
      4. The offense to which the information likely to be obtained by the pen register or trap and trace device relates; and
    2. Shall direct, upon request of the applicant, the furnishing of information, facilities, or technical assistance necessary to accomplish the installation of the pen register or trap and trace device under G.S. 15A-264.
  3. Time Period and Extension.
    1. An order issued under this section shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed 60 days.
    2. An extension of an order issued under this section may be granted, but only upon an application for an order under G.S. 15A-262 and upon the judicial finding required by subsection (a) of this section. The period of extension shall not exceed 60 days.
  4. Nondisclosure of Existence of Pen Register or a Trap and Trace Device. —  An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:
    1. The order be sealed until otherwise ordered by the judge; and
    2. The person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the judge to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any person, unless otherwise ordered by the judge.

The provisions of G.S. 15A-903 and 15A-904 shall apply to this Article.

History. 1987 (Reg. Sess., 1988), c. 1104, s. 1; 1997-80, s. 13.

CASE NOTES

Motion to Suppress Properly Denied. —

It was no error not to suppress records of the location of defendant’s cell phone because, inter alia, the records were historical stored third-party records properly disclosed under a court order, pursuant to 18 U.S.C.S. § 2703(d). State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528, 2015 N.C. App. LEXIS 769 (2015).

It was no error not to suppress records of the location of defendant’s cell phone because, inter alia, retrieval of the information was not a “search” requiring a warrant under the Fourth Amendment or N.C. Const. art. I, § 20, as no physical trespass occurred, defendant showed no GPS or “real-time” tracking, and defendant voluntarily conveyed the information to a provider, so defendant showed no reasonable expectation of privacy. State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528, 2015 N.C. App. LEXIS 769 (2015).

It was no error not to suppress records of the location of defendant’s cell phone because, inter alia, the good-faith exception to the warrant requirement applied, as an officer relied on procedures in the Stored Communications Act, 18 U.S.C.S. § 2703(d), to obtain the information. State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528, 2015 N.C. App. LEXIS 769 (2015).

Trial court did not err in denying defendant’s motion to suppress because the application to obtain defendant’s cell-site location information contained all the information necessary from which the trial court could have issued a warrant supported by probable cause, and in fact, the trial court in its order specifically found that probable cause existed to obtain this information. State v. Gore, 272 N.C. App. 98, 846 S.E.2d 295, 2020 N.C. App. LEXIS 470 (2020).

Issuance of Order Proper. —

Trial court, which denied defendant’s motion to suppress, correctly determined that issuance of a pen register and trap and trace order was proper under G.S. 15A-263. Under the totality of the circumstances, the trial court had the necessary specific and articulable facts to show reasonable grounds to believe the records sought from the pen register order were relevant and material to an ongoing investigation. State v. Forte, 257 N.C. App. 505, 810 S.E.2d 339, 2018 N.C. App. LEXIS 51, cert. denied, 371 N.C. 339, 813 S.E.2d 858, 2018 N.C. LEXIS 466 (2018).

§ 15A-264. Assistance in installation and use of a pen register or a trap and trace device.

  1. Pen Registers. —  Upon the request of a law enforcement officer authorized to install and use a pen register under this Article, a provider of wire or electronic communication service, a landlord, a custodian, or other person shall furnish the officer promptly with all information, facilities, or technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the communication services, if the assistance is directed by a court order as provided in G.S. 15A-263(b)(2).
  2. Trap and Trace Devices. —  Upon the request of a law enforcement officer authorized to receive the results of a trap and trace device under this Article, a provider of a wire or electronic communication service, a landlord, a custodian, or other person shall install the device immediately on the appropriate line and shall furnish the officer all additional information, facilities, or technical assistance, including installation and operation of the device unobtrusively and with a minimum of interference with the communication services, if the installation and assistance are directed by court order as provided in G.S. 15A-263(b)(2). Unless otherwise ordered by the judge, the results of the trap and trace device shall be furnished to the law enforcement officer designated in the court order at reasonable intervals during regular business hours for the duration of the order.
  3. Compensation. —  A provider of a wire or electronic communication service, a landlord, a custodian, or other person who furnishes facilities or technical assistance pursuant to this section shall be compensated for the reasonable expenses incurred in providing the facilities and assistance.
  4. No Cause of Action Against a Provider Giving Information or Assistance Under this Article. —  No cause of action shall be allowed in any court against any provider of a wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order under this Article.
  5. Defense. —  A good faith reliance on a court order or a statutory authorization is a complete defense against any civil or criminal action brought under this Article or any other law.

History. 1987 (Reg. Sess., 1988), c. 1104, s. 1.

§ 15A-265.

Reserved for future codification purposes.

Article 13. DNA Database and Databank.

§ 15A-266. Short title.

This Article may be cited as the DNA Database and Databank Act of 1993.

History. 1993, c. 401, s. 1.

Editor’s Note.

Session Laws 1993, c. 401, s. 2 makes this Article effective December 1, 1993, only if the General Assembly appropriates funds to implement the purposes of the act. Funds have been appropriated.

Legal Periodicals.

For comment, “DNA Databases: The Case for the Combined DNA Index System,” see 29 Wake Forest L. Rev. 889 (1994).

For article, “DNA Databanks: Law Enforcement’s Greatest Surveillance Tools?,” see 34 Wake Forest L. Rev. 767 (1999).

For article, “Genetic Testing, Genetic Medicine, And Managed Care,” see 34 Wake Forest L. Rev. 849 (1999).

For article, “The Use of Genetic Testing in the Courtroom,” see 34 Wake Forest L. Rev. 889 (1999).

For article, “North Carolina’s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010,” see 89 N.C.L. Rev. 1309 (2011).

For note, “‘Hair’ Today, Gone Tomorrow: How Immutable Traits May Become the New Face of Discrimination as Interpreted in Equal Employment Opportunity Comm’n v. Catastrophe Mgmt. Sols.,” see 39 N.C. Cent. L. Rev. 166 (2017).

§ 15A-266.1. Policy.

It is the policy of the State to assist federal, State, and local criminal justice and law enforcement agencies in the identification, detection, or exclusion of individuals who are subjects of the investigation or prosecution of felonies or violent crimes against the person. Identification, detection, and exclusion are facilitated by the analysis of biological evidence that is often left by the perpetrator or is recovered from the crime scene. The analysis of biological evidence can also be used to identify missing persons and victims of mass disasters.

History. 1993, c. 401, s. 1; 2003-376, s. 1; 2009-203, s. 1.

Effect of Amendments.

Session Laws 2009-203, s. 1, effective December 1, 2009, substituted “are facilitated” for “is facilitated” in the second sentence.

CASE NOTES

Drawing Blood for DNA Testing Constitutional. —

Drawing of blood from prison inmates for deoxyribonucleic acid (DNA) sampling did not violate the fourth amendment’s prohibition of unreasonable search and seizure. Sanders v. Coman, 864 F. Supp. 496, 1994 U.S. Dist. LEXIS 14881 (E.D.N.C. 1994).

Force Used to Obtain DNA Samples Was Not Excessive. —

Ensuring compliance with a lawful order, such as the deoxyribonucleic acid (DNA) sampling procedure, was a matter of institutional security and discipline; therefore, the actual force used did not constitute cruel and unusual punishment simply because it caused pain to the inmates involved. There were no facts or allegations that the force being used to obtain DNA samples from inmates was being applied with the intention of harming the inmates. Sanders v. Coman, 864 F. Supp. 496, 1994 U.S. Dist. LEXIS 14881 (E.D.N.C. 1994).

§ 15A-266.2. Definitions.

As used in this Article, unless another meaning is specified or the context clearly requires otherwise, the following terms have the meanings specified:

  1. “Arrestee” means any person arrested for an offense in G.S. 15A-266.3A(f) or (g).
  2. “CODIS” means the FBI’s national DNA identification index system that allows the storage and exchange of DNA records submitted by federal, State and local forensic DNA laboratories. The term “CODIS” is derived from Combined DNA Index System (NDIS) administered and operated by the Federal Bureau of Investigation.
  3. “Conviction” includes a conviction by a jury or a court, a guilty plea, a plea of nolo contendere, or a finding of not guilty by reason of insanity or mental disease or defect.
  4. “Crime Laboratory” [means] the North Carolina State Crime Laboratory of the Department of Justice.
  5. “Criminal Justice Agency” means an agency or institution of a federal, State, or local government, other than the office of the public defender, that performs as part of its principal function, activities relating to the apprehension, investigation, prosecution, adjudication, incarceration, supervision, or rehabilitation of criminal offenders.
  6. “Custodial Agency” means the governmental entity in possession of evidence collected as part of a criminal investigation or prosecution.
  7. “DNA” means deoxyribonucleic acid. DNA is located in the cells and provides an individual’s personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification.
  8. “DNA Record” means DNA identification information stored in the State DNA Database or CODIS for the purpose of generating investigative leads or supporting statistical interpretation of DNA test results. The DNA record is the result obtained from the DNA analysis. The DNA record is comprised of the characteristics of a DNA sample which are of value in establishing the identity of individuals. The results of all DNA identification analyses on an individual’s DNA sample are also collectively referred to as the DNA profile of an individual.
  9. “DNA Sample” means blood, cheek swabs, or any biological sample containing cells provided by any person with respect to offenses covered by this Article or submitted to the State Crime Laboratory pursuant to this Article for analysis pursuant to a criminal investigation or storage or both.
  10. “FBI” means the Federal Bureau of Investigation.
  11. “NDIS” means the National DNA Index System that is the national DNA database system of DNA records that meet federal quality assurance and privacy standards.
  12. Repealed by Session Laws 2013-360, s. 17.6(i), effective July 1, 2013.
  13. “State DNA Databank” means the repository of DNA samples collected under the provisions of this Article.
  14. “State DNA Database” means the Crime Laboratory’s DNA identification record system to support law enforcement. It is administered by the Crime Laboratory and provides DNA records to the FBI for storage and maintenance in CODIS. The Crime Laboratory’s DNA Database system is the collective capability provided by computer software and procedures administered by the Crime Laboratory to store and maintain DNA records related to: forensic casework; convicted offenders and arrestees required to provide a DNA sample under this Article; persons required to register as sex offenders under G.S. 14-208.7; unidentified persons or body parts; missing persons; relatives of missing persons; and anonymous DNA profiles used for forensic validation, forensic protocol development, or quality control purposes or establishment of a population statistics database for use by criminal justice agencies.

History. 1993, c. 401, s. 1; 2009-203, s. 2; 2010-94, s. 2; 2011-19, s. 5; 2013-360, s. 17.6(i); 2014-100, s. 17.1(cc).

Editor’s Note.

The definitions in this section were redesignated at the direction of the Revisor of Statutes to preserve alphabetical order.

The quotation marks around “Crime Laboratory” and the bracketed word “[means]” were inserted in subdivision (1c) at the direction of the Revisor of Statutes.

Session Laws 2004-124, s. 15.2(a), provides: “Of the funds appropriated to the Department of Justice in this act, the sum of two hundred fifty thousand dollars ($250,000) shall be used to contract with private entities to reduce the backlog of rape kits in storage in local law enforcement agencies as of July 1, 2004. The Department shall contract with private entities to analyze bodily fluids, DNA evidence, as ‘DNA’ is defined in G.S. 15A-266.2, or both, from rape kits that are evidence in cases in which a suspect has not been identified. In addition to the funds appropriated, the Department shall maximize the use of federal grant funds to expedite the elimination of the backlog.”

Former subdivisions (1) and (1a), were redesignated as subdivisions (1a) and (1d), respectively. Subdivisions (9)-(11) as added by Session Laws 2010-94, s. 2, were redesignated as subdivisions (1c), (1) and (1b), respectively.

Session Laws 2011-19, s. 1, provides: “This act shall be known as ‘The Forensic Sciences Act of 2011.’ ”

Session Laws 2011-19, s. 3, provides: “The State Bureau of Investigation (SBI) shall encourage and seek collaborative opportunities and grant funds for research programs, in association, whenever possible, with the university system or independent nationally recognized forensic institutions, on human observer bias and sources of human error in forensic examinations. Such programs might include studies to determine the effects of contextual bias in forensic practice (e.g., studies to determine whether and to what extent the results of forensic analysis are influenced by knowledge regarding the background of the suspect and the investigator’s theory of the case). In addition, research on sources of human error should be closely linked with research conducted to quantify and characterize the amount of error. Based on the results of these studies, and in consultation with the North Carolina Forensic Sciences Advisory Board, the North Carolina State Crime Laboratory should develop standard operating procedures (that will lay the foundation for model protocols) to minimize, to the extent possible, potential bias and sources of human error in forensic science. These standard operating procedures should apply to all forensic analyses that may be used in litigation.”

Session Laws 2011-19, s. 4, as amended by Session Laws 2011-307, s. 8, and as amended by Session Laws 2012-168, s. 6.1, provides: “Forensic Scientists I, II, and III, forensic science supervisors, and forensic scientist managers at the State Crime Laboratory shall be required to obtain individual certification consistent with international and ISO standards as soon as practicable, but no later than June 1, 2012, within 18 months of the date the scientist becomes eligible to seek certification according to the standards of the certifying entity or by January 1, 2013, or as soon as practicable after that date unless no certification is available. All such forensic scientists shall have access to the certification process.”

Session Laws 2011-19, s. 5, provides: “The Revisor of Statutes shall replace the name of the State Bureau of Investigation Laboratory, or any other name which is identified with the State Bureau of Investigation Laboratory, with the name ‘North Carolina State Crime Laboratory’ wherever first used in a statute or session law and with ‘State Crime Laboratory’ at each subsequent location in the statute or session law.”

Subdivision (1c) was added by Session Laws 2013-360, s. 17.6(i), as subdivision (1e). It was redesignated as (1c), and former subdivisions (1c) and (1d) were redesignated as subdivisions (1d) and (1e), respectively, to preserve alphabetical order at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2009-203, s. 2, effective December 1, 2009, added subdivisions (1a) and (5a), and substituted “a blood, buccal, or any other sample” for “a blood sample” in subdivision (4).

Session Laws 2010-94, s. 2, effective February 1, 2011, rewrote the section, in part by the addition of subdivisions (9) through (11).

Session Laws 2013-360, s. 17.6(i), effective July 1, 2013, added subdivision (1c); deleted subdivision (6), which defined “SBI” as the State Bureau of Investigation; and substituted “Crime Laboratory’s” for “SBI’s” or similar language throughout subdivision (8).

Session Laws 2014-100, s. 17.1(cc), effective July 1, 2014, substituted “State Crime Laboratory” for “State Bureau of Investigation” in subdivision (4).

Legal Periodicals.

For comment, “DNA Databases: The Case for the Combined DNA Index System,” see 29 Wake Forest L. Rev. 889 (1994).

For comment, “Sacrificing Liberty for Security: North Carolina’s Unconstitutional Search and Seizure of Arrestee DNA,” see 34 Campbell L. Rev. 473 (2012).

§ 15A-266.3. Establishment of State DNA database and databank.

There is established under the administration of the Crime Laboratory, the State DNA Database and State DNA Databank. The Crime Laboratory shall provide DNA records to the FBI for the searching of DNA records nationwide and storage and maintenance by CODIS. The State DNA Databank shall serve as the repository for DNA samples obtained pursuant to this Article. The State DNA Database shall be compatible with the procedures specified by the FBI, including use of comparable test procedures, laboratory and computer equipment, supplies and computer platform and software. The State DNA Database shall have the capability provided by computer software and procedures administered by the Crime Laboratory to store and maintain DNA records related to all of the following:

  1. Crime scene evidence and forensic casework.
  2. Arrestees, offenders, and persons found not guilty by reason of insanity, who are required to provide a DNA sample under this Article.
  3. Persons required to register as sex offenders under G.S. 14-208.7.
  4. Unidentified persons or body parts.
  5. Missing persons.
  6. Relatives of missing persons.
  7. Anonymous DNA profiles used for forensic validation, forensic protocol development, or quality control purposes or establishment of a population statistics database, for use by criminal justice agencies.

History. 1993, c. 401, s. 1; 2010-94, s. 3; 2013-360, s. 17.6(f).

Effect of Amendments.

Session Laws 2010-94, s. 3, effective February 1, 2011, rewrote the section catchline, which formerly read: “Procedural compatibility with the FBI”; and rewrote the section, which formerly read: “The DNA identification system as established by the SBI shall be compatible with the procedure specified by the FBI, including use of comparable test procedures, laboratory equipment, supplies, and computer software.”

Session Laws 2013-360, s. 17.6(f), effective July 1, 2013, substituted “Crime Laboratory” for “SBI” throughout the section.

Legal Periodicals.

For article, “DNA Databanks: Law Enforcement’s Greatest Surveillance Tools?,” see 34 Wake Forest L. Rev. 767 (1999).

For comment, “Sacrificing Liberty for Security: North Carolina’s Unconstitutional Search and Seizure of Arrestee DNA,” see 34 Campbell L. Rev. 473 (2012).

§ 15A-266.3A. DNA sample required for DNA analysis upon arrest for certain offenses.

  1. Unless a DNA sample has previously been obtained by lawful process and the DNA record stored in the State DNA Database, and that record and sample has not been expunged pursuant to any provision of law, a DNA sample for DNA analysis and testing shall be obtained from any person who is arrested for committing an offense described in subsection (f) or (g) of this section.
  2. The arresting law enforcement officer shall obtain, or cause to be obtained, a DNA sample from an arrested person at the time of arrest, or when fingerprinted. However, if the person is arrested without a warrant, then the DNA sample shall not be taken until a probable cause determination has been made pursuant to G.S. 15A-511(c)(1). The DNA sample shall be by cheek swab unless a court order authorizes that a DNA blood sample be obtained. If a DNA blood sample is taken, it shall comply with the requirements of G.S. 15A-266.6(b). The arresting law enforcement officer shall forward, or cause to be forwarded, the DNA sample to the appropriate laboratory for DNA analysis and testing.
  3. At the time a DNA sample is taken pursuant to this section, the person obtaining the DNA sample shall record, on a form promulgated by the Crime Laboratory, the date and time the sample was taken, the name of the person taking the DNA sample, the name and address of the person from whom the sample was taken, and the offense or offenses for which the person was arrested. This record shall be maintained in the case file and shall be available to the prosecuting district attorney for the purpose of completing the requirements of subsection (j) of this section.
  4. After taking a DNA sample from an arrested person required to provide a DNA sample pursuant to this section, the person taking the DNA sample shall provide the arrested person with a written notice of the procedures for seeking an expunction of the DNA sample pursuant to subsections (h), (i), (j), (k), and (l) of this section. The Department of Justice shall provide the written notice required by this subsection.
  5. The DNA record of identification characteristics resulting from the DNA testing and the DNA sample itself shall be stored and maintained by the Crime Laboratory in the State DNA Databank pursuant to this Article.
  6. This section applies to a person arrested for violating any one of the following offenses in Chapter 14 of the General Statutes:
    1. G.S. 14-16.6(b), Assault with a deadly weapon on executive, legislative, or court officer; and G.S. 14-16.6(c), Assault inflicting serious bodily injury on executive, legislative, or court officer.
    2. G.S. 14-17, First and Second Degree Murder.
    3. G.S. 14-18, Manslaughter.
    4. Any felony offense in Article 6A, Unborn Victims.
    5. Any offense in Article 7B, Rape and Other Sex Offenses.
    6. G.S. 14-28, Malicious castration; G.S. 14-29, Castration or other maiming without malice aforethought; G.S. 14-30, Malicious maiming; G.S. 14-30.1, Malicious throwing of corrosive acid or alkali; G.S. 14-31, Maliciously assaulting in a secret manner; G.S. 14-32, Felonious assault with deadly weapon with intent to kill or inflicting serious injury; G.S. 14-32.1(e), Aggravated assault or assault and battery on an individual with a disability; G.S. 14-32.2(a) when punishable pursuant to G.S. 14-32.2(b)(1), Patient abuse and neglect, intentional conduct proximately causes death; G.S. 14-32.3(a), Domestic abuse of disabled or elder adults resulting in injury; G.S. 14-32.4, Assault inflicting serious bodily injury or injury by strangulation; G.S. 14-33.2, Habitual misdemeanor assault; G.S. 14-34.1, Discharging certain barreled weapons or a firearm into occupied property; G.S. 14-34.2, Assault with a firearm or other deadly weapon upon governmental officers or employees, company police officers, or campus police officers; G.S. 14-34.4, Adulterated or misbranded food, drugs, etc.; intent to cause serious injury or death; intent to extort; G.S. 14-34.5, Assault with a firearm on a law enforcement, probation, or parole officer or on a person employed at a State or local detention facility; G.S. 14-34.6, Assault or affray on a firefighter, an emergency medical technician, medical responder, emergency department nurse, or emergency department physician; G.S. 14-34.7, Assault inflicting serious injury on a law enforcement, probation, or parole officer or on a person employed at a State or local detention facility; G.S. 14-34.9, Discharging a firearm from within an enclosure; and G.S. 14-34.10, Discharge firearm within enclosure to incite fear.
    7. Any offense in Article 10, Kidnapping and Abduction, or Article 10A, Human Trafficking.
    8. Any offense in Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material.
    9. G.S. 14-51, First and second degree burglary; G.S. 14-53, Breaking out of dwelling house burglary; G.S. 14-54(a1), Breaking or entering buildings with intent to terrorize or injure; G.S. 14-54.1, Breaking or entering a place of religious worship; and G.S. 14-57, Burglary with explosives.
    10. Any offense in Article 15, Arson.
    11. G.S. 14-87, Armed robbery; Common law robbery punishable pursuant to G.S. 14-87.1; and G.S. 14-88, Train robbery.
    12. G.S. 14-163.1(a1), Assaulting a law enforcement agency animal, an assistance animal, or a search and rescue animal willfully killing the animal.
    13. Any offense which would require the person to register under the provisions of Article 27A of Chapter 14 of the General Statutes, Sex Offender and Public Protection Registration Programs.
    14. G.S. 14-196.3, Cyberstalking.
    15. G.S. 14-202, Secretly peeping into room occupied by another person.
    16. G.S. 14-258.2, Possession of dangerous weapon in prison resulting in bodily injury or escape; G.S. 14-258.3, Taking of hostage, etc., by prisoner; and G.S. 14-258.4, Malicious conduct by prisoner.
    17. G.S. 14-277.3A, Stalking.
    18. G.S. 14-288.9, Assault on emergency personnel with a dangerous weapon or substance.
    19. G.S. 14-288.21, Unlawful manufacture, assembly, possession, storage, transportation, sale, purchase, delivery, or acquisition of a nuclear, biological, or chemical weapon of mass destruction; exceptions; and G.S. 14-288.22, Unlawful use of a nuclear, biological, or chemical weapon of mass destruction.
    20. G.S. 14-318.4(a), Child abuse inflicting serious injury and G.S. 14-318.4(a3), Child abuse inflicting serious bodily injury.
    21. G.S. 14-360(a1), Cruelty to animals; maliciously kill by intentional deprivation of necessary sustenance; and G.S. 14-360(b), Cruelty to animals; maliciously torture, mutilate, maim, cruelly beat, disfigure, poison, or kill.
    22. G.S. 14-401.22(e), Attempt to conceal evidence of non-natural death by dismembering or destroying remains.
  7. This section also applies to a person arrested for attempting, solicitation of another to commit, conspiracy to commit, or aiding and abetting another to commit, any of the violations included in subsection (f) of this section.
  8. The Crime Laboratory shall remove a person’s DNA record, and destroy any DNA biological samples that may have been retained, from the State DNA Database and DNA Databank if both of the following are determined pursuant to subsection (i) of this section:
    1. As to the charge, or all charges, resulting from the arrest upon which a DNA sample is required under this section, a court or the district attorney has taken action resulting in any one of the following:
      1. The charge has been dismissed.
      2. The person has been acquitted of the charge.
      3. The defendant is convicted of a lesser-included misdemeanor offense that is not an offense included in subsection (f) or (g) of this section.
      4. No charge was filed within the statute of limitations, if any.
      5. No conviction has occurred, at least three years has passed since the date of arrest, and no active prosecution is occurring.
    2. The person’s DNA record is not required to be in the State DNA Database under some other provision of law, or is not required to be in the State DNA Database based upon an offense from a different transaction or occurrence from the one which was the basis for the person’s arrest.
  9. Prior to June 1, 2012, upon the occurrence of one of the events in sub-subdivision d. or e. of subdivision (1) of subsection (h) of this section, the defendant or the defendant’s counsel shall provide the prosecuting district attorney with a signed request form, promulgated by the Administrative Office of the Courts, requesting that the defendant’s DNA record be expunged from the DNA Database and that any biological samples in the DNA Databank be destroyed. On or after June 1, 2012, upon the occurrence of one of the events in sub-subdivision d. or e. of subdivision (1) of subsection (h) of this section, no request form shall be required and the prosecuting district attorney shall initiate the procedure provided in subsection (j) of this section.
  10. Prior to June 1, 2012, within 30 days of the receipt of the form required by subsection (i) of this section or the occurrence of one of the events in sub-subdivision a., b., or c. of subdivision (1) of subsection (h) of this section; and on or after June 1, 2012, within 30 days of the occurrence of one of the events in subdivision (1) of subsection (h) of this section, the prosecuting district attorney shall determine if a DNA sample was taken pursuant to this section, and if so, shall do all of the following:
    1. Verify and indicate the facts of the qualifying event on a verification form promulgated by the Administrative Office of the Courts.
    2. Include the last known address of the defendant, as reflected in the court files, on the verification form.
    3. Sign the verification form or, if the defendant was acquitted or the charges were dismissed by the court, obtain the signature of a judge.
    4. Transmit the verification form to the Crime Laboratory.
  11. Within 90 days of receipt of the verification form, the Crime Laboratory shall do all of the following:
    1. Determine whether the requirement of subdivision (2) of subsection (h) of this section has been met.
    2. If the requirement has been met, remove the defendant’s DNA record and samples as required by subsection (h) of this section.
    3. Mail to the defendant, at the address specified in the verification form, a notice doing either of the following:
      1. Documenting expunction of the DNA record and destruction of the DNA sample.
      2. Notifying the defendant that the DNA record and sample do not qualify for expunction pursuant to subsection (h) of this section.
  12. The defendant may file a motion with the court to review the denial of the defendant’s request or the failure of either the district attorney or the Crime Laboratory to act within the prescribed time period.
  13. Any identification, warrant, probable cause to arrest, or arrest based upon a database match of the defendant’s DNA sample which occurs after the expiration of the statutory periods prescribed for expunction of the defendant’s DNA sample, shall be invalid and inadmissable in the prosecution of the defendant for any criminal offense.
  14. Notwithstanding subsection (h) of this section, the Crime Laboratory is not required to destroy or remove an item of physical evidence obtained from a sample if evidence relating to another person would thereby be destroyed.
  15. The Crime Laboratory shall adopt procedures to comply with this section.

History. 2010-94, s. 4; 2013-171, s. 9; 2013-360, s. 17.6(f), (j); 2015-181, s. 47; 2015-241, s. 17.3(a); 2018-47, s. 4(n).

Editor’s Note.

At the direction of the Revisor of Statutes, subsections (b1) through (j) as enacted by Session Laws 2010-94, were redesignated as subsections (c) through (o).

Session Laws 2015-181, s. 47, provides: “The Revisor of Statutes may correct statutory references, as required by this act, throughout the General Statutes. In making the changes authorized by this act, the Revisor may also adjust the order of lists of multiple statutes to maintain statutory order, correct terms, make conforming changes to catch lines and references to catch lines, and adjust subject and verb agreement and the placement of conjunctions.” Pursuant to this authority, “Article 7B” was substituted for “Article 7A” in subdivision (f)(3) at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2013-171, s. 9, effective December 1, 2013, in subsection (k), substituted “90 days” for “30 days” near the beginning, substituted “notice doing either of the following” for “notice either” at the end of subdivision (3), and made a minor punctuation change at the end of subdivision (3)a. For applicability, see editor’s note.

Session Laws 2013-360, s. 17.6(f), (j), effective July 1, 2013, substituted “Crime Laboratory” for “State Bureau of Investigation” near the beginning of subsection (h) and for “SBI” everywhere else it appears.

Session Laws 2015-241, s. 17.3(a), effective December 1, 2015, rewrote subsection (f). For applicability, see editor’s note.

Session Laws 2018-47, s. 4(n), substituted “applies” for “shall apply” in subsection (f); substituted “an individual with a disability” for “handicapped person” in subdivision (f)(4); substituted “also applies” for “shall also apply” in subsection (g); and substituted “shall do all of the following:” for “shall:” in subsections (j) and (k). For effective date and applicability, see editor’s note.

§ 15A-266.4. DNA sample required for DNA analysis upon conviction or finding of not guilty by reason of insanity.

  1. Unless a DNA sample has previously been obtained by lawful process and a record stored in the State DNA Database, and that record and sample have not been expunged pursuant to any provision of law, a person:
    1. Who is convicted of any of the crimes listed in subsection (b) of this section or who is found not guilty of any of these crimes by reason of insanity and committed to a mental health facility in accordance with G.S. 15A-1321, shall provide a DNA sample upon intake to jail, prison, or the mental health facility. In addition, every person convicted of any of these crimes, but who is not sentenced to a term of confinement, shall provide a DNA sample as a condition of the sentence.
    2. Who has been convicted and incarcerated as a result of a conviction of one or more of the crimes listed in subsection (b) of this section, or who was found not guilty of any of these crimes by reason of insanity and committed to a mental health facility in accordance with G.S. 15A-1321, shall provide a DNA sample before parole or release from the penal system or before release from the mental health facility.
  2. Crimes covered by this Article include all of the following:
    1. All felonies.
    2. G.S. 14-32.1 — Assaults on individuals with a disability.
    3. Former G.S. 14-277.3 — Stalking.
    4. Repealed by Session Laws 2010-94, s. 5, effective February 1, 2011.
    5. All offenses described in G.S. 15A-266.3A.

History. 1993, c. 401, s. 1; 2001-487, s. 46; 2003-376, s. 2; 2005-130, s. 2; 2009-58, s. 2; 2010-94, s. 5; 2018-47, s. 4(o).

Effect of Amendments.

Session Laws 2009-58, s. 2, effective June 5, 2009, substituted “G.S. 14-277.3A or former G.S. 14-277.3” for “G.S. 14-277.3” in subdivision (b)(3).

Session Laws 2010-94, s. 5, effective February 1, 2011, in the section catchline, substituted “DNA sample” for “Blood sample”; rewrote and subdivided subsection (a); in subdivision (b)(3), deleted “G.S. 14-277.3A or” from the beginning; deleted subdivision (b)(4), which pertained to sexual battery; and added subdivision (b)(5).

Session Laws 2018-47, s. 4(o), substituted “individuals with a disability” for “handicapped persons” in subdivision (b)(2). For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment, “Arresting Development: A Call for North Carolina to Expand Its Forensic Database by Collecting DNA from Felony Arrestees,” see 32 Campbell L. Rev. 103 (2009).

For comment, “Sacrificing Liberty for Security: North Carolina’s Unconstitutional Search and Seizure of Arrestee DNA,” see 34 Campbell L. Rev. 473 (2012).

CASE NOTES

Constitutionality. —

DNA blood sample taken from defendant and test results retained by the State and the Federal Bureau of Investigation’s Combined DNA Index System did not violate his rights under the Law of the Land Clause, as it was taken pursuant to G.S. 15A-266.4, and the Government’s interest in preserving an identification of convicted felons for resolving past or future crimes outweighed defendant’s right to privacy while incarcerated and upon release. State v. Womble, 277 N.C. App. 164, 858 S.E.2d 304, 2021- NCCOA-150, 2021 N.C. App. LEXIS 177 (2021), dismissed, 2022 N.C. LEXIS 262 (N.C. Mar. 9, 2022).

§ 15A-266.5. Tests to be performed on DNA sample.

  1. The tests to be performed on each DNA sample are:
    1. To analyze and type only the genetic markers that are used for identification purposes contained in or derived from the DNA.
    2. For law enforcement identification purposes.
    3. For research and administrative purposes, including:
      1. Development of a population database when personal identifying information is removed.
      2. To support identification research and protocol development of forensic DNA analysis methods.
      3. For quality control purposes.
      4. To assist in the recovery or identification of human remains from mass disasters or for other humanitarian purposes, including identification of missing persons.
  2. The DNA record of identification characteristics resulting from the DNA testing shall be stored and maintained by the Crime Laboratory in the State DNA Database. The DNA sample itself will be stored and maintained by the Crime Laboratory in the State DNA Databank.
  3. The Crime Laboratory shall report annually to the Joint Legislative Oversight Committee on Justice and Public Safety, on or before September 1, with information for the previous fiscal year, which shall include: a summary of the operations and expenditures relating to the DNA Database and DNA Databank; the number of DNA records from arrestees entered; the number of DNA records from arrestees that have been expunged; and the number of DNA arrestee matches or hits that occurred with an unknown sample, and how many of those have led to an arrest and conviction; and how many letters notifying defendants that a record and sample have been expunged, along with the number of days it took to complete the expunction and notification process, from the date of the receipt of the verification form from the State.
  4. The Department of Justice, in consultation with the Administrative Office of the Courts and the Conference of District Attorneys, shall study, develop, and recommend an automated procedure to facilitate the process of expunging DNA samples and records taken pursuant to G.S. 15A-266.3A, and shall report to the Joint Legislative Commission on Governmental Operations, the Joint Legislative Oversight Committee on Justice and Public Safety, and the Courts Commission, on or before February 1, 2011.

History. 1993, c. 401, s. 1; 2010-94, s. 6; 2011-291, s. 2.3; 2013-360, s. 17.6(f); 2015-241, s. 17.2.

Effect of Amendments.

Session Laws 2010-94, s. 6, effective February 1, 2011, in the section catchline and in the introductory language in subsection (a), substituted “DNA sample” for “blood sample”; in subdivision (a)(1), inserted “only” and “that are used for identification purposes”; and added subsections (c) and (d).

Session Laws 2011-291, s. 2.3, effective June 24, 2011, in subsections (c) and (d), substituted “Joint Legislative Oversight Committee on Justice and Public Safety” for “Joint Legislative Corrections, Crime Control, and Juvenile Justice Oversight Committee.”

Session Laws 2013-360, s. 17.6(f), effective July 1, 2013, substituted “Crime Laboratory” for “SBI” throughout the section.

Session Laws 2015-241, s. 17.2, effective July 1, 2015, in subsection (c), deleted “the Joint Legislative Commission on Governmental Operations and to,” and substituted “September 1” for “February 1” and “fiscal year” for “calendar year.”

Legal Periodicals.

For comment, “DNA Databases: The Case for the Combined DNA Index System,” see 29 Wake Forest L. Rev. 889 (1994).

For comment, “Sacrificing Liberty for Security: North Carolina’s Unconstitutional Search and Seizure of Arrestee DNA,” see 34 Campbell L. Rev. 473 (2012).

§ 15A-266.5A. Statewide sexual assault examination kit testing protocol.

  1. Legislative Intent. —  The General Assembly finds that deoxyribonucleic acid (DNA) evidence is a powerful law enforcement tool that can identify unknown suspects, create case linkages, connect crimes to known perpetrators, and exonerate the innocent. Timely testing is vital to solve cases, punish offenders, bring justice to victims, and prevent future crimes. It is the intent of the General Assembly that every sexual assault examination kit reported to law enforcement in this State be tested and to eliminate the inventory of untested sexual assault examination kits located statewide. The purpose of this section is to address the manner in which sexual assault examination kits are processed and the protocol for testing the statewide inventory of untested sexual assault examination kits identified pursuant to the findings of the statewide audit completed pursuant to Section 17.7 of S.L. 2017-57.
  2. Definitions. —  The following definitions apply in this section:
    1. CODIS — As defined in G.S. 15A-266.2.
    2. Collecting agency. — Any agency, program, center, or other entity that collects a sexual assault examination kit.
    3. Reported sexual assault examination kit. — A sexual assault examination kit collected from a person who consented to the collection of the sexual assault examination kit and has consented to participate in the criminal justice process by reporting the crime to law enforcement.
    4. State DNA database. — As defined in G.S. 15A-266.2.
    5. Unfounded sexual assault examination kit. — A reported sexual assault examination kit, whereupon completion of the investigation it was concluded by the investigating law enforcement agency, based on clear and convincing evidence, that a crime did not occur.
    6. Unreported sexual assault examination kit. — A sexual assault examination kit collected from a person who consented to the collection of the sexual assault examination kit, but has not consented to participate in the criminal justice process.
  3. Notification and Submission Requirements for Kits Completed On or After July 1, 2019. —  Any collecting agency that collects a sexual assault examination kit completed on or after July 1, 2019, shall preserve the kit according to guidelines established under G.S. 15A-268(a2) and notify the appropriate law enforcement agency as soon as practicable, but no later than 24 hours after the collection occurred. A law enforcement agency notified under this subsection shall do all of the following:
    1. Take custody of a sexual assault examination kit from the collecting agency that collected the kit within seven days of receiving notification. The law enforcement agency that takes custody of a kit under this subdivision shall retain and preserve the kit in accordance with the requirements of G.S. 15A-268.
    2. Submit a reported sexual assault examination kit to the State Crime Laboratory, or a laboratory approved by the State Crime Laboratory, not more than 45 days after taking custody of the reported sexual assault examination kit.
    3. Submit an unreported sexual assault examination kit to the Department of Public Safety not more than 45 days after taking custody of the unreported sexual assault examination kit. The Department of Public Safety shall store any kit it receives under this subdivision pursuant to the authority set forth in G.S. 143B-601(13).
  4. Notification and Submission Requirements for Kits Completed On or Before January 1, 2018. —  Any law enforcement agency that possesses a sexual assault examination kit completed on or before January 1, 2018, shall do the following:
    1. Establish a review team that may consist of prosecutors, active or retired law enforcement officers, sexual assault nurse examiners, victim advocacy groups, and representatives from a forensic laboratory. The review team required under this subdivision shall be established as soon as practicable, but no later than three months after the effective date of this section.
    2. Utilize the review team established under subdivision (1) of this subsection to survey the law enforcement agency’s entire untested sexual assault examination kit inventory and conduct a case review to determine each sexual assault examination kit’s testing priority. The survey and review required under this subdivision shall be completed as soon as practicable, but no later than six months after the effective date of this section. The review required under this subdivision shall consider each of the following factors in determining the submission priority of a sexual assault examination kit:
      1. Investigative and evidentiary value for the individual case.
      2. CODIS potential to link profiles and identify possible serial offenders.
      3. Potential for victim participation in the investigation and prosecution.
      4. Potential value for admission as evidence under Rule 404(b) of the North Carolina Rules of Evidence.
      5. Age and health of victim.
      6. Potential for exculpatory value for a convicted person.
      7. Any other factor the review team deems to be relevant.
    3. Upon determination by the review team that a sexual assault examination kit is of priority status and not subject to subsection (e) of this section, the law enforcement agency shall notify the State Crime Laboratory, or a laboratory approved by the State Crime Laboratory, of the sexual assault examination kit and submit a request for testing of the sexual assault examination kit. The law enforcement agency shall continue the process set forth in subdivisions (2) and (3) of this subsection until all untested sexual assault examination kits eligible for submission within its inventory have been submitted for testing. The following untested sexual assault examinations kits are not eligible for submission for testing under this subdivision:
      1. Unreported sexual assault examination kits. Unreported sexual assault examination kits shall be sent within 45 days of the review required under subdivision (2) of this subsection to the Department of Public of Safety for storage pursuant to the authority set forth in G.S. 143B-601(13).
      2. Sexual assault examination kits that have been confirmed as unfounded sexual assault examination kits after a comprehensive case review by the law enforcement agency and complete review by the review team established under subdivision (1) of this subsection. The law enforcement agency shall track within the agency the number of sexual assault examination kits which are concluded to be unfounded along with a brief summary indicating the information and evidence supporting the determination of an unfounded sexual assault examination kit. If the law enforcement agency receives any information or evidence that creates investigative or evidentiary value for testing the unfounded sexual assault examination kit, the law enforcement agency shall send the unfounded sexual assault examination kit to the State Crime Laboratory, or a laboratory approved by the State Crime Laboratory, as soon as practicable.
      3. Sexual assault examination kits in which (i) a criminal prosecution has resulted in conviction, (ii) the convicted person does not seek DNA testing, and (iii) the convicted person’s DNA profile is already in CODIS.
  5. Submission Requirements for Other Kits. —  Sexual assault examination kits that are not subject to the requirements of subsections (c) or (d) of this section shall be submitted to the State Crime Laboratory, or a laboratory approved by the State Crime Laboratory, as soon as practicable.
  6. Testing Requirements for Accepted Kits. —  As soon as practicable after receiving a written request for testing of a sexual assault examination kit subject to subsection (d) of this section, the State Crime Laboratory, or a laboratory approved by the State Crime Laboratory, shall notify the submitting law enforcement agency of the request’s approval and provide shipment instructions for the sexual assault examination kit. The State Crime Laboratory, or a laboratory approved by the State Crime Laboratory, shall pursue DNA analysis of any sexual assault examination kit accepted from a law enforcement agency under this section to develop DNA profiles that are eligible for entry into CODIS and the State DNA Database pursuant to G.S. 15A-266.5 and G.S. 15A-266.7. The State CODIS System Administrator, or the Administrator’s designee, shall enter a DNA profile developed under this subsection into the CODIS database pursuant to G.S. 15A-266.8 and into the State DNA Database, provided that the testing of the sexual assault examination kit resulted in an eligible DNA profile.
  7. Lack of Compliance. —  Lack of compliance with the requirements set forth in this section shall not result in any of the following:
    1. Constituting grounds upon which a person may challenge in any hearing, trial, or other court proceeding the validity of DNA evidence in any criminal or civil proceeding.
    2. Justification for the exclusion of evidence generated from a sexual assault examination kit.
    3. Providing a person who is accused or convicted of committing a crime against a victim a basis to request that the person’s case be dismissed or conviction set aside, or providing a cause of action or civil claim.
  8. Sexual Assault Response and Training. —  The Department of Justice, the North Carolina Coalition Against Sexual Assault, the North Carolina Victims Assistance Network, and the Conference of District Attorneys shall jointly develop and provide response and training programs to law enforcement and their sexual assault examination kit review teams regarding sexual assault investigations, including victim interactions and kit collection, storage, tracking, and testing.

History. 2019-221, s. 2.

Editor’s Note.

Session Laws 2019-221, s. 9 made this section effective September 18, 2019, and applicable to CODIS hits received on or after that date.

Session Laws 2019-221, s. 1, provides: “This act shall be known and may be cited as ‘The Standing Up for Rape Victims (SURVIVOR) Act of 2019.’ ”

Session Laws 2019-221, s. 2, enacted subdivision (b)(3) as subdivision (b)(4), and subdivision (b)(4) as subdivision (b)(3). The subdivisions were renumbered at the direction of the Revisor of Statutes to maintain alphabetical order of the definitions in subsection (b).

Session Laws 2019-221, s. 4, provides: “The State Crime Lab shall report to the Joint Legislative Oversight Committee on Justice and Public Safety by March 1, 2020, on the use of funds appropriated in this act to test sexual assault evidence collection kits.” Session Laws 2019-221, ss. 5 and 6 appropriated the funds.

Session Laws 2019-221, s. 7 repealed section 17.2 of House Bill 966, 2019 Regular Session, if House Bill 966, 2019 Regular Session, becomes law.

Session Laws 2019-221, s. 8, provides: “If any provision of this act and G.S. 143C-5-4 are in conflict, the provisions of this act shall prevail. The appropriations and the authorizations to allocate and spend funds which are set out in this act shall remain in effect until the Current Operations Appropriations Act for the applicable fiscal year becomes law, at which time that act shall become effective and shall govern appropriations and expenditures. When the Current Operations Appropriations Act for that fiscal year becomes law, the Director of the Budget shall adjust allotments to give effect to that act from July 1 of the fiscal year.”

§ 15A-266.6. Procedures for obtaining DNA sample for analysis; refusal to provide sample.

  1. Each DNA sample provided pursuant to G.S. 15A-266.4 from persons who are incarcerated shall be obtained at the place of incarceration. DNA samples from persons who are not sentenced to a term of confinement shall be obtained immediately following sentencing. The sentencing court shall order any person not sentenced to a term of confinement, who has not previously provided a DNA sample pursuant to any provision of law requiring a sample and whose DNA record and sample have not been expunged pursuant to law, to report immediately following sentencing to the location designated by the sheriff. If the sample cannot be taken immediately, the sheriff shall inform the court of the date, time, and location at which the sample shall be taken, and the court shall enter that date, time, and location into its order. A copy of the court order indicating the date, time, and location the person is to appear to have a sample taken shall be given to the sheriff. If a person not sentenced to a term of confinement fails to appear immediately following sentencing or at the date, time, and location designated in the court order, the sheriff shall inform the court of the failure to appear and the court may issue an order to show cause pursuant to G.S. 5A-15 and may issue an order for arrest pursuant to G.S. 5A-16. The defendant shall continue to be subject to the court’s order to provide a DNA sample until such time as his or her DNA sample is analyzed and a record is successfully entered into the State DNA Database.
  2. If, for any reason, the defendant provides a DNA blood sample instead of a cheek swab, only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory technician, phlebotomist, or other health care worker with phlebotomy training shall draw the DNA blood sample to be submitted for analysis. No civil liability shall attach to any person authorized to draw blood by this section as a result of drawing blood from any person if the blood was drawn according to recognized medical procedures. No person shall be relieved from liability for negligence in obtaining a DNA sample by any method.
  3. The Crime Laboratory shall provide the materials, supplies, and postage prepaid envelopes necessary to obtain a DNA sample from a person required to provide a DNA sample pursuant to this Article and to forward the DNA sample to the appropriate laboratory for DNA analysis and testing. Any DNA sample obtained pursuant to this Article, other than a DNA sample obtained from a person who is incarcerated, shall be taken using the materials and supplies provided by the Crime Laboratory.

History. 1993, c. 401, s. 1; 2003-376, s. 3; 2010-94, s. 7; 2013-360, s. 17.6(f).

Effect of Amendments.

Session Laws 2010-94, s. 7, effective February 1, 2011, rewrote the section.

Session Laws 2013-360, s. 17.6(f), effective July 1, 2013, substituted “Crime Laboratory” for “SBI” twice in subsection (c).

Legal Periodicals.

For comment, “Sacrificing Liberty for Security: North Carolina’s Unconstitutional Search and Seizure of Arrestee DNA,” see 34 Campbell L. Rev. 473 (2012).

§ 15A-266.7. Procedures for conducting DNA analysis of DNA sample.

  1. The Crime Laboratory shall:
    1. Adopt procedures to be used in the collection, security, submission, identification, analysis, and storage of DNA samples and typing results of DNA samples submitted under this Article. These procedures shall also include quality assurance guidelines to insure that DNA identification records meet audit standards for laboratories which submit DNA records to the State DNA Database.
    2. Adopt Quality Assurance Guidelines for DNA Testing Laboratories and DNA Databasing Laboratories that meet or exceed the quality assurance guidelines established for such laboratories by the CODIS unit of the Federal Bureau of Investigation.
  2. DNA samples shall be securely stored in the State DNA Databank. The typing results shall be securely stored in the State DNA Database.
  3. Records of testing shall be retained on file at the Crime Laboratory.

History. 1993, c. 401, s. 1; 2010-94, s. 8; 2013-360, s. 17.6(f).

Effect of Amendments.

Session Laws 2010-94, s. 8, effective February 1, 2011, in the section catchline, substituted “DNA sample” for “blood sample”; and rewrote the section, which formerly read: “The SBI shall adopt rules governing the procedures to be used in the submission, identification, analysis, and storage of DNA samples and typing results of DNA samples submitted under this Article. The DNA sample shall be securely stored in the State Databank. The typing results shall be securely stored in the State Database. These procedures shall also include quality assurance guidelines to insure that DNA identification records meet standards and audit standards for laboratories which submit DNA records to the State Database. Records of testing shall be retained on file at the SBI.”

Session Laws 2013-360, s. 17.6(f), effective July 1, 2013, substituted “Crime Laboratory” for “SBI” both times it appears.

Legal Periodicals.

For comment, “Sacrificing Liberty for Security: North Carolina’s Unconstitutional Search and Seizure of Arrestee DNA,” see 34 Campbell L. Rev. 473 (2012).

§ 15A-266.8. DNA database exchange.

  1. It shall be the duty of the Crime Laboratory to receive DNA samples, to store, to analyze or to contract out the DNA typing analysis to a qualified DNA laboratory that meets the guidelines as established by the Crime Laboratory, classify, and file the DNA record of identification characteristic profiles of DNA samples submitted pursuant to this Article and to make such information available as provided in this section. The Crime Laboratory may contract out DNA typing analysis to a qualified DNA laboratory that meets guidelines as established by the Crime Laboratory. The results of the DNA profile of individuals in the State Database shall be made available to local, State, or federal law enforcement agencies, approved crime laboratories which serve these agencies, or the district attorney’s office upon written or electronic request and in furtherance of an official investigation of a criminal offense. These records shall also be available upon receipt of a valid court order directing the Crime Laboratory to release these results to appropriate parties not listed above, when the court order is signed by a superior court judge after a hearing. The Crime Laboratory shall maintain a file of such court orders.
  2. The Crime Laboratory shall adopt rules governing the methods of obtaining information from the State Database and CODIS and procedures for verification of the identity and authority of the requester.
  3. The Crime Laboratory shall create a separate population database comprised of DNA samples obtained under this Article, after all personal identification is removed. Nothing shall prohibit the Crime Laboratory from sharing or disseminating population databases with other law enforcement agencies, crime laboratories that serve them, or other third parties the Crime Laboratory deems necessary to assist the Crime Laboratory with statistical analysis of the Crime Laboratory’s population databases. The population database may be made available to and searched by other agencies participating in the CODIS system.
  4. A law enforcement agency that receives an actionable CODIS hit on a submitted DNA sample shall provide electronic notice to the State Crime Laboratory as follows:
    1. Detailing any arrest of a person made in connection with the CODIS hit, no later than 15 days after the arrest.
    2. Detailing any conviction of a person resulting from the CODIS hit, no later than 15 days from the date of conviction.

History. 1993, c. 401, s. 1; 2010-94, s. 9; 2013-360, s. 17.6(f); 2019-221, s. 3.

Editor’s Note.

Session Laws 2019-221, s. 1, provides: “This act shall be known and may be cited as ‘The Standing Up for Rape Victims (SURVIVOR) Act of 2019.’ ”

Session Laws 2019-221, s. 4, provides: “The State Crime Lab shall report to the Joint Legislative Oversight Committee on Justice and Public Safety by March 1, 2020, on the use of funds appropriated in this act to test sexual assault evidence collection kits.” Session Laws 2019-221, ss. 5 and 6 appropriated the funds.

Session Laws 2019-221, s. 7 repealed section 17.2 of House Bill 966, 2019 Regular Session, if House Bill 966, 2019 Regular Session, becomes law.

Session Laws 2019-221, s. 8, provides: “If any provision of this act and G.S. 143C-5-4 are in conflict, the provisions of this act shall prevail. The appropriations and the authorizations to allocate and spend funds which are set out in this act shall remain in effect until the Current Operations Appropriations Act for the applicable fiscal year becomes law, at which time that act shall become effective and shall govern appropriations and expenditures. When the Current Operations Appropriations Act for that fiscal year becomes law, the Director of the Budget shall adjust allotments to give effect to that act from July 1 of the fiscal year.”

Session Laws 2019-221, s. 9 made subsection (d) of this section, as added by Session Laws 2019-221, s. 3, effective September 18, 2019, and applicable to CODIS hits received on or after that date.

Effect of Amendments.

Session Laws 2010-94, s. 9, effective February 1, 2011, in the first sentence in subsection (a), substituted “this Article” for “G.S. 15A-266.7”; and in the first sentence in subsection (c), substituted “DNA samples” for “blood samples.”

Session Laws 2013-360, s. 17.6(f), effective July 1, 2013, substituted “Crime Laboratory” for “SBI” throughout the section.

Session Laws 2019-221, s. 3, added subsection (d). For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment, “Sacrificing Liberty for Security: North Carolina’s Unconstitutional Search and Seizure of Arrestee DNA,” see 34 Campbell L. Rev. 473 (2012).

§ 15A-266.9. Cancellation of authority to exchange DNA records.

The Crime Laboratory is authorized to revoke the right of a forensic DNA laboratory within the State to exchange DNA identification records with federal, State, or local criminal justice agencies if the required control and privacy standards specified by the Crime Laboratory for the State DNA Database are not met by these agencies.

History. 1993, c. 401, s. 1; 2013-360, s. 17.6(f).

Effect of Amendments.

Session Laws 2013-360, s. 17.6(f), effective July 1, 2013, substituted “Crime Laboratory” for “SBI” both times it appears.

§ 15A-266.10. [Repealed]

Repealed by Session Laws 2001-282, s. 3, effective October 1, 2001.

Cross References.

As to expungement of DNA records, see now G.S. 15A-146(b1), (b2) and G.S. 15A-148.

Editor’s Note.

Session Laws 2001-282, s. 6 provides that s. 3 of the act, which repealed this section, is effective October 1, 2001, and applies to evidence, records, and samples in the possession of a governmental entity on or after October 1, 2001.

§ 15A-266.11. Unauthorized uses of DNA Databank; penalties.

  1. Any person who has possession of, or access to, individually identifiable DNA information contained in the State DNA Database or Databank and who willfully discloses it in any manner to any person or agency not entitled to receive it is guilty of a Class H felony.
  2. Any person who, without authorization, willfully obtains individually identifiable DNA information from the State DNA Database or Databank is guilty of a Class H felony.

History. 1993, c. 401, s. 1; 1994, Ex. Sess., c. 14, s. 15; 2010-94, s. 10.

Effect of Amendments.

Session Laws 2010-94, s. 10, effective February 1, 2011, in subsection (a), deleted “by virtue of employment, or official position” following “who”; and in subsections (a) and (b), substituted “is guilty of a Class H felony” for “is guilty of a Class 1 misdemeanor in accordance with G.S. 14-3.”

Legal Periodicals.

For comment, “Sacrificing Liberty for Security: North Carolina’s Unconstitutional Search and Seizure of Arrestee DNA,” see 34 Campbell L. Rev. 473 (2012).

§ 15A-266.12. Confidentiality of records.

  1. All DNA profiles and samples submitted to the Crime Laboratory pursuant to this Article shall be treated as confidential and shall not be disclosed to or shared with any person or agency except as provided in G.S. 15A-266.8.
  2. Only DNA records and samples that directly relate to the identification of individuals shall be collected and stored. These records and samples shall solely be used as a part of the criminal justice system for the purpose of facilitating the personal identification of the perpetrator of a criminal offense; provided that in appropriate circumstances such records may be used to identify potential victims of mass disasters or missing persons.
  3. DNA records and DNA samples submitted to the Crime Laboratory pursuant to this Article are not a public record as defined by G.S. 132-1.
  4. In the case of a criminal proceeding, requests to access a person’s DNA record shall be in accordance with the rules for criminal discovery as defined in G.S. 15A-902. The Crime Laboratory shall not be required to provide the State DNA Database for criminal discovery purposes.
  5. DNA records and DNA samples submitted to the Crime Laboratory may only be released for the following authorized purposes:
    1. For law enforcement identification purposes, including the identification of human remains, to federal, State, or local criminal justice agencies.
    2. For criminal defense and appeal purposes, to a defendant who shall have access to samples and analyses performed in connection with the case in which such defendant is charged or was convicted.
    3. If personally identifiable information is removed to local, State, or federal law enforcement agencies for forensic validation studies, forensic protocol development or quality control purposes, and for establishment or maintenance of a population statistics database.
  6. In order to maintain the computer system security of the Crime Laboratory DNA database program, the computer software and database structures used by the Crime Laboratory to implement this Article are confidential.

History. 1993, c. 401, s. 1; 2003-376, s. 4; 2010-94, s. 11; 2013-360, s. 17.6(f).

Effect of Amendments.

Session Laws 2010-94, s. 11, effective February 1, 2011, in subsection (a), inserted “and shall not be disclosed to or shared with any person or agency”; and added subsections (c) through (f).

Session Laws 2013-360, s. 17.6(f), effective July 1, 2013, substituted “Crime Laboratory” for “SBI” throughout the section.

Legal Periodicals.

For comment, “Sacrificing Liberty for Security: North Carolina’s Unconstitutional Search and Seizure of Arrestee DNA,” see 34 Campbell L. Rev. 473 (2012).

§ 15A-267. Access to DNA samples from crime scene.

  1. A criminal defendant shall have access before trial to the following:
    1. Any DNA analyses performed in connection with the case in which the defendant is charged.
    2. Any biological material, that has not been DNA tested, that was collected from the crime scene, the defendant’s residence, or the defendant’s property.
    3. A complete inventory of all physical evidence collected in connection with the investigation.
  2. Access as provided for in subsection (a) of this section shall be governed by G.S. 15A-902 and G.S. 15A-952.
  3. Upon a defendant’s motion made before trial in accordance with G.S. 15A-952, the court shall order the Crime Laboratory or any approved vendor that meets Crime Laboratory contracting standards to perform DNA testing and, if the data meets NDIS criteria, order the Crime Laboratory to search and/or upload to CODIS any profiles obtained from the testing upon a showing of all of the following:
    1. That the biological material is relevant to the investigation.
    2. That the biological material was not previously DNA tested or that more accurate testing procedures are now available that were not available at the time of previous testing and there is a reasonable possibility that the result would have been different.
    3. That the testing is material to the defendant’s defense.
  4. The defendant shall be responsible for bearing the cost of any further testing and comparison of the biological materials, including any costs associated with the testing and comparison by the Crime Laboratory in accordance with this section, unless the court has determined the defendant is indigent, in which event the State shall bear the costs.

History. 2001-282, s. 4; 2007-539, s. 1; 2009-203, s. 3; 2013-360, s. 17.6(f).

Editor’s Note.

Session Laws 2001-282, s. 6, made this section effective July 13, 2001, and applicable to persons charged with crimes on or after that date.

Effect of Amendments.

Session Laws 2007-539, s. 1, effective March 1, 2008, deleted “but not DNA tested” following “biological material collected” in subsection (c); and substituted “tested or that more accurate testing procedures are now available that were not available at the time of previous testing and there is a reasonable possibility that the result would have been different” for “tested” in subdivision (c)(2).

Session Laws 2009-203, s. 3, effective December 1, 2009, added subdivision (a)(3); and, in subsection (c), in the introductory language, substituted “shall order ” for “may order”, inserted “or any approved vendor that meets SBI contracting standards” and substituted “and, if the data meets NDIS criteria, order the SBI to search and/or upload to CODIS any profiles obtained from the testing” for “and DNA Database comparisons of any biological material collected in connection with the case in which the defendant is charged.”

Session Laws 2013-360, s. 17.6(f), effective July 1, 2013, substituted “Crime Laboratory” for “SBI” throughout the section.

CASE NOTES

Postconviction DNA Testing. —

Defendant was not entitled to postconviction DNA testing pursuant to G.S. 15A-267 because the statute only provided for pretrial access to DNA samples from a crime scene. State v. Turner, 239 N.C. App. 450, 768 S.E.2d 356, 2015 N.C. App. LEXIS 84 (2015).

No Right to Appeal. —

Defendant’s appeal of the trial court’s denial of his motion for post-conviction DNA testing was dismissed because neither G.S. 15A-269 nor G.S. 15A-270 allows a defendant an appeal as of right from a grant or denial of a motion for post-conviction DNA. Review by writ of certiorari was also not available to defendant because his conviction for attempted rape had already been entered and there was no statutory reason allowing a writ of certiorari regarding motions for post-conviction DNA testing. State v. Brown, 170 N.C. App. 601, 613 S.E.2d 284, 2005 N.C. App. LEXIS 1069 (2005).

§ 15A-268. Preservation of biological evidence.

  1. As used in this section, the term “biological evidence” includes the contents of a sexual assault examination kit or any item that contains blood, semen, hair, saliva, skin tissue, fingerprints, or other identifiable human biological material that may reasonably be used to incriminate or exculpate any person in the criminal investigation, whether that material is catalogued separately on a slide or swab, in a test tube, or some other similar method, or is present on clothing, ligatures, bedding, other household materials, drinking cups, cigarettes, or any other item of evidence.
  2. Notwithstanding any other provision of law and subject to subsection (b) of this section, a custodial agency shall preserve any physical evidence, regardless of the date of collection, that is reasonably likely to contain any biological evidence collected in the course of a criminal investigation or prosecution. Evidence shall be preserved in a manner reasonably calculated to prevent contamination or degradation of any biological evidence that might be present, subject to a continuous chain of custody, and securely retained with sufficient official documentation to locate the evidence.
  3. The Crime Laboratory shall promulgate and publish minimum guidelines that meet the requirements for retention and preservation of biological evidence under subsection (a1) of this section. Guidelines shall be published no later than January 1, 2010, and shall be reviewed and updated biennially thereafter. Law enforcement agencies and the Conference of Clerks of Superior Court shall ensure the guidelines are distributed to all employees with responsibility for maintaining custody of evidence.
  4. When physical evidence is offered or admitted into evidence in a criminal proceeding of the General Court of Justice, the presiding judge shall inquire of the State and defendant as to the identity of the collecting agency of the evidence and whether the evidence in question is reasonably likely to contain biological evidence and if that biological evidence is relevant to establishing the identity of the perpetrator in the case. If either party asserts that the evidence in question may have biological evidentiary value, and the court so finds, the court shall instruct that the evidence be so designated in the court’s records and that the evidence be preserved pursuant to the requirements of this section.
  5. If evidence has been designated by the court as biological evidence pursuant to subsection (a3) of this section, the clerk of superior court that takes custody of evidence pursuant to the rules of practice and procedure for the superior and district courts as adopted by the Supreme Court pursuant to G.S. 7A-34 shall preserve such evidence consistent with subsection (a1) of this section. Upon conclusion of the clerk’s role as custodian, as provided in the applicable rules of practice, the clerk shall return such evidence to the collecting agency, as determined in subsection (a3) of this section, in a manner that ensures the chain of custody is maintained and documented.
  6. The duty to preserve may not be waived knowingly and voluntarily by a defendant, without a court hearing, which may include any other hearing associated with the disposition of the case.
  7. The evidence described by subsection (a1) of this section shall be preserved for the following period:
    1. For conviction resulting in a sentence of death, until execution.
    2. For conviction resulting in a sentence of life without parole, until the death of the convicted person.
    3. For conviction of any homicide, sex offense, assault, kidnapping, burglary, robbery, arson or burning, for which a Class B1-E felony punishment is imposed, the evidence shall be preserved during the period of incarceration and mandatory supervised release, including sex offender registration pursuant to Article 27A of Chapter 14 of the General Statutes, except in cases where the person convicted entered and was convicted on a plea of guilty, in which case the evidence shall be preserved for the earlier of three years from the date of conviction or until released.
    4. Biological evidence collected as part of a criminal investigation of any homicide or rape, in which no charges are filed, shall be preserved for the period of time that the crime remains unsolved.
    5. A custodial agency in custody of biological evidence unrelated to a criminal investigation or prosecution referenced by subdivision (1), (2), (3), or (4) of this subsection may dispose of the evidence in accordance with the rules of the agency.
    6. Notwithstanding the retention requirements in subdivisions (1) through (5) of this subsection, at any time after collection and prior to or at the time of disposition of the case at the trial court level, if the evidence collected as part of the criminal investigation is of a size, bulk, or physical character as to render retention impracticable or should be returned to its rightful owner, the State may petition the court for retention of samples of the biological evidence in lieu of the actual physical evidence. After giving any defendant charged in connection with the case an opportunity to be heard, the court may order that the collecting agency take reasonable measures to remove or preserve for retention portions of evidence likely to contain biological evidence related to the offense through cuttings, swabs, or other means consistent with Crime Laboratory minimum guidelines in a quantity sufficient to permit DNA testing before returning or disposing of the evidence.
  8. Upon written request by the defendant, the custodial agency shall prepare an inventory of biological evidence relevant to the defendant’s case that is in the custodial agency’s custody. If the evidence was destroyed through court order or other written directive, the custodial agency shall provide the defendant with a copy of the court order or written directive.
  9. The custodial agency required to preserve evidence pursuant to subsection (a1) of this section may dispose of the evidence prior to the expiration of the period of time described in subsection (a6) of this section if all of the following conditions are met:
    1. The custodial agency sent notice of its intent to dispose of the evidence to the district attorney in the county in which the conviction was obtained.
    2. The custodial agency has determined that it has no duty to preserve the evidence under G.S. 15A-1471.
    3. The district attorney gave to each of the following persons written notification of the intent of the custodial agency to dispose of the evidence: any defendant convicted of a felony who is currently incarcerated in connection with the case, the defendant’s counsel of record for that case, and the Office of Indigent Defense Services. The notice shall be consistent with the provisions of this section, and the district attorney shall send a copy of the notice to the custodial agency. Delivery of written notification from the district attorney to the defendant was effectuated by the district attorney transmitting the written notification to the superintendent of the correctional facility where the defendant was assigned at the time and the superintendent’s personal delivery of the written notification to the defendant. Certification of delivery by the superintendent to the defendant in accordance with this subdivision was in accordance with subsection (c) of this section.
    4. The written notification from the district attorney specified the following:
      1. That the custodial agency would destroy the evidence collected in connection with the case unless the custodial agency received a written request that the evidence not be destroyed.
      2. The address of the custodial agency where the written request was to be sent.
      3. That the written request from the defendant, or his or her representative, must be received by the custodial agency within 90 days of the date of receipt by the defendant of the district attorney’s written notification.
      4. That the written request must ask that the evidence not be destroyed or disposed of for one of the following reasons:
        1. The case is currently on appeal.
        2. The case is currently in postconviction proceedings.
        3. The defendant will file a motion for DNA testing pursuant to G.S. 15A-269 within 180 days of the postmark of the defendant’s response to the district attorney’s written notification of the custodial agency’s intent to dispose of the evidence, unless a request for extension is requested by the defendant and agreed to by the custodial agency.
        4. The case has been referred to the North Carolina Innocence Inquiry Commission pursuant to Article 92 of Chapter 15A of the General Statutes.
    5. The custodial agency did not receive a written request in compliance with the conditions set forth in sub-subdivision (3)d. of this subsection within 90 days of the date of receipt by the defendant of the district attorney’s written notification.
  10. Upon receiving a written notification from a district attorney in accordance with subdivision (b)(3) of this section, the superintendent shall personally deliver the written notification to the defendant. Upon effectuating personal delivery on the defendant, the superintendent shall sign a sworn written certification that the written notification had been delivered to the defendant in compliance with this subsection indicating the date the delivery was made. The superintendent’s certification shall be sent by the superintendent to the custodial agency that intends to dispose of the sample of evidence. The custodial agency may rely on the superintendent’s certification as evidence of the date of receipt by the defendant of the district attorney’s written notification.
  11. After a hearing held in response to a defendant’s written request that the evidence not be destroyed in response to notice pursuant to subsection (b) of this section, the court may enter an order authorizing the custodial agency to dispose of the evidence if the court determines by the preponderance of the evidence that the evidence:
    1. Has no significant value for biological analysis and should be returned to its rightful owner, destroyed, used for training purposes, or otherwise disposed of as provided by law; or
    2. Repealed by Session Laws 2009-203, s. 4, effective December 1, 2009.
    3. May have value for biological analysis but is of a size, bulk, or physical character as to render retention impracticable or should be returned to its rightful owner.
  12. The court order allowing the disposition of the evidence pursuant to subdivision (d)(3) of this section shall require the custodial agency to return such evidence to the collecting agency. The collecting agency shall take reasonable measures to remove or preserve portions of evidence likely to contain biological evidence related to the offense through cuttings, swabs, or other means consistent with Crime Laboratory minimum guidelines in a quantity sufficient to permit DNA testing before returning or disposing of the evidence. The court may provide the defendant an opportunity to take reasonable measures to preserve the evidence.
  13. An order regarding the disposition of evidence pursuant to this section shall be a final and appealable order. The defendant shall have 30 days from the entry of the order to file notice of appeal. The custodial agency shall not dispose of the evidence while the appeal is pending.
  14. If an entity is asked to produce evidence that is required to be preserved under the provisions of this section and cannot produce the evidence, the chief evidence custodian of the custodial agency shall provide an affidavit in which he or she describes, under penalty of perjury, the efforts taken to locate the evidence and affirms that the evidence could not be located. If the evidence that is required to be preserved pursuant to this section has been destroyed, the court may conduct a hearing to determine whether obstruction of justice and contempt proceedings are in order. If the court finds the destruction violated the defendant’s due process rights, the court shall order an appropriate remedy, which may include dismissal of charges.
  15. All records documenting the possession, control, storage, and destruction of evidence related to a criminal investigation or prosecution of an offense referenced in subdivision (1), (2), (3), or (4) of subsection (a6) of this section shall be retained.
  16. Whoever knowingly and intentionally destroys, alters, conceals, or tampers with evidence that is required to be preserved under this section, with the intent to impair the integrity of that evidence, prevent that evidence from being subjected to DNA testing, or prevent production or use of that evidence in an official proceeding, shall be punished as follows:
    1. If the evidence is for a noncapital crime, then a violation of this subsection is a Class I felony.
    2. If the evidence is for a crime of first degree murder, then a violation of this subsection is a Class H felony.

History. 2001-282, s. 4; 2007-539, s. 2; 2009-203, s. 4; 2009-570, s. 30(a), (b); 2012-7, ss. 1-3; 2013-360, s. 17.6(f); 2015-247, s. 10(a), (b).

Cross References.

As to preservation of files and evidence; production of files and evidence; forensic and DNA testing , see G.S. 15A-1471.

Editor’s Note.

Subdivisions (a6)(1a), (1b), (5), and (6), as enacted by Session Laws 2009-203, s. 4, were redesignated as subdivisions (a6)(2) through (5), respectively, at the direction of the Revisor of Statutes. Also at the direction of the Revisor of Statutes, in subdivision (a6)(6) and in subsection (h), the internal reference “subdivision (1), (2), (3), or (5)” was substituted for “subdivision (1), (1a), (1b), or (5).”

Effect of Amendments.

Session Laws 2007-539, s. 2, effective March 1, 2008, rewrote the section heading; redesignated and rewrote former subsection (a) as subsection (a1); added subsections (a), (a2), and (d) through (f); and rewrote subsection (b).

Session Laws 2009-203, s. 4, effective December 1, 2009, substituted “custodial agency” for “governmental entity” throughout the section; in subsection (a), inserted “fingerprints,” “human” material that may reasonably be used to incriminate or exculpate any person in the criminal investigation,” “any” and “item of”; in subsection (a1), substituted “custodial agency” for “governmental entity in custody of evidence” in the first sentence; added present subsections (a2) through (a5); renumbered former subsection (a2) as subsection (a6) and rewrote subsection (a6); added subsection (a7); in subsection (b), in the introductory language, substituted “dispose” for “petition the court for an order allowing for disposition” and “subsection (a6)” for “subsection (a2)”; in subdivision (b)(2), substituted “counsel of record for that case, and the Office of Indigent Defense Services” for “current counsel of record, the Office of Indigent Defense Services, and the Attorney General”; in subdivision (b)(3)c., inserted “from the defendant, or his or her representative”; in subdivision (b)(3)d., in the introductory language, substituted “evidence” for “material” and rewrote subdivision (b)(3)d.3.; in subsection (d), in the introductory language, substituted “a hearing held in response to a defendant’s written request that the evidence not be destroyed in response to notice pursuant to subsection (b) of this section,” for “a hearing”, deleted subdivision (d)(2), and in subdivision (d)(3), substituted “character as to render retention impracticable or should be returned to its rightful owner” for “characteristic not usually retained by the governmental entity and cannot practically be retained by the governmental entity”; rewrote subsection (e); and added subsections (g) through (i).

Session Laws 2009-570, s. 30(a) and (b), effective August 28, 2009, substituted “custodial agency’s intent” for “governmental entity’s intent” in subdivision (b)(3)d.3., and substituted “The custodial agency” for “The governmental entity” at the beginning of the last sentence in subsection (f).

Session Laws 2012-7, ss. 1-3, effective June 7, 2012, in subsection (a1), substituted “evidence, regardless of the date of collection,” for “evidence”; in subsection (a7), substituted “is in the custodial agency’s custody. If the evidence was destroyed through court order or other written directive, the custodial agency shall provide the defendant with a copy of the court order or written directive” for “has been preserved pursuant to this section”; and added subdivisions (b)(1a) and (b)(3)d.4. For applicability, see Editor’s note.

Session Laws 2013-360, s. 17.6(f), effective July 1, 2013, substituted “Crime Laboratory” for “SBI” in subsections (a2) and (e).

Session Laws 2015-247, s. 10.(a) and (b), effective October 1, 2015, substituted “hearing, which may include any other hearing associated with the disposition of the case” for “proceeding” at the end of subdivision (a5), and added subdivision (a6)(6).

CASE NOTES

Postconviction DNA Testing. —

Defendant was not entitled to postconviction DNA testing pursuant to G.S. 15A-268 because the statute only provided for the preservation of biological evidence collected at a crime scene. State v. Turner, 239 N.C. App. 450, 768 S.E.2d 356, 2015 N.C. App. LEXIS 84 (2015).

No Right to Appeal. —

Defendant’s appeal of the trial court’s denial of his motion for post-conviction DNA testing was dismissed because neither G.S. 15A-269 nor G.S. 15A-270 allows a defendant an appeal as of right from a grant or denial of a motion for post-conviction DNA. Review by writ of certiorari was also not available to defendant because his conviction for attempted rape had already been entered and there was no statutory reason allowing a writ of certiorari regarding motions for post-conviction DNA testing. State v. Brown, 170 N.C. App. 601, 613 S.E.2d 284, 2005 N.C. App. LEXIS 1069 (2005).

Because defendant did not make any written request for an inventory under this section, it followed that the trial court did not consider or rule on such a request, and thus, there was not a ruling under this section for the appellate court to review. State v. Doisey, 240 N.C. App. 441, 770 S.E.2d 177, 2015 N.C. App. LEXIS 259 (2015).

§ 15A-269. Request for postconviction DNA testing.

  1. A defendant may make a motion before the trial court that entered the judgment of conviction against the defendant for performance of DNA testing and, if testing complies with FBI requirements and the data meets NDIS criteria, profiles obtained from the testing shall be searched and/or uploaded to CODIS if the biological evidence meets all of the following conditions:
    1. Is material to the defendant’s defense.
    2. Is related to the investigation or prosecution that resulted in the judgment.
    3. Meets either of the following conditions:
      1. It was not DNA tested previously.
      2. It was tested previously, but the requested DNA test would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.
  2. The court shall grant the motion for DNA testing and, if testing complies with FBI requirements, the run of any profiles obtained from the testing, upon its determination that:
    1. The conditions set forth in subdivisions (1), (2), and (3) of subsection (a) of this section have been met;
    2. If the DNA testing being requested had been conducted on the evidence, there exists a reasonable probability that the verdict would have been more favorable to the defendant; and
    3. The defendant has signed a sworn affidavit of innocence.
  3. If the court orders DNA testing, such testing shall be conducted by a Crime Laboratory-approved testing facility, mutually agreed upon by the petitioner and the State and approved by the court. If the parties cannot agree, the court shall designate the testing facility and provide the parties with reasonable opportunity to be heard on the issue.
  4. In accordance with rules adopted by the Office of Indigent Defense Services, the court shall appoint counsel for the person who brings a motion under this section if that person is indigent. If the petitioner has filed pro se, the court shall appoint counsel for the petitioner in accordance with rules adopted by the Office of Indigent Defense Services upon a showing that the DNA testing may be material to the petitioner’s claim of wrongful conviction.
  5. The defendant shall be responsible for bearing the cost of any DNA testing ordered under this section unless the court determines the defendant is indigent, in which event the State shall bear the costs.
  6. DNA testing ordered by the court pursuant to this section shall be done as soon as practicable. However, if the court finds that a miscarriage of justice will otherwise occur and that DNA testing is necessary in the interests of justice, the  court shall order a delay of the proceedings or execution of the sentence pending the DNA testing.
  7. Upon receipt of a motion for postconviction DNA testing, the custodial agency shall inventory the evidence pertaining to that case and provide the inventory list, as well as any documents, notes, logs, or reports relating to the items of physical evidence, to the prosecution, the petitioner, and the court.
  8. Upon receipt of a motion for postconviction DNA testing, the State shall, upon request, reactivate any victim services for the victim of the crime being investigated during the reinvestigation of the case and pendency of the proceedings.
  9. Nothing in this Article shall prohibit a convicted person and the State from consenting to and conducting postconviction DNA testing by agreement of the parties, without filing a motion for postconviction testing under this Article.

History. 2001-282, s. 4; 2007-539, s. 3; 2009-203, s. 5; 2011-326, s. 12(d); 2013-360, s. 17.6(k).

Editor’s Note.

Session Laws 2001-282, s. 6, made this section effective October 1, 2001, and applicable to evidence, records, and samples in the possession of a governmental entity on or after that date.

Effect of Amendments.

Session Laws 2007-539, s. 3, effective March 1, 2008, added subdivision (b)(3), and made minor stylistic changes.

Session Laws 2009-203, s. 5 effective December 1, 2009, in subsection (a), in the introductory language, substituted “and, if testing complies with FBI requirements and the data meets NDIS criteria, profiles obtained from the testing shall be searched and/or uploaded to CODIS if the biological evidence meets” for “of any biological evidence that meets”; in subsection (b), in the introductory language, substituted “if testing complies with FBI requirements, the run of any profiles obtained from the testing” for “of the evidence”; added subsection (b1); in subsection (c), added the last sentence; and added subsections (f) through (h).

Session Laws 2011-326, s. 12(d), effective June 27, 2011, in subsection (c), twice inserted “in accordance with rules adopted by the Office of Indigent Defense Services” or similar language.

Session Laws 2013-360, s. 17.6(k), effective July 1, 2013, substituted “a Crime Laboratory-approved” for “an SBI-approved” in subsection (b1).

CASE NOTES

Rule of lenity did not apply to this statute since it was unambiguous. State v. Gardner, 227 N.C. App. 364, 742 S.E.2d 352, 2013 N.C. App. LEXIS 526 (2013).

Motion for Appropriate Relief. —

Defendant could not raise a claim that post-conviction DNA testing yielded “favorable” results in a motion for appropriate relief more than ten days after defendant’s conviction was entered because G.S. 15A-269 and G.S. 15A-270 provided a specific procedural vehicle for such claims. State v. Howard, 247 N.C. App. 193, 783 S.E.2d 786, 2016 N.C. App. LEXIS 445 (2016).

Trial court erred in denying defendant’s request for post-conviction DNA testing and discovery because the trial court improperly denied defendant’s motion on the grounds set forth for evaluation of motions for appropriate relief; and the trial court could not supplant the analysis contemplated by this statute with the evaluation applicable to motions for appropriate relief. Because the trial court’s order did not address the requisite factors provided in this statute, the appellate court could not determine whether defendant’s motion for post-conviction DNA testing was properly denied; thus, the trial court’s order was vacated, and the matter was remanded to the trial court. State v. Shaw, 259 N.C. App. 703, 816 S.E.2d 248, 2018 N.C. App. LEXIS 484 (2018).

Where a defendant brings a motion for post-conviction DNA testing pursuant to this statute, the trial court’s task is to rule on the motion in accordance with the applicable substantive law as set forth in this statute. A trial court may not supplant the analysis contemplated by this statute with the evaluation applicable to motions for appropriate relief. State v. Shaw, 259 N.C. App. 703, 816 S.E.2d 248, 2018 N.C. App. LEXIS 484 (2018).

Appointment of Counsel. —

It was not error to deny defendant’s motion for appointment of counsel in relation to defendant’s motion for postconviction DNA testing because the statute only required such appointment if defendant showed indigence and that the requested testing was material to defendant’s defense, which defendant failed to do. State v. Turner, 239 N.C. App. 450, 768 S.E.2d 356, 2015 N.C. App. LEXIS 84 (2015).

Pro se defendant who sought postconviction testing of DNA evidence did not satisfy the necessary conditions to obtain the appointment of counsel to assist defendant in obtaining the testing because defendant failed to meet the required statutory condition that postconviction DNA testing of the biological evidence was material to the defense and failed to satisfy the lesser burden to show that DNA testing may have be material to defendant’s claim of wrongful conviction. State v. Byers, 375 N.C. 386, 847 S.E.2d 735, 2020 N.C. LEXIS 840 (2020).

Rules of Evidence Applicable. —

North Carolina Rules of Evidence applied to motions for post-conviction DNA testing because (1) the motion was a procedural means for obtaining relief, and a trial court conducted a hearing on the motion, so the motion resulted in a proceeding, and (2) the motion was not listed among the exceptions in G.S. 8C-1, N.C. R. Evid. 1101(b) to the applicability of the Rules of Evidence. State v. Foster, 222 N.C. App. 199, 729 S.E.2d 116, 2012 N.C. App. LEXIS 940 (2012).

Defendant’s Burden. —

In proceedings on a defendant’s motion for post-conviction DNA testing, a defendant had the burden to show the biological evidence on which defendant sought testing was material to defendant’s defense, pursuant to G.S. 15A-269(a)(1). State v. Foster, 222 N.C. App. 199, 729 S.E.2d 116, 2012 N.C. App. LEXIS 940 (2012).

Defendant carries the burden to make the showing of materiality required by this section and this burden requires more than the conclusory statement that the ability to conduct the requested DNA testing is material to the defendant’s defense; inmate was not entitled to appointed counsel since he made a conclusory statement regarding the materiality of the requested DNA testing and provided no explanation as to why the testing was material to his defense. State v. Gardner, 227 N.C. App. 364, 742 S.E.2d 352, 2013 N.C. App. LEXIS 526 (2013).

Brady Materiality Standard. —

Given the similarities in the Brady materiality standard and the standard contained in G.S. 15A-269(b)(2), it appears the General Assembly adopted the Brady standard to guide a trial court in determining whether a defendant’s request for postconviction DNA testing should be allowed. State v. Lane, 370 N.C. 508, 809 S.E.2d 568, 2018 N.C. LEXIS 60 (2018).

Evidentiary Hearing Not Required. —

Trial court was not required to conduct an evidentiary hearing on defendant’s postconviction motion for DNA testing because defendant failed to show how DNA testing would have produced material evidence; that is, defendant failed to show how such testing would have produced evidence sufficient to create a reasonable probability of a different result, given the evidence already in the trial record. State v. Floyd, 237 N.C. App. 300, 765 S.E.2d 74, 2014 N.C. App. LEXIS 1141 (2014).

Defendant’s Failure to Meet Burden to Show Materiality. —

When denying defendant’s motion for post-conviction DNA testing, it was error to admit and consider a prosecutor’s hearsay outline of defendant’s expected testimony in another case but the error was harmless because defendant did not meet defendant’s burden to show the evidence would be material, as was required by G.S. 15A-269(a)(1). State v. Foster, 222 N.C. App. 199, 729 S.E.2d 116, 2012 N.C. App. LEXIS 940 (2012).

It was not error to deny defendant’s motion for postconviction DNA testing because defendant’s conclusory statement that such testing was material to defendant’s defense did not meet defendant’s burden to show by a preponderance of the evidence how or why the testing was material to defendant’s defense. State v. Turner, 239 N.C. App. 450, 768 S.E.2d 356, 2015 N.C. App. LEXIS 84 (2015).

Trial court did not err in denying defendant’s motion for postconviction DNA testing and appointment of counsel because defendant failed to meet his burden of showing materiality because defendant’s contention that there was a very reasonable probability that the DNA testing would have shown that defendant was not the one who had sex with the alleged victim and, thus, completely contradicted the judgment convicting defendant for statutory rape was conclusory and incomplete; and defendant merely restated pertinent parts of the statute. State v. Cox, 245 N.C. App. 307, 781 S.E.2d 865, 2016 N.C. App. LEXIS 129 (2016).

Denial of petitioner’s motion for postconviction DNA testing was affirmed because he failed to prove materiality, as the additional overwhelming evidence of his guilt, the dearth of evidence pointing to a second perpetrator, and the inability of forensic testing to determine whether the hair samples at issue were relevant to establish a third party was involved, created an insurmountable hurdle to the success of defendant’s argument. State v. Lane, 370 N.C. 508, 809 S.E.2d 568, 2018 N.C. LEXIS 60 (2018).

There was not a reasonable probability that the DNA testing of hair samples would have changed the jury’s recommendation of death, as the jury found two aggravating circumstances under G.S. 15A-2000(e)(5), (9), which the jury could have found even if it believed petitioner was merely an accomplice, and thus no reasonable probability existed that a jury would have failed to convict petitioner or would not recommend the death penalty. State v. Lane, 370 N.C. 508, 809 S.E.2d 568, 2018 N.C. LEXIS 60 (2018).

No Need for Inventory After Right to Appeal Abandoned. —

Since defendant abandoned his right to appellate review of the denial of his request for DNA testing, there was no need for the inventory required by this section. State v. Doisey, 240 N.C. App. 441, 770 S.E.2d 177, 2015 N.C. App. LEXIS 259 (2015).

No Right to Appeal. —

Defendant’s appeal of the trial court’s denial of his motion for post-conviction DNA testing was dismissed because neither G.S. 15A-269 nor G.S. 15A-270 allows a defendant an appeal as of right from a grant or denial of a motion for post-conviction DNA. Review by writ of certiorari was also not available to defendant because his conviction for attempted rape had already been entered and there was no statutory reason allowing a writ of certiorari regarding motions for post-conviction DNA testing. State v. Brown, 170 N.C. App. 601, 613 S.E.2d 284, 2005 N.C. App. LEXIS 1069 (2005).

No statutory right of appeal exists from a trial court’s denial of a motion for post-conviction DNA testing. State v. Brown, 170 N.C. App. 601, 613 S.E.2d 284, 2005 N.C. App. LEXIS 1069 (2005).

Right to Appeal Upheld. —

In a case in which defendant’s G.S. 15A-269 motion for post-conviction DNA testing was granted, a hearing was held pursuant to G.S. 15A-270, and defendant appealed the trial court’s denial of relief, the appellate court lacked jurisdiction. While G.S. 15A-270.1 provided defendant with the right to appeal the denial of his motion for post-conviction DNA testing, the North Carolina General Assembly had not provided him with the right to appeal a denial of relief, and the North Carolina Constitution mandated that the North Carolina General Assembly prescribe by general law the scope of the jurisdiction of the North Carolina Court of Appeals. State v. Norman, 202 N.C. App. 329, 688 S.E.2d 512, 2010 N.C. App. LEXIS 195 (2010).

Frivolous Appeal. —

Defendant’s appeal was wholly frivolous because his averments were not relevant to whether the trial court erred in denying his motion to locate and preserve evidence and for postconviction DNA testing under the statute; defendant’s argument was also wholly at odds with the theory presented in his motion to the trial court, i.e., that further DNA testing would prove he was not the perpetrator of the crime. State v. Velasquez-Cardenas, 259 N.C. App. 211, 815 S.E.2d 9, 2018 N.C. App. LEXIS 378 (2018).

Denial of Motion for Testing Upheld. —

Motion for DNA testing under G.S. 15A-269 was properly denied, as defendant’s contention he was in close proximity to the victim at some point, even if supported by DNA evidence, did not minimize the significance of or otherwise refute the substantial evidence he fired a gun into occupied property and that the victim suffered a fatal gunshot wound as a result. There was no reasonable probability that the disclosure of DNA evidence in support of his contention would have resulted in a different outcome in the jury’s deliberation. State v. Hewson, 220 N.C. App. 117, 725 S.E.2d 53, 2012 N.C. App. LEXIS 508 (2012).

This statute contains no requirement that the trial court make specific findings of facts; the trial court’s denial of DNA testing was sufficient since it stated that it reviewed the allegations in defendant’s motion, cited this statute and concluded that the inmate failed to show the existence of any grounds for relief. State v. Gardner, 227 N.C. App. 364, 742 S.E.2d 352, 2013 N.C. App. LEXIS 526 (2013).

Trial court did not err in denying defendant’s postconviction motion for DNA testing because there was not a reasonable probability that the results from any DNA testing would have resulted in a more favorable outcome in a trial, based on the overwhelming evidence in the record pointing to defendant’s guilt and the fact that DNA testing would not have revealed who brought the items to be tested into the utility shop where the body of defendant’s wife was found or when they were left there. State v. Floyd, 237 N.C. App. 300, 765 S.E.2d 74, 2014 N.C. App. LEXIS 1141 (2014).

Trial court properly denied defendant’s motion for post-conviction DNA testing because, while the results from DNA testing might be considered “relevant” had they been offered at trial, they were not “material” in the postconviction setting inasmuch as defendant failed to show that there was biological evidence related to his case that would be material to his defense, he swore under oath that he was in fact guilty, there was no credible evidence that he was denied effective assistance of counsel at the time he entered his plea, and the lack of DNA on items recovered from the victim over a month after defendant’s last alleged contact with her would not conclusively prove that he was not involved in a sexual “relationship” with her. State v. Randall, 259 N.C. App. 885, 817 S.E.2d 219, 2018 N.C. App. LEXIS 541 (2018).

Although defendant was not disqualified from seeking post-conviction DNA testing merely because he pled guilty, defendant failed to show how it was reasonably probable that he would not been convicted of at least second-degree murder based on the results of the DNA and fingerprint testing because the presence of another’s DNA or fingerprints on the shell casings/projectile would not necessarily exclude defendant’s involvement in the crime since the presence of another’s DNA could have been explained by the fact someone else handled them before the crime. State v. Alexander, 271 N.C. App. 77, 843 S.E.2d 294, 2020 N.C. App. LEXIS 296 (2020), aff'd, 2022- NCSC-26, 2022 N.C. LEXIS 237 (N.C. 2022).

Standard of Review. —

In reviewing a denial of a motion for postconviction DNA testing, findings of fact are binding on the court if they are supported by competent evidence and may not be disturbed absent an abuse of discretion, and the lower court’s conclusions of law are reviewed de novo; a trial court’s determination of whether defendant’s request for postconviction DNA testing is material to his defense is a conclusion of law, which is reviewed de novo. State v. Lane, 370 N.C. 508, 809 S.E.2d 568, 2018 N.C. LEXIS 60 (2018).

§ 15A-270. Post-test procedures.

  1. Notwithstanding any other provision of law, upon receiving the results of the DNA testing conducted under G.S. 15A-269, the court shall conduct a hearing to evaluate the results and to determine if the results are unfavorable or favorable to the defendant.
  2. If the results of DNA testing conducted under this section are unfavorable to the defendant, the court shall dismiss the motion and, in the case of a defendant who is not indigent, shall assess the defendant for the cost of the testing.
  3. If the results of DNA testing conducted under this section are favorable to the defendant, the court shall enter any order that serves the interests of justice, including an order that does any of the following:
    1. Vacates and sets aside the judgment.
    2. Discharges the defendant, if the defendant is in custody.
    3. Resentences the defendant.
    4. Grants a new trial.

History. 2001-282, s. 4.

Editor’s Note.

Session Laws 2001-282, s. 6, made this section effective October 1, 2001, and applicable to evidence, records, and samples in the possession of a governmental entity on or after that date.

Legal Periodicals.

For article, “N.C. Innocence Inquiry Commission’s First Decade: Impressive Successes and Lessons Learned,” see 94 N.C.L. Rev. 1725 (2016).

CASE NOTES

Postconviction DNA Testing. —

Defendant was not entitled to postconviction DNA testing pursuant to G.S. 15A-270 because the statute only provided post-test procedures after a trial court granted a motion for postconviction DNA testing. State v. Turner, 239 N.C. App. 450, 768 S.E.2d 356, 2015 N.C. App. LEXIS 84 (2015).

Motion for Appropriate Relief. —

Defendant could not raise a claim that post-conviction DNA testing yielded “favorable” results in a motion for appropriate relief more than ten days after defendant’s conviction was entered because G.S. 15A-269 and G.S. 15A-270 provided a specific procedural vehicle for such claims. State v. Howard, 247 N.C. App. 193, 783 S.E.2d 786, 2016 N.C. App. LEXIS 445 (2016).

No Right to Appeal. —

Defendant’s appeal of the trial court’s denial of his motion for post-conviction DNA testing was dismissed because neither G.S. 15A-269 nor G.S. 15A-270 allows a defendant an appeal as of right from a grant or denial of a motion for post-conviction DNA. Review by writ of certiorari was also not available to defendant because his conviction for attempted rape had already been entered and there was no statutory reason allowing a writ of certiorari regarding motions for post-conviction DNA testing. State v. Brown, 170 N.C. App. 601, 613 S.E.2d 284, 2005 N.C. App. LEXIS 1069 (2005).

In a case in which defendant’s G.S. 15A-269 motion for post-conviction DNA testing was granted, a hearing was held pursuant to G.S. 15A-270, and defendant appealed the trial court’s denial of relief, the appellate court lacked jurisdiction. While G.S. 15A-270.1 provided defendant with the right to appeal the denial of his motion for post-conviction DNA testing, the North Carolina General Assembly had not provided him with the right to appeal a denial of relief, and the North Carolina Constitution mandated that the North Carolina General Assembly prescribe by general law the scope of the jurisdiction of the North Carolina Court of Appeals. State v. Norman, 202 N.C. App. 329, 688 S.E.2d 512, 2010 N.C. App. LEXIS 195 (2010).

§ 15A-270.1. Right to appeal denial of defendant’s motion for DNA testing.

The defendant may appeal an order denying the defendant’s motion for DNA testing under this Article, including by an interlocutory appeal. The court shall appoint counsel in accordance with rules adopted by the Office of Indigent Defense Services upon a finding of indigency.

History. 2007-539, s. 4; 2009-203, s. 6; 2011-326, s. 12(e).

Editor’s Note.

Session Laws 2007-539, s. 5, made this section effective March 1, 2008.

Effect of Amendments.

Session Laws 2009-203, s. 6, effective December 1, 2009, added the last sentence.

Session Laws 2011-326, s. 12(e), effective June 27, 2011, inserted “in accordance with rules adopted by the Office of Indigent Defense Services.”

CASE NOTES

Relationship to Other Laws. —

In a case in which defendant’s G.S. 15A-269 motion for post-conviction DNA testing was granted, a hearing was held pursuant to G.S. 15A-270, and defendant appealed the trial court’s denial of relief, the appellate court lacked jurisdiction. While G.S. 15A-270.1 provided defendant with the right to appeal the denial of his motion for post-conviction DNA testing, the North Carolina General Assembly had not provided him with the right to appeal a denial of relief, and the North Carolina Constitution mandated that the North Carolina General Assembly prescribe by general law the scope of the jurisdiction of the North Carolina Court of Appeals. State v. Norman, 202 N.C. App. 329, 688 S.E.2d 512, 2010 N.C. App. LEXIS 195 (2010).

Anders Procedures Apply to Appeals Pursuant to Statute. —

Defendant’s counsel had the right to proceed pursuant to Anders procedures; precedent establishes that the court of appeals has both jurisdiction and the authority to decide whether Anders-type review should be prohibited, allowed, or required in appeals from the statute, and Anders procedures apply to appeals pursuant to the statute. State v. Velasquez-Cardenas, 259 N.C. App. 211, 815 S.E.2d 9, 2018 N.C. App. LEXIS 378 (2018).

Because the General Assembly has created a general right of appeal from the denial of motions made pursuant to the DNA Database and Databank Act of 1993, the court of appeals clearly has jurisdiction to consider a request for Anders-type review made by a defendant’s appellate counsel; absent some superseding statute, holding, or rule, the court of appeals has the discretion to decide whether to conduct the review requested by a defendant’s appellate counsel. State v. Velasquez-Cardenas, 259 N.C. App. 211, 815 S.E.2d 9, 2018 N.C. App. LEXIS 378 (2018).

Defendant’s counsel had the right to proceed pursuant to Anders procedures because the fact that counsel filed an Anders brief was sufficient to raise the issue and present it for appellate review; defendant’s brief requesting Anders review and the State’s brief contending that the court of appeals could apply Anders review to the appeal placed the issue squarely before the court of appeals and met the requirements of N.C.R. App. P. 28. State v. Velasquez-Cardenas, 259 N.C. App. 211, 815 S.E.2d 9, 2018 N.C. App. LEXIS 378 (2018).

Motion for Appropriate Relief. —

Defendant could not raise a claim that post-conviction DNA testing yielded “favorable” results in a motion for appropriate relief more than ten days after defendant’s conviction was entered because G.S. 15A-269 and G.S. 15A-270 provided a specific procedural vehicle for such claims. State v. Howard, 247 N.C. App. 193, 783 S.E.2d 786, 2016 N.C. App. LEXIS 445 (2016).

Frivolous Appeal. —

Defendant’s appeal was wholly frivolous because his averments were not relevant to whether the trial court erred in denying his motion to locate and preserve evidence and for postconviction DNA testing under the statute; defendant’s argument was also wholly at odds with the theory presented in his motion to the trial court, i.e., that further DNA testing would prove he was not the perpetrator of the crime. State v. Velasquez-Cardenas, 259 N.C. App. 211, 815 S.E.2d 9, 2018 N.C. App. LEXIS 378 (2018).

Article 14. Nontestimonial Identification.

Official Commentary

This Article provides an important investigative procedure not presently available under North Carolina statutes. Under this Article, a solicitor may make application to a judge for an order requiring suspects to submit to certain nontestimonial identification procedures such as fingerprints, measurements, blood and urine specimens, saliva, hair and voice samples, handwriting exemplars, photographs and lineups. To obtain such an order the solicitor must show that there is probable cause to believe that a crime punishable by more than one year’s imprisonment has been committed and that there are reasonable grounds to suspect that one or more persons committed the offense. If a specific nontestimonial identification procedure will be of material aid in determining if the suspect committed the offense, the judge may issue an order requiring the person named to appear and submit to designated procedures. If the person named in the order either fails to appear or refuses to submit to the designated procedures, he may be punished for contempt of the court which issued the order.

The Commission inserted a number of significant safeguards to accompany this procedure, including the following:

  1. The order must be served at least 72 hours in advance of the time designated for the procedures (unless the judge finds that the nature of the evidence makes it likely that the delay will adversely affect its probative value). G.S. 15A-274.
  2. The person named may seek modification of the time and place designated in the order. G.S. 15A-275.
  3. No one may be detained longer than is necessary to accomplish the procedures. G.S. 15A-279(c).
  4. Extraction of any bodily fluid must be conducted by a qualified member of the health professions; the judge may order medical supervision for any of the other procedures. G.S. 15A-279(a).
  5. No unreasonable or unnecessary force may be used in conducting the procedures. G.S. 15A-279(b).
  6. The person named has the right to have counsel present during any procedures conducted under this section and to have counsel appointed if he cannot afford to retain one. G.S. 15A-279(d). The order must inform the named person of these rights. G.S. 15A-278(5).
  7. No statement made by the named person while the procedures are being conducted may be used in evidence against him unless his attorney was actually present at the time the statement was made. G.S. 15A-279(d).
  8. The subject of the procedures must be given a copy of the results as soon as they are available. G.S. 15A-282.

In two recent decisions, the Supreme Court of the United States held that the compelled production of handwriting specimens and voice samples under orders of a grand jury do not infringe any legitimate Fourth or Fifth Amendment interests. United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973). These decisions contain substantial indications that procedures such as those recommended by the Commission in the nontestimonial identification Article are constitutionally sound, and Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969) contains a dictum inviting use of a procedure similar to this. The Article also permits defendants charged with serious crimes to initiate such procedures by the State.

Note on Official Commentary.

The “Official Commentary” under this Article appears as originally drafted by the Criminal Code Commission and does not reflect amendments or changes in the law since the enactment of Session Laws 1973, c. 1286.

§ 15A-271. Authority to issue order.

A nontestimonial identification order authorized by this Article may be issued by any judge upon request of a prosecutor. As used in this Article, “nontestimonial identification” means identification by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, handwriting exemplars, voice samples, photographs, and lineups or similar identification procedures requiring the presence of a suspect.

History. 1973, c. 1286, s. 1; 1975, c. 166, s. 27.

Legal Periodicals.

For critical analysis of this article, see 12 Wake Forest L. Rev. 387 (1976).

For note, “DNA Typing: A New Investigatory Tool,” see 1989 Duke L.J. 474.

For note, “The Limits of Good Faith: Heien v. North Carolina and Other Fourth Amendment Cases Through the Lens of State v. Carter and the North Carolina Constitution” see 13 Elon L. Rev. 267 (2020).

CASE NOTES

This Article was enacted in response to dictum contained in Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969) inviting the use of narrowly circumscribed procedures for obtaining the fingerprints of individuals for whom there is no probable cause to arrest. State v. Welch, 316 N.C. 578, 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998).

Purpose of Article. —

The obvious purpose and intent of this Article, assuming its constitutionality, is to permit the examination of a suspect pursuant to nontestimonial identification order only if the results of such examination will be of material aid in determining whether such suspect actually committed the offense charged, assuming that a crime punishable by imprisonment for more than one year had been committed by some person. Manifestly, the focus of these statutes is identification of the suspect as the perpetrator, not a determination of whether the crime has been committed. State v. Whaley, 58 N.C. App. 233, 293 S.E.2d 284, 1982 N.C. App. LEXIS 2727 (1982).

Article Inapplicable to In-Custody Accused. —

A construction of G.S. 15A-272, 15A-274, 15A-276 and 15A-502 so as to achieve a logical relationship and to effectuate apparent legislative intent mandates that this Article applies only to suspects and accused persons before arrest, and persons formally charged and arrested who have been released from custody pending trial. The Article does not apply to an in-custody accused. State v. Irick, 291 N.C. 480, 231 S.E.2d 833, 1977 N.C. LEXIS 1217 (1977); State v. Thompson, 37 N.C. App. 651, 247 S.E.2d 235, 1978 N.C. App. LEXIS 2826 (1978); State v. Norris, 77 N.C. App. 525, 335 S.E.2d 764, 1985 N.C. App. LEXIS 4173 (1985), disapproved, In re Stallings, 318 N.C. 565, 350 S.E.2d 327, 1986 N.C. LEXIS 2731 (1986).

This Article does not apply to an in-custody accused and this restrictive interpretation applies even to a defendant in custody on other charges at the time of the lineup. State v. Puckett, 46 N.C. App. 719, 266 S.E.2d 48, 1980 N.C. App. LEXIS 2918 (1980).

Although this section does not apply to an in-custody defendant, it does not follow that a trial judge is without authority to issue a nontestimonial identification order where the defendant is in custody. State v. Vereen, 312 N.C. 499, 324 S.E.2d 250, 1985 N.C. LEXIS 1491, cert. denied, 471 U.S. 1094, 105 S. Ct. 2170, 85 L. Ed. 2d 526, 1985 U.S. LEXIS 3022 (1985).

This Article applies only to suspects and accused persons before arrest, and persons formally charged and arrested, who have been released from custody pending trial. The statute does not apply to an in-custody accused. State v. Welch, 316 N.C. 578, 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998); State v. Carter, 322 N.C. 709, 370 S.E.2d 553, 1988 N.C. LEXIS 477 (1988).

Article Permits Investigation Where Basis for Lawful Arrest Lacking. —

This Article provides an investigative procedure, not previously available in this State, for use in cases where there are reasonable grounds to suspect that a particular person committed an offense punishable by imprisonment for more than one year but where there is yet lacking a sufficient basis for making a lawful arrest. State v. McDonald, 32 N.C. App. 457, 232 S.E.2d 467, 1977 N.C. App. LEXIS 1971, cert. denied, 292 N.C. 469, 233 S.E.2d 925, 1977 N.C. LEXIS 1126 (1977).

The thrust of this Article is to provide the State with a valuable new investigative tool to compel the presence of unwilling suspects for nontestimonial identification procedures, even though insufficient probable cause exists to permit their arrest. State v. Watson, 294 N.C. 159, 240 S.E.2d 440, 1978 N.C. LEXIS 1193 (1978).

Unindicted plaintiffs, who were subject to a non-testimonial order, adequately alleged a seizure and a search of their persons implicating their Fourth Amendment rights because they claimed they were unconstitutionally seized when they were required to surrender themselves, submitted to cheek swabbings to obtain DNA samples, had mug shots taken, and disrobed, pursuant to G.S. 15A-271. McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 2011 U.S. Dist. LEXIS 34839 (M.D.N.C. 2011), aff'd in part and rev'd in part, 703 F.3d 636, 2012 U.S. App. LEXIS 25660 (4th Cir. 2012).

Consent of Defendant to Identification Procedures. —

It was unnecessary for the police to utilize the procedures in this Article allowing involuntary detention for nontestimonial identification where the defendant voluntarily participated in the pretrial confrontation. State v. Watson, 294 N.C. 159, 240 S.E.2d 440, 1978 N.C. LEXIS 1193 (1978).

Express Waiver of Right to Counsel Held Not Required. —

In a prosecution for first-degree murder, the trial court’s denial of defendant’s motion to suppress nontestimonial identification evidence was without error where, pursuant to an order of the trial court, fingernail scrapings, samples of defendants head and pubic hair, saliva samples, blood samples, and photographs of any wounds on defendant’s body were taken; the order stated defendant’s right to counsel; the State stipulated that nothing defendant said during the procedure would be offered into evidence; defendant was fully advised of his constitutional right to the presence of counsel; and the State was not in violation of any provisions under this Article, by not procuring an express waiver from defendant, as the statute does not require an express waiver of the right to have counsel present at a nontestimonial identification procedure. State v. Temple, 302 N.C. 1, 273 S.E.2d 273, 1981 N.C. LEXIS 1017 (1981).

Blood Sample Taken from Defendant Confined in County Jail. —

Where defendant had been indicted for first-degree murder and was in custody at the county jail when nontestimonial identification order was issued upon the State’s motion, it was error for the trial court to issue the order, and defendant’s right under U.S. Const., Amend. IV to be free from unreasonable searches and seizures was violated when sample of his blood was drawn pursuant to this order in the absence of a search warrant. State v. Welch, 316 N.C. 578, 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998) (declining, however, to apply the exclusionary rule to this good faith violation of U.S. Const., Amend. IV) .

While gunshot residue evidence is nontestimonial identification, the evidence was still admissible where probable cause—based on the behavior and comments of the defendant coupled with the officer’s knowledge of her stormy marriage—and exigent circumstances—the need for testing within four hours of the homicide—existed at the time of the gunshot residue test, and the warrantless search was, therefore, valid. State v. Coplen, 138 N.C. App. 48, 530 S.E.2d 313, 2000 N.C. App. LEXIS 544, cert. denied, 352 N.C. 677, 545 S.E.2d 438, 2000 N.C. LEXIS 806 (2000).

Hair Sample Admitted. —

Trial court did not err in denying defendant’s motion to suppress evidence of hair samples taken in compliance with a nontestimonial identification order entered pursuant to this section. State v. Payne, 328 N.C. 377, 402 S.E.2d 582, 1991 N.C. LEXIS 263 (1991).

OPINIONS OF ATTORNEY GENERAL

Article Not Exclusive of Other Procedures. — After arrest of a defendant based upon probable cause, a law-enforcement officer may utilize normal investigative procedures including fingerprinting, photographing, lineups, etc., and need not follow exclusively the nontestimonial identification procedures of this Article. See opinion of Attorney General to Mr. Anthony Brannon, 45 N.C. Op. Att'y Gen. 60 (1975).

§ 15A-272. Time of application; additional investigative procedures not precluded.

A request for a nontestimonial identification order may be made prior to the arrest of a suspect or after arrest and prior to trial. Nothing in this Article shall preclude such additional investigative procedures as are otherwise permitted by law.

History. 1973, c. 1286, s. 1.

Legal Periodicals.

For note, “DNA Typing: A New Investigatory Tool,” see 1989 Duke L.J. 474.

CASE NOTES

Juvenile Procedure Compared. —

Under this section, the adult statute, time of application focuses on the arrest of the suspect, while G.S. 7A-597 [see now G.S. 7B-2104] focuses on taking the juvenile into custody, indicating an expanded time period when procedural protection of juveniles is necessary. State v. Norris, 77 N.C. App. 525, 335 S.E.2d 764, 1985 N.C. App. LEXIS 4173 (1985), disapproved, In re Stallings, 318 N.C. 565, 350 S.E.2d 327, 1986 N.C. LEXIS 2731 (1986).

Search Warrants. —

In addition to a nontestimonial identification order pursuant to this section and G.S. 15A-242, a search warrant is a proper method to obtain nontestimonial identification evidence from a defendant. State v. McLean, 47 N.C. App. 672, 267 S.E.2d 695, 1980 N.C. App. LEXIS 3154 (1980).

While gunshot residue evidence is nontestimonial identification, the evidence was still admissible where probable cause—based on the behavior and comments of the defendant coupled with the officer’s knowledge of her stormy marriage—and exigent circumstances—the need for testing within four hours of the homicide—existed at the time of the gunshot residue test, and the warrantless search was, therefore, valid. State v. Coplen, 138 N.C. App. 48, 530 S.E.2d 313, 2000 N.C. App. LEXIS 544, cert. denied, 352 N.C. 677, 545 S.E.2d 438, 2000 N.C. LEXIS 806 (2000).

§ 15A-273. Basis for order.

An order may issue only on an affidavit or affidavits sworn to before the judge and establishing the following grounds for the order:

  1. That there is probable cause to believe that a felony offense, or a Class A1 or Class 1 misdemeanor offense has been committed;
  2. That there are reasonable grounds to suspect that the person named or described in the affidavit committed the offense; and
  3. That the results of specific nontestimonial identification procedures will be of material aid in determining whether the person named in the affidavit committed the offense.

History. 1973, c. 1286, s. 1; 1997-80, s. 14.

Legal Periodicals.

For a discussion of this article in the context of constitutional requirements, see 12 Wake Forest L. Rev. 387 (1976).

For note, “DNA Typing: A New Investigatory Tool,” see 1989 Duke L.J. 474.

CASE NOTES

Blood Sample Taken from Defendant Confined in County Jail. —

Where defendant had been indicted for first-degree murder and was in custody at the county jail when nontestimonial identification order was issued upon the State’s motion, it was error for the trial court to issue the order, and defendant’s right under U.S. Const., Amend. IV to be free from unreasonable searches and seizures was violated when the sample of his blood was drawn pursuant to this order in the absence of a search warrant. State v. Welch, 316 N.C. 578, 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998) (declining, however, to apply the exclusionary rule to this good faith violation of U.S. Const., Amend. IV) .

Construction with G.S. 15A-242(4). —

Where probable cause existed to support issuance of the search warrant for defendant’s hair, saliva, and blood pursuant to G.S. 15A-242(4), the State did not violate the defendant’s rights, under N.C. Const., Art. I, § 20, by failing to obtain a nontestimonial identification order, pursuant to this section, or to provide defendant with the right to counsel during the execution of the search warrant, under G.S. 15A-279(d). State v. Grooms, 353 N.C. 50, 540 S.E.2d 713, 2000 N.C. LEXIS 895 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54, 2001 U.S. LEXIS 5838 (2001).

Sufficient Affidavit. —

Affidavit submitted to obtain an order for non-testimonial identification evidence from defendant was sufficient because it was reasonable to infer that defendant met the physical description of the perpetrator given by the victims, a Peeping Tom was reported at the location of one of the rapes, an officer saw a man squatting next to an air conditioner unit there wearing a light gray or blue windbreaker and blue jeans who ran when he saw the officer, and defendant was stopped nearby wearing a light blue windbreaker and blue jeans; therefore, defendant was a suspect based on more than a minimal amount of objective justification and more than an unparticularized hunch. State v. Pearson, 356 N.C. 22, 566 S.E.2d 50, 2002 N.C. LEXIS 545 (2002), cert. denied, 537 U.S. 1121, 123 S. Ct. 856, 154 L. Ed. 2d 802, 2003 U.S. LEXIS 77 (2003).

Although police officers’ non-testimonial order affidavits pursuant to G.S. 15A-273 contained false statements, the corrected affidavits clearly contained sufficient factual bases to establish both probable cause that a rape was committed and reasonable grounds that the named persons committed the rape, as required under G.S. 15A-273; the court could not say that the false statements were material. Evans v. Chalmers, 703 F.3d 636, 2012 U.S. App. LEXIS 25660 (4th Cir. 2012), cert. denied, 571 U.S. 822, 134 S. Ct. 98, 187 L. Ed. 2d 33, 2013 U.S. LEXIS 5296 (2013), cert. denied, 571 U.S. 1015, 134 S. Ct. 617, 187 L. Ed. 2d 409, 2013 U.S. LEXIS 8076 (2013).

§ 15A-274. Issuance of order.

Upon a showing that the grounds specified in G.S. 15A-273 exist, the judge may issue an order requiring the person named or described with reasonable certainty in the affidavit to appear at a designated time and place and to submit to designated nontestimonial identification procedures. Unless the nature of the evidence sought makes it likely that delay will adversely affect its probative value, or when it appears likely that the person named in the order may destroy, alter, or modify the evidence sought or may not appear, the order must be served at least 72 hours before the time designated for the nontestimonial identification procedure.

History. 1973, c. 1286, s. 1; 1977, c. 832, s. 1.

Legal Periodicals.

For note, “DNA Typing: A New Investigatory Tool,” see 1989 Duke L.J. 474.

CASE NOTES

Blood Sample Taken from Defendant Confined in County Jail. —

Where defendant had been indicted for first-degree murder and was in custody at the county jail when nontestimonial identification order was issued upon the State’s motion, it was error for the trial court to issue the order, and defendant’s right under U.S. Const., Amend. IV to be free from unreasonable searches and seizures was violated when the sample of his blood was drawn pursuant to this order in the absence of a search warrant. State v. Welch, 316 N.C. 578, 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998) (declining, however, to apply the exclusionary rule to this good faith violation of U.S. Const., Amend. IV) .

§ 15A-275. Modification of order.

At the request of a person ordered to appear, the judge may modify the order with respect to time and place of appearance whenever it appears reasonable under the circumstances to do so.

History. 1973, c. 1286, s. 1.

§ 15A-276. Failure to appear.

Any person who fails without adequate excuse to obey an order to appear served upon him pursuant to this Article may be held in contempt of the court which issued the order.

History. 1973, c. 1286, s. 1.

§ 15A-277. Service of order.

An order to appear pursuant to this Article may be served by a law-enforcement officer. The order must be served upon the person named or described in the affidavit by delivery of a copy to him personally. The order must be served at least 72 hours in advance of the time of compliance, unless the judge issuing the order has determined, in accordance with G.S. 15A-274, that delay will adversely affect the probative value of the evidence sought or when it appears likely that the person named in the order may destroy, alter, or modify the evidence sought, or may not appear.

History. 1973, c. 1286, s. 1; 1977, c. 832, s. 2.

CASE NOTES

Service of Order. —

Under this section, an order to submit to nontestimonial identification procedures must be served at least 72 hours in advance of the time of compliance and may be served by a law-enforcement officer. State v. Young, 317 N.C. 396, 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

Fact that service of a nontestimonial identification order occurs subsequent to invocation of right to counsel does not affect the routine nature of the service of the order, nor does it constitute the initiation of conversation. State v. Young, 317 N.C. 396, 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

§ 15A-278. Contents of order.

An order to appear must be signed by the judge and must state:

  1. That the presence of the person named or described in the affidavit is required for the purpose of permitting nontestimonial identification procedures in order to aid in the investigation of the offense specified therein;
  2. The time and place of the required appearance;
  3. The nontestimonial identification procedures to be conducted, the methods to be used, and the approximate length of time such procedures will require;
  4. The grounds to suspect that the person named or described in the affidavit committed the offense specified therein;
  5. That the person is entitled to be represented by counsel at the procedure, and to the appointment of counsel if he cannot afford to retain one;
  6. That the person will not be subjected to any interrogation or asked to make any statement during the period of his appearance except that required for voice identification;
  7. That the person may request the judge to make a reasonable modification of the order with respect to time and place of appearance, including a request to have any nontestimonial identification procedure other than a lineup conducted at his place of residence; and
  8. That the person, if he fails to appear, may be held in contempt of court.

History. 1973, c. 1286, s. 1.

Legal Periodicals.

For discussion of this article in the context of constitutional requirements, see 12 Wake Forest L. Rev. 387 (1976).

For note, “DNA Typing: A New Investigatory Tool,” see 1989 Duke L.J. 474.

CASE NOTES

Subdivision (5) Inapplicable Where Defendant Arrested on Misdemeanor Charge. —

The provisions of subdivision (5) of this section were not applicable where the defendant was legally arrested on a misdemeanor charge, and therefore could be photographed without the aid of the nontestimonial order. State v. Carson, 296 N.C. 31, 249 S.E.2d 417, 1978 N.C. LEXIS 1157 (1978).

§ 15A-279. Implementation of order.

  1. Nontestimonial identification procedures may be conducted by any law-enforcement officer or other person designated by the judge issuing the order. The extraction of any bodily fluid must be conducted by a qualified member of the health professions and the judge may require medical supervision for any other test ordered pursuant to this Article when he considers such supervision necessary.
  2. In conducting authorized identification procedures, no unreasonable or unnecessary force may be used.
  3. No person who appears under an order of appearance issued under this Article may be detained longer than is reasonably necessary to conduct the specified nontestimonial identification procedures, and in no event for longer than six hours, unless he is arrested for an offense.
  4. Any such person is entitled to have counsel present and must be advised prior to being subjected to any nontestimonial identification procedures of his right to have counsel present during any nontestimonial identification procedure and to the appointment of counsel if he cannot afford to retain counsel. Appointment of counsel shall be in accordance with rules adopted by the Office of Indigent Defense Services. No statement made during nontestimonial identification procedures by the subject of the procedures shall be admissible in any criminal proceeding against him, unless his counsel was present at the time the statement was made.
  5. Any person who resists compliance with the authorized nontestimonial identification procedures may be held in contempt of the court which issued the order pursuant to the provisions of G.S. 5A-12(a) and G.S. 5A-21(b).
  6. A nontestimonial identification order may not be issued against a person previously subject to a nontestimonial identification order unless it is based on different evidence which was not reasonably available when the previous order was issued.
  7. Resisting compliance with a nontestimonial identification order is not itself grounds for finding probable cause to arrest the suspect, but it may be considered with other evidence in making the determination whether probable cause exists.

History. 1973, c. 1286, s. 1; 1977, c. 711, s. 20; 2000-144, s. 28.

Cross References.

For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.

Legal Periodicals.

For discussion of this article in the context of constitutional requirements, see 12 Wake Forest L. Rev. 387 (1976).

For note, “DNA Typing: A New Investigatory Tool,” see 1989 Duke L.J. 474.

CASE NOTES

Nontestimonial identification procedures are those procedures by which a suspect’s fingerprints, palm prints, footprints, measurements, blood specimen, urine specimen, saliva sample, hair sample, handwriting exemplar, voice sample or photographs are obtained. State v. Young, 317 N.C. 396, 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

Showing to Obtain Suppression of Statement. —

In order to obtain the suppression of his statement under subsection (d) of this section, a defendant must show: (1) That the statement was made during nontestimonial identification procedures, and (2) that the statement was made without the presence of counsel. State v. Young, 317 N.C. 396, 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

Statement When Served with Order. —

Suppression of statement made by defendant when he was merely being served with a copy of an order requiring his submission to nontestimonial identification procedures, and not made during any nontestimonial identification procedure, was not required by subsection (d) of this section. State v. Young, 317 N.C. 396, 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

Admission of evidence that defendant did not submit a blood sample did not violate defendant’s rights under subsection (d) of this section. State v. Kuplen, 316 N.C. 387, 343 S.E.2d 793, 1986 N.C. LEXIS 2227 (1986).

Failure to Remind Defendant of Right to Counsel. —

Given advance notice of his right to counsel in a nontestimonial identification order served on defendant three days before the withdrawal of fluid samples from defendant, any failure to remind defendant of his right to counsel prior to the taking of the fluid samples would not likely constitute a “substantial” violation of subsection (d) of this section requiring suppression of the evidence obtained. State v. Satterfield, 300 N.C. 621, 268 S.E.2d 510, 1980 N.C. LEXIS 1132 (1980).

The defendant’s right to counsel under this section was not violated by the administering of the gunshot residue kit. No order was required in that probable cause and exigent circumstances existed which justified the search and the defendant sought to suppress the results of the test, not statements made during the procedure. State v. Coplen, 138 N.C. App. 48, 530 S.E.2d 313, 2000 N.C. App. LEXIS 544, cert. denied, 352 N.C. 677, 545 S.E.2d 438, 2000 N.C. LEXIS 806 (2000).

As to right to have counsel present during gunshot residue test by virtue of subsection (d), see State v. Odom, 303 N.C. 163, 277 S.E.2d 352, 1981 N.C. LEXIS 1082, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 587, 1981 U.S. LEXIS 4501 (1981).

Evidence Admissible Despite Absence of Counsel. —

Defendant who complied with a nontestimonial identification order without legal representation was protected from any statements he made during the procedure, but the results of the tests themselves were not inadmissible solely because he was uncounseled, since there were no allegations of unreasonable force or delay. State v. Pearson, 145 N.C. App. 506, 551 S.E.2d 471, 2001 N.C. App. LEXIS 733 (2001), aff'd, 356 N.C. 22, 566 S.E.2d 50, 2002 N.C. LEXIS 545 (2002).

Evidence obtained pursuant to a non-testimonial identification order was admissible despite the nonobservance of defendant’s right to counsel, under G.S. 15A-279(d), because the evidence was not obtained as a result of the violation; as the evidence would have been obtained even if counsel had been provided and present, and the lack of counsel to advise defendant to have the evidence destroyed under G.S. 15A-280 was not determinative since there was sufficient probable cause to obtain a later search warrant without that evidence. State v. Pearson, 356 N.C. 22, 566 S.E.2d 50, 2002 N.C. LEXIS 545 (2002), cert. denied, 537 U.S. 1121, 123 S. Ct. 856, 154 L. Ed. 2d 802, 2003 U.S. LEXIS 77 (2003).

Although it is error to deny defendant counsel during a non-testimonial identification procedure that will be used against him at trial, such error is not prejudicial where a defendant does not attempt to suppress statements made during a gun residue test, but rather attempts to suppress the test results in total; there is no prejudicial error since the physical evidence would have been seized from defendant even if counsel had been present. State v. Page, 169 N.C. App. 127, 609 S.E.2d 432, 2005 N.C. App. LEXIS 514 (2005).

Defendant’s conviction for second-degree murder was upheld on appeal, because defendant failed to show any prejudice with regard to the trial court’s admission of a gun residue test over defendant’s objection, because defendant did not object to the admission of any statements made during the test, only the test results itself, and the trial court’s finding that exigent circumstances existed was supported by the evidence in that the test had to have been administered within a few hours of the shooting and defendant admitted he was one of the last to have seen the victim alive. State v. Page, 169 N.C. App. 127, 609 S.E.2d 432, 2005 N.C. App. LEXIS 514 (2005).

This Section Not Applicable to Search Pursuant to G.S. 15A-242(4). —

Where probable cause existed to support issuance of the search warrant for defendant’s hair, saliva, and blood pursuant to G.S. 15A-242(4), the State did not violate the defendant’s rights, under N.C. Const., Art. I, § 20, by failing to obtain a nontestimonial identification order, pursuant to G.S. 15A-273, or to provide defendant with the right to counsel during the execution of the search warrant, under this section. State v. Grooms, 353 N.C. 50, 540 S.E.2d 713, 2000 N.C. LEXIS 895 (2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d 54, 2001 U.S. LEXIS 5838 (2001).

§ 15A-280. Return.

Within 90 days after the nontestimonial identification procedure, a return must be made to the judge who issued the order or to a judge designated in the order setting forth an inventory of the products of the nontestimonial identification procedures obtained from the person named in the affidavit. If, at the time of the return, probable cause does not exist to believe that the person has committed the offense named in the affidavit or any other offense, the person named in the affidavit is entitled to move that the authorized judge issue an order directing that the products and reports of the nontestimonial identification procedures, and all copies thereof, be destroyed. The motion must, except for good cause shown, be granted.

History. 1973, c. 1286, s. 1.

CASE NOTES

Purpose. —

G.S. 15A-280’s purposes are twofold: (1) it requires a return to the judge who issued the non-testimonial identification order (NIO) setting forth a product inventory, and (2) it allows the subject of the NIO the opportunity to make a motion to have the NIO products destroyed. State v. Pearson, 356 N.C. 22, 566 S.E.2d 50, 2002 N.C. LEXIS 545 (2002), cert. denied, 537 U.S. 1121, 123 S. Ct. 856, 154 L. Ed. 2d 802, 2003 U.S. LEXIS 77 (2003).

Insubstantial Violation. —

Officer’s failure to return to the issuing judge an inventory of the evidence seized pursuant to the judge’s order for non-testimonial identification evidence did not require the suppression of the evidence seized pursuant to G.S. 15A-974(2); the collection of the evidence seized was not causally related to the statutory violation, only insignificant interests were violated as defendant was present when the evidence was taken and was aware of what was taken, and defendant did not move for destruction of the evidence after the expiration of the time within which the inventory was to be filed. State v. Pearson, 356 N.C. 22, 566 S.E.2d 50, 2002 N.C. LEXIS 545 (2002), cert. denied, 537 U.S. 1121, 123 S. Ct. 856, 154 L. Ed. 2d 802, 2003 U.S. LEXIS 77 (2003).

§ 15A-281. Nontestimonial identification order at request of defendant.

A person arrested for or charged with a felony offense, or a Class A1 or Class 1 misdemeanor offense may request that nontestimonial identification procedures be conducted upon himself. If it appears that the results of specific nontestimonial identification procedures will be of material aid in determining whether the defendant committed the offense, the judge to whom the request was directed must order the State to conduct the identification procedures.

History. 1973, c. 1286, s. 1; 1997-80, s. 15.

CASE NOTES

Defendant has no statutory right to demand a lineup when charges are no longer pending against him. State v. Jackson, 306 N.C. 642, 295 S.E.2d 383, 1982 N.C. LEXIS 1542 (1982).

Failure to Hold Lineup after Voluntary Dismissal by State. —

There was no impropriety in the State’s failure to hold the lineup as ordered by the district court judge, where the State, for whatever reason, decided to take a voluntary dismissal in the case. State v. Jackson, 306 N.C. 642, 295 S.E.2d 383, 1982 N.C. LEXIS 1542 (1982).

Defendant Had No Right to Order Directed Against Another Person. —

G.S. 15A-281 did not give a defendant the right to have a nontestimonial identification order directed against another individual; thus, defendant could not use the statute to require deoxyribonucleic acid tests on another person present at the crime scene. State v. Ryals, 179 N.C. App. 733, 635 S.E.2d 470, 2006 N.C. App. LEXIS 2161 (2006).

The unannounced, unexpected presence of robbery victim at defendant’s arraignment did not deny the defendant the right to a neutral line up procedure. The defendant made no request for such a procedure, nor did he ask the trial court to find that he intended to request such a procedure and that the procedure could not be fairly conducted. State v. Latta, 75 N.C. App. 611, 331 S.E.2d 213, 1985 N.C. App. LEXIS 3682, writ denied, 314 N.C. 334, 333 S.E.2d 494, 1985 N.C. LEXIS 1971 (1985).

§ 15A-282. Copy of results to person involved.

A person who has been the subject of nontestimonial identification procedures or his attorney must be provided with a copy of any reports of test results as soon as the reports are available.

History. 1973, c. 1286, s. 1.

CASE NOTES

Insubstantial Violation. —

Officer’s failure to provide defendant with a copy of any test results on the evidence seized from him pursuant to a non-testimonial identification order did not require the suppression of the evidence pursuant to G.S. 15A-974(2); the interest protected was insignificant because the samples had already been taken and the deviation from the statute was an unintentional oversight. State v. Pearson, 356 N.C. 22, 566 S.E.2d 50, 2002 N.C. LEXIS 545 (2002), cert. denied, 537 U.S. 1121, 123 S. Ct. 856, 154 L. Ed. 2d 802, 2003 U.S. LEXIS 77 (2003).

Scope. —

State procedural law set out in G.S. 15A-282 does not create property rights that are subject to the due process protections of the Fourteenth Amendment; procedural rights set out in that state statute do not resemble any traditional conception of property. McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 2011 U.S. Dist. LEXIS 34839 (M.D.N.C. 2011), aff'd in part and rev'd in part, 703 F.3d 636, 2012 U.S. App. LEXIS 25660 (4th Cir. 2012).

Court would not expand G.S. 15A-282 into a federally-protected right, the violation of which would expose state actors to potential 42 U.S.C.S. § 1983 liability; therefore, plaintiffs could not state a § 1983 claim for the alleged failure to comply with G.S. 15A-282. McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 2011 U.S. Dist. LEXIS 34839 (M.D.N.C. 2011), aff'd in part and rev'd in part, 703 F.3d 636, 2012 U.S. App. LEXIS 25660 (4th Cir. 2012).

§§ 15A-283 through 15A-284.49.

Reserved for future codification purposes.

Article 14A. Eyewitness Identification Reform Act.

§ 15A-284.50. Short title.

This Article shall be called the “Eyewitness Identification Reform Act.”

History. 2007-421, s. 1.

Editor’s Note.

Session Laws 2007-421, s. 2, made this Article effective March 1, 2008, and applicable to offenses committed on or after that date.

§ 15A-284.51. Purpose.

The purpose of this Article is to help solve crime, convict the guilty, and exonerate the innocent in criminal proceedings by improving procedures for eyewitness identification of suspects.

History. 2007-421, s. 1.

§ 15A-284.52. Eyewitness identification reform.

  1. Definitions. —  The following definitions apply in this Article:
    1. Eyewitness. — A person, including a law enforcement officer, whose identification by sight of another person may be relevant in a criminal proceeding.
    2. Filler. — A person or a photograph of a person who is not suspected of an offense and is included in a lineup.
    3. Independent administrator. — A lineup administrator who is not participating in the investigation of the criminal offense and is unaware of which person in the lineup is the suspect.
    4. Lineup. — A photo lineup or live lineup.
    5. Lineup administrator. — The person who conducts a lineup.
    6. Live lineup. — A procedure in which a group of people is displayed to an eyewitness for the purpose of determining if the eyewitness is able to identify the perpetrator of a crime.
    7. Photo lineup. — A procedure in which an array of photographs is displayed to an eyewitness for the purpose of determining if the eyewitness is able to identify the perpetrator of a crime.
    8. Show-up. — A procedure in which an eyewitness is presented with a single live suspect for the purpose of determining whether the eyewitness is able to identify the perpetrator of a crime.
  2. Eyewitness Identification Procedures. —  Lineups conducted by State, county, and other local law enforcement officers shall meet all of the following requirements:
    1. A lineup shall be conducted by an independent administrator or by an alternative method as provided by subsection (c) of this section.
    2. Individuals or photos shall be presented to witnesses sequentially, with each individual or photo presented to the witness separately, in a previously determined order, and removed after it is viewed before the next individual or photo is presented.
    3. Before a lineup, the eyewitness shall be instructed that:
      1. The perpetrator might or might not be presented in the lineup,
      2. The lineup administrator does not know the suspect’s identity,
      3. The eyewitness should not feel compelled to make an identification,
      4. It is as important to exclude innocent persons as it is to identify the perpetrator, and
      5. The investigation will continue whether or not an identification is made.
    4. In a photo lineup, the photograph of the suspect shall be contemporary and, to the extent practicable, shall resemble the suspect’s appearance at the time of the offense.
    5. The lineup shall be composed so that the fillers generally resemble the eyewitness’s description of the perpetrator, while ensuring that the suspect does not unduly stand out from the fillers. In addition:
      1. All fillers selected shall resemble, as much as practicable, the eyewitness’s description of the perpetrator in significant features, including any unique or unusual features.
      2. At least five fillers shall be included in a photo lineup, in addition to the suspect.
      3. At least five fillers shall be included in a live lineup, in addition to the suspect.
      4. If the eyewitness has previously viewed a photo lineup or live lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the current suspect participates shall be different from the fillers used in any prior lineups.
    6. If there are multiple eyewitnesses, the suspect shall be placed in a different position in the lineup or photo array for each eyewitness.
    7. In a lineup, no writings or information concerning any previous arrest, indictment, or conviction of the suspect shall be visible or made known to the eyewitness.
    8. In a live lineup, any identifying actions, such as speech, gestures, or other movements, shall be performed by all lineup participants.
    9. In a live lineup, all lineup participants must be out of view of the eyewitness prior to the lineup.
    10. Only one suspect shall be included in a lineup.
    11. Nothing shall be said to the eyewitness regarding the suspect’s position in the lineup or regarding anything that might influence the eyewitness’s identification.
    12. The lineup administrator shall seek and document a clear statement from the eyewitness, at the time of the identification and in the eyewitness’s own words, as to the eyewitness’s confidence level that the person identified in a given lineup is the perpetrator. The lineup administrator shall separate all witnesses in order to discourage witnesses from conferring with one another before or during the procedure. Each witness shall be given instructions regarding the identification procedures without other witnesses present.
    13. If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning the person before the lineup administrator obtains the eyewitness’s confidence statement about the selection. There shall not be anyone present during the live lineup or photographic identification procedures who knows the suspect’s identity, except the eyewitness and counsel as required by law.
    14. Unless it is not practical, a video record of live identification procedures shall be made. If a video record is not practical, the reasons shall be documented, and an audio record shall be made. If neither a video nor audio record are practical, the reasons shall be documented, and the lineup administrator shall make a written record of the lineup.
    15. Whether video, audio, or in writing, the record shall include all of the following information:
      1. All identification and nonidentification results obtained during the identification procedure, signed by the eyewitness, including the eyewitness’s confidence statement. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the results and shall also sign the notation.
      2. The names of all persons present at the lineup.
      3. The date, time, and location of the lineup.
      4. The words used by the eyewitness in any identification, including words that describe the eyewitness’s certainty of identification.
      5. Whether it was a photo lineup or live lineup and how many photos or individuals were presented in the lineup.
      6. The sources of all photographs or persons used.
      7. In a photo lineup, the photographs themselves.
      8. In a live lineup, a photo or other visual recording of the lineup that includes all persons who participated in the lineup.
  3. Alternative Methods for Identification if Independent Administrator Is Not Used. —  In lieu of using an independent administrator, a photo lineup eyewitness identification procedure may be conducted using an alternative method specified and approved by the North Carolina Criminal Justice Education and Training Standards Commission. Any alternative method shall be carefully structured to achieve neutral administration and to prevent the administrator from knowing which photograph is being presented to the eyewitness during the identification procedure. Alternative methods may include any of the following:
    1. Automated computer programs that can automatically administer the photo lineup directly to an eyewitness and prevent the administrator from seeing which photo the witness is viewing until after the procedure is completed.
    2. A procedure in which photographs are placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the administrator cannot see or track which photograph is being presented to the witness until after the procedure is completed.
    3. Any other procedures that achieve neutral administration.
  4. Show-Up Procedures. —  A show-up conducted by State, county, and other local law enforcement officers shall meet all of the following requirements:
    1. A show-up may only be conducted when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his or her appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness.
    2. A show-up shall only be performed using a live suspect and shall not be conducted with a photograph.
    3. Investigators shall photograph a suspect at the time and place of the show-up to preserve a record of the appearance of the suspect at the time of the show-up procedure.
    4. Notwithstanding G.S. 7B-2103, an investigator shall photograph a juvenile suspect who is 10 years of age or older at the time and place of the show-up as required by this subsection if the juvenile is reported to have committed a nondivertible offense as set forth in G.S. 7B-1701 or common law robbery. Photographs of juveniles shall be retained or disposed of as required by G.S. 7B-2108, except that the law enforcement agency is required to make written certification to the court of the destruction of records under G.S. 7B-2108(6) only if a petition was filed. Photographs taken pursuant to this subdivision are not public records under Chapter 132 of the General Statutes and the photographs shall be (i) kept separate from the records of adults, (ii) withheld from public inspection, and (iii) examined only by order of the court, except that the following persons may examine it without an order of the court:
      1. The juvenile or the juvenile’s attorney.
      2. The juvenile’s parent or guardian.
      3. The prosecutor.
      4. Court counselors.
  5. The North Carolina Criminal Justice Education and Training Standards Commission shall develop a policy regarding standard procedures for the conduct of show-ups in accordance with this section. The policy shall apply to all law enforcement agencies and shall address all of the following, in addition to the provisions of this section:
    1. Standard instructions for eyewitnesses.
    2. Confidence statements by the eyewitness, including information related to the eyewitness’ vision, the circumstances of the events witnessed, and communications with other eyewitnesses, if any.
    3. Training of law enforcement officers specific to conducting show-ups.
    4. Any other matters deemed appropriate by the Commission.
  6. Remedies. —  All of the following shall be available as consequences of compliance or noncompliance with the requirements of this section:
    1. Failure to comply with any of the requirements of this section shall be considered by the court in adjudicating motions to suppress eyewitness identification.
    2. Failure to comply with any of the requirements of this section shall be admissible in support of claims of eyewitness misidentification, as long as such evidence is otherwise admissible.
    3. When evidence of compliance or noncompliance with the requirements of this section has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications.
  7. Nothing in this section shall be construed to require a law enforcement officer while acting in his or her official capacity to be required to participate in a show-up as an eyewitness.

The eyewitness shall acknowledge the receipt of the instructions in writing. If the eyewitness refuses to sign, the lineup administrator shall note the refusal of the eyewitness to sign the acknowledgement and shall also sign the acknowledgement.

History. 2007-421, s. 1; 2015-212, s. 1; 2019-47, s. 2.

Editor’s Note.

The definitions in subsection (a) have been set out in alphabetical order at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2015-212, s. 1, effective December 1, 2015, in subsection (a), inserted “including a law enforcement officer” in subdivision (1), and added subdivision (8); and added subsections (c1), (c2) and (e). For applicability and effective date, see Editor’s note.

Session Laws 2019-47, s. 2, effective June 26, 2019, added subdivision (c1)(4).

Legal Periodicals.

For article, “N.C. Innocence Inquiry Commission’s First Decade: Impressive Successes and Lessons Learned,” see 94 N.C.L. Rev. 1725 (2016).

CASE NOTES

Eyewitness Identification Reform Act Not Applicable. —

Identification based on two photographs was not a “lineup” and, therefore, was not subject to the procedures of the Eyewitness Identification Reform Act, G.S. 15A-284.52. State v. Macon, 236 N.C. App. 182, 762 S.E.2d 378, 2014 N.C. App. LEXIS 973 (2014).

Trial court did not err in denying defendant’s motion to suppress a police officer’s identification of defendant as the person whom the officer saw when responding to a shooting because the inadvertent out-of-court identification of defendant, based on a single North Carolina Department of Motor Vehicles photograph of defendant that was accessed by the officer less than an hour after seeing defendant, was not subject to statutory procedures as it was neither a lineup, nor show-up. State v. Crumitie, 266 N.C. App. 373, 831 S.E.2d 592, 2019 N.C. App. LEXIS 611 (2019).

Eyewitness Identification Procedures to Comply With Statutory Requirements. —

North Carolina Eyewitness Identification Reform Act of 2007 (EIRA) was enacted to protect due process rights during identification procedures; therefore, as a general matter, to protect the due process rights of defendants, all eyewitness identification procedures should comply with the requirements of the EIRA. State v. Malone, 256 N.C. App. 275, 807 S.E.2d 639, 2017 N.C. App. LEXIS 1089 (2017), cert. denied, 370 N.C. 580, 809 S.E.2d 586, 2018 N.C. LEXIS 82 (2018), aff'd in part, rev'd, 373 N.C. 134, 833 S.E.2d 779, 2019 N.C. LEXIS 1065 (2019).

Show-Up. —

Witnesses looking outside the courthouse window at the exact moment defendant exited a police car was not a coordinated act by the district attorney’s office to have the witnesses view defendant in-person because although the circumstances seemed suspicious, the district attorney’s office did not conduct an impermissible show-up; nonetheless, the witnesses viewing the photographs, surveillance footage, and defendant’s interview did constitute impermissible identification procedures. State v. Malone, 256 N.C. App. 275, 807 S.E.2d 639, 2017 N.C. App. LEXIS 1089 (2017), cert. denied, 370 N.C. 580, 809 S.E.2d 586, 2018 N.C. LEXIS 82 (2018), aff'd in part, rev'd, 373 N.C. 134, 833 S.E.2d 779, 2019 N.C. LEXIS 1065 (2019).

Show up identification satisfied the requirements of this section because defendant matched the victim’s description, he was located less than 800 feet from crime scene within a few minutes of a BOLO being issued, the identification was conducted with a live person which was recorded, and the nature and circumstances surrounding apprehending an armed, violent suspect required the officers to immediately display defendant. State v. Reaves-Smith, 271 N.C. App. 337, 844 S.E.2d 19, 2020 N.C. App. LEXIS 348 (2020).

Plain language of the statute shows that the legislature delegated authority to the North Carolina Criminal Justice Education and Training Standards Commission to establish nonbinding guidelines to assist law enforcement. Because the language of this section does not place additional statutory requirements on law enforcement, but rather requires the North Carolina Criminal Justice Education and Training Standards Commission to develop nonbinding guidelines, only this section sets forth the requirements for show-up identification compliance. State v. Reaves-Smith, 271 N.C. App. 337, 844 S.E.2d 19, 2020 N.C. App. LEXIS 348 (2020).

Because the officers complied with the show-up procedures in this section, defendant was not entitled to a jury instruction on noncompliance with the North Carolina Eyewitness Identification Reform Act. State v. Reaves-Smith, 271 N.C. App. 337, 844 S.E.2d 19, 2020 N.C. App. LEXIS 348 (2020).

Denial of Motion to Withdraw Guilty Plea. —

Trial court did not err in denying defendant’s motion to withdraw his guilty plea because, inter alia, even assuming that the photographic lineups had been suppressed and excluded from the State’s evidence, the State’s case would still not have been considered weak as the State’s forecast of evidence included audio and video recordings of one of the robberies and witnesses present during the robberies that were prepared to testify that defendant was the perpetrator. State v. McGill, 250 N.C. App. 121, 791 S.E.2d 702, 2016 N.C. App. LEXIS 1061 (2016).

Denial of Motion to Suppress Victim’s Pretrial Identification. —

In defendant’s criminal prosecution, the trial court’s denial of defendant’s motion to suppress the victim’s pretrial identification had to be affirmed as the court was unwilling to hold that the General Assembly intended the Eyewitness Identification Reform Act to apply to showups in the absence of any express indication of that intent. State v. Rawls, 207 N.C. App. 415, 700 S.E.2d 112, 2010 N.C. App. LEXIS 1955 (2010).

Trial court did not plainly err in admitting eyewitness testimony where the detective’s administration of the photographic lineup met the requirements of G.S. 15A-284.52 where he testified in detail about his use of the approved folder method, randomizing manila folders so that he could not track any photo, he instructed the witness with a signed instruction form mirroring the North Carolina Eyewitness Identification Reform Act of 2007, he used one photo of defendant and five filler photos of similar looking men, and he documented the witness’ confidence in the identification without providing information on any one suspect. State v. Gamble, 243 N.C. App. 414, 777 S.E.2d 158, 2015 N.C. App. LEXIS 821 (2015).

Appellate Claim of Violation Not Considered. —

Defendant’s appellate claim that it was error to deny defendant’s motion to suppress identifications allegedly conducted in violation of the Eyewitness Identification Reform Act (Act) was not considered because (1) defendant did not object when the evidence defendant sought to suppress was introduced, (2) defendant identified no violation of a statutory mandate which would have made an objection unnecessary, and the court conducted no hearing that might have triggered statutorily-mandated responsibilities under the Act, (3) defendant did not specifically and distinctly allege plain error, and (4) defendant did not ask the appellate court to apply N.C. R. App. P. 2 to reach the merits of defendant’s argument, nor were circumstances meriting the Rule’s application apparent. State v. Gullette, 252 N.C. App. 39, 796 S.E.2d 396, 2017 N.C. App. LEXIS 94 (2017).

Mistrial Properly Denied. —

Trial court did not abuse its discretion in denying defendant’s motion for a mistrial under G.S. 15A-1061 because in accordance with the Eyewitness Identification Reform Act, G.S. 15A-284.52(d), the trial court instructed the jury that it could consider what evidence it found to be credible concerning compliance or non-compliance with such requirements in determining the reliability of eyewitness identification. State v. Wilson, 225 N.C. App. 498, 737 S.E.2d 186, 2013 N.C. App. LEXIS 137 (2013).

Courtroom Identification Sufficient. —

Witness’s courtroom identification of one defendant was of independent origin, based upon what she had experienced and saw up to and at the time of the shooting and during trial; defendant failed to object and his statutory and due process rights were not violated. With the unobjected to and in-court identification, the photo identification testimony was not shown to have impacted the jury’s verdict. State v. Abbitt, 278 N.C. App. 692, 863 S.E.2d 301, 2021- NCCOA-403, 2021 N.C. App. LEXIS 421 (2021).

§ 15A-284.53. Training of law enforcement officers.

Pursuant to its authority under G.S. 17C-6 and G.S. 17E-4, the North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Sheriffs’ Education and Training Standards Commission, in consultation with the Department of Justice, shall create educational materials and conduct training programs on how to conduct lineups and show-ups in compliance with this Article.

History. 2007-421, s. 1; 2015-212, s. 2.

Effect of Amendments.

Session Laws 2015-212, s. 2, effective December 1, 2015, inserted “and show-ups” following “how to conduct lineups” near the end of the paragraph. See Editor’s note for applicability.

Article 15. Urgent Necessity.

§ 15A-285. Non-law-enforcement actions when urgently necessary.

When an officer reasonably believes that doing so is urgently necessary to save life, prevent serious bodily harm, or avert or control public catastrophe, the officer may take one or more of the following actions:

  1. Enter buildings, vehicles, and other premises.
  2. Limit or restrict the presence of persons in premises or areas.
  3. Exercise control over the property of others.

An action taken to enforce the law or to seize a person or evidence cannot be justified by authority of this section.

History. 1973, c. 1286, s. 1.

Official Commentary

This Article grants specific authority to law-enforcement officers for taking various nonenforcement actions which are expected of them — actions which are necessary for public safety, but which do not necessarily deal with violations of the criminal law. The section would express the authority, for example, for an officer to enter a dwelling from which he heard cries for help from someone in distress or to order people from a building because of an explosive gas leak. The provision seeks to deter any possibility of its authority being used as a “cover” for searching for criminal evidence or suspects by specifying that no action taken to uncover evidence or suspects can be characterized as an action taken under this Article.

CASE NOTES

Officers were authorized to enter the house under G.S. 15A-285 after (1) defendant walked up to a police officer in his cruiser and told the trooper that he had killed his mother, (2) the officers went to the front porch of the mother’s house and found what appeared to be blood, (3) and the officers then entered the house presumably to assist anyone who may have been inside. State v. Earwood, 155 N.C. App. 698, 574 S.E.2d 707, 2003 N.C. App. LEXIS 20 (2003).

Article 16. Electronic Surveillance.

§ 15A-286. Definitions.

As used in this Article, unless the context requires otherwise:

  1. “Aggrieved person” means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.
  2. “Attorney General” means the Attorney General of the State of North Carolina, unless otherwise specified.
  3. “Aural transfer” means a transfer containing the human voice at any point between and including the point of origin and the point of reception.
  4. “Chapter 119 of the United States Code” means Chapter 119 of Part I of Title 18, United States Code, being Public Law 90-351, the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986.
  5. “Communications common carrier” shall have the same meaning which is given the term “common carrier” by section 153(h) of Title 47 of the United States Code.
  6. “Contents” when used with respect to any wire, oral, or electronic communication means and includes any information concerning the substance, purport, or meaning of that communication.
  7. “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than:
    1. Any telephone or telegraph instrument, equipment, or facility, or any component thereof:
      1. Furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or
      2. Being used by a provider of wire or electronic communication service in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of the officer’s duties.
    2. A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
  8. “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects interstate or foreign commerce but does not include:
    1. Any wire or oral communication;
    2. Any communication made through a tone-only paging device; or
    3. Any communication from a tracking device (as defined in section 3117 of Title 18 of the United States Code).
  9. “Electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications.
  10. “Electronic communication system” means any wire, radio, electronic, magnetic, photooptical, or photoelectronic facilities for the transmission of electronic communications, and any computer facilities or related electronic equipment for the storage of such communications.
  11. “Electronic surveillance” means the interception of wire, oral, or electronic communications as provided by this Article.
  12. “Electronic storage” means:
    1. Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
    2. Any storage of such communication by an electronic communication service for the purposes of backup protection of the communication.
  13. “Intercept” means the aural or other acquisition of the contents of any wire, oral, or electronic communication through the use of any electronic, mechanical, or other device.
  14. “Investigative or law enforcement officer” means any officer of the State of North Carolina or any political subdivision thereof, who is empowered by the laws of this State to conduct investigations of or to make arrests for offenses enumerated in G.S. 15A-290, and any attorney authorized by the laws of this State to prosecute or participate in the prosecution of those offenses, including the Attorney General of North Carolina.
  15. “Judge” means any judge of the trial divisions of the General Court of Justice.
  16. “Judicial review panel” means a three-judge body, composed of such judges as may be assigned by the Chief Justice of the Supreme Court of North Carolina, which shall review applications for electronic surveillance orders and may issue orders valid throughout the State authorizing such surveillance as provided by this Article, and which shall submit a report of its decision to the Chief Justice.
  17. “Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but the term does not include any electronic communication.
  18. “Person” means any employee or agent of the United States or any state or any political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.
  19. “Readily accessible to the general public” means, with respect to a radio communication, that the communication is not:
    1. Scrambled or encrypted;
    2. Transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication;
    3. Carried on a subcarrier or other signal subsidiary to a radio transmission;
    4. Transmitted over a communications system provided by a common carrier, unless the communication is a tone-only paging system communication; or
    5. Transmitted on frequencies allocated under Part 25, Subpart D, E, or F or Part 94 of the Rules of the Federal Communications Commission as provided by 18 U.S.C. § 2510(16)(E).
  20. “User” means any person or entity who:
    1. Uses an electronic communications service; and
    2. Is duly authorized by the provider of the service to engage in the use.
  21. “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce and the term includes any electronic storage of such communication.

History. 1995, c. 407, s. 1; 1997-435, s. 1.

Legal Periodicals.

For article, “Privacy as a Public Good,” see 65 Duke L.J. 385 (2016).

For article, “The Fourth Amendment in Your Shower: Naperville, Reasonable Expectations of Privacy, and the Intimate Nature of Electric Smart Meter Data,” see 99 N.C.L. Rev. 1141 (2021).

CASE NOTES

Summary Judgment Properly Granted. —

In a business dispute involving asserted allegations of breach of a covenant-not-to-compete and other claims, including a counterclaim for interception of wire communication, the trial court properly granted plaintiff summary judgment on the interception of wire communication counterclaim as plaintiff was the provider of the voicemail and e-mail accounts accessed after defendants had left the company. As the provider of those accounts, plaintiff had the right to access them to retrieve business-related correspondence and protect its rights and property. Kinesis Adver., Inc. v. Hill, 187 N.C. App. 1, 652 S.E.2d 284, 2007 N.C. App. LEXIS 2251 (2007).

§ 15A-287. Interception and disclosure of wire, oral, or electronic communications prohibited.

  1. Except as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person:
    1. Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.
    2. Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
      1. The device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communications; or
      2. The device transmits communications by radio, or interferes with the transmission of such communications.
    3. Willfully discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through violation of this Article; or
    4. Willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Article.
  2. It is not unlawful under this Article for any person to:
    1. Intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public;
    2. Intercept any radio communication which is transmitted:
      1. For use by the general public, or that relates to ships, aircraft, vehicles, or persons in distress;
      2. By any governmental, law enforcement, civil defense, private land mobile, or public safety communication system, including police and fire, readily available to the general public;
      3. By a station operating on any authorized band within the bands allocated to the amateur, citizens band, or general mobile radio services; or
      4. By any marine or aeronautical communication system; or
    3. Intercept any communication in a manner otherwise allowed by Chapter 119 of the United States Code.
  3. It is not unlawful under this Article for an operator of a switchboard, or an officer, employee, or agent of a provider of electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of employment while engaged in any activity that is a necessary incident to the rendition of his or her service or to the protection of the rights or property of the provider of that service, provided that a provider of wire or electronic communication service may not utilize service observing or random monitoring except for mechanical or service quality control checks.
  4. It is not unlawful under this Article for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of Chapter 5 of Title 47 of the United States Code, to intercept a wire or electronic communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.
  5. Any person who, as a result of the person’s official position or employment, has obtained knowledge of the contents of any wire, oral, or electronic communication lawfully intercepted pursuant to an electronic surveillance order or of the pendency or existence of or implementation of an electronic surveillance order who shall knowingly and willfully disclose such information for the purpose of hindering or thwarting any investigation or prosecution relating to the subject matter of the electronic surveillance order, except as is necessary for the proper and lawful performance of the duties of his position or employment or as shall be required or allowed by law, shall be guilty of a Class G felony.
  6. Any person who shall, knowingly or with gross negligence, divulge the existence of or contents of any electronic surveillance order in a way likely to hinder or thwart any investigation or prosecution relating to the subject matter of the electronic surveillance order or anyone who shall, knowingly or with gross negligence, release the contents of any wire, oral, or electronic communication intercepted under an electronic surveillance order, except as is necessary for the proper and lawful performance of the duties of his position or employment or as is required or allowed by law, shall be guilty of a Class 1 misdemeanor.
  7. Any public officer who shall violate subsection (a) or (d) of this section or who shall knowingly violate subsection (e) of this section shall be removed from any public office he may hold and shall thereafter be ineligible to hold any public office, whether elective or appointed.

History. 1995, c. 407, s. 1.

Legal Periodicals.

For article, “Privacy and Community Property,” see 95 N.C.L. Rev. 729 (2017).

CASE NOTES

Overheard Conversation Admissible into Evidence. —

Woman’s continued listening to a conversation over her cordless telephone between the defendant and the statutory rape victim was not done with a bad purpose or without a justifiable excuse, rather, it was done out of concern for the welfare of a minor; therefore, her testimony as to the conversation which she heard was admissible. State v. McGriff, 151 N.C. App. 631, 566 S.E.2d 776, 2002 N.C. App. LEXIS 870 (2002).

Defendants’ Motion to Dismiss Properly Denied. —

Court of Appeals of North Carolina held that Congress abrogated the State’s right to claim sovereignty immunity when it amended 18 U.S.C.S. § 2520(a) in 1986, and it upheld the trial court’s judgment refusing to dismiss an employee’s claim against the North Carolina State University, her former supervisor, and university officials, alleging that her former supervisor violated her rights under federal and state wiretapping laws, U.S. Const. amends. IV and XIV, and N.C. Const. art. I, §§ 19 and 20 when he secretly recorded her personal telephone calls for illicit and personal purposes. Huber v. N.C. State Univ., 163 N.C. App. 638, 594 S.E.2d 402, 2004 N.C. App. LEXIS 569 (2004).

Summary Judgment Properly Granted. —

In a business dispute involving asserted allegations of breach of a covenant-not-to-compete and other claims, including a counterclaim for interception of wire communication, the trial court properly granted plaintiff summary judgment on the interception of wire communication counterclaim as plaintiff was the provider of the voicemail and e-mail accounts accessed after defendants had left the company. As the provider of those accounts, plaintiff had the right to access them to retrieve business-related correspondence and protect its rights and property. Kinesis Adver., Inc. v. Hill, 187 N.C. App. 1, 652 S.E.2d 284, 2007 N.C. App. LEXIS 2251 (2007).

Summary Judgment Improperly Granted. —

Summary judgment was improperly granted on the husband’s claim that the wife illegally videotaped the husband’s in-home actions; as the husband did not establish that the videotaping included sound recordings, an issue of fact remained as only oral communications were covered by G.S. 15A-287. Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760, 2002 N.C. App. LEXIS 915 (2002).

Consent Given. —

Motion to suppress evidence phone calls that were recorded while defendant was a pre-trial detainee was denied because there was no violation of 18 U.S.C.S. § 2511 or G.S. 15A-287; defendant gave consent by continuing to talk after a message gave notice of a possible recordation. State v. Price, 170 N.C. App. 57, 611 S.E.2d 891, 2005 N.C. App. LEXIS 895 (2005).

Recorded Calls Were Admissible Based on Implied Consent. —

Two recorded telephone calls defendant made from the detention center were properly admitted, where defendant was aware from two previous calls that telephone communications from the detention center were subject to being recorded and that knowledge was sufficient to find implied consent by defendant. State v. Troy, 198 N.C. App. 396, 679 S.E.2d 498, 2009 N.C. App. LEXIS 1165 (2009).

Police Chief’s Integrity Check on Officer Held Proper. —

Summary judgment for a town and its police chief was proper in a former police officer’s action alleging a violation of G.S. 15A-287(a)(1) of the Electronic Surveillance Act, because the police chief’s conducting an integrity check to see if the officer was tipping off drug dealers was not done with a bad purpose or without justifiable excuse. Wright v. Town of Zebulon, 202 N.C. App. 540, 688 S.E.2d 786, 2010 N.C. App. LEXIS 280, cert. denied, 364 N.C. 334, 701 S.E.2d 682, 2010 N.C. LEXIS 1099 (2010).

§ 15A-288. Manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices prohibited.

  1. Except as otherwise specifically provided in this Article, a person is guilty of a Class H felony if the person:
    1. Manufactures, assembles, possesses, purchases, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications; or
    2. Places in any newspaper, magazine, handbill, or other publication, any advertisement of:
      1. Any electronic, mechanical, or other device knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications; or
      2. Any other electronic, mechanical, or other device where the advertisement promotes the use of the device for the purpose of the surreptitious interception of wire, oral, or electronic communications.
  2. It is not unlawful under this section for the following persons to manufacture, assemble, possess, purchase, or sell any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications:
    1. A communications common carrier or an officer, agent, or employee of, or a person under contract with, a communications common carrier, acting in the normal course of the communications common carrier’s business, or
    2. An officer, agent, or employee of, or a person under contract with, the State, acting in the course of the activities of the State, and with the written authorization of the Attorney General.
  3. An officer, agent, or employee of, or a person whose normal and customary business is to design, manufacture, assemble, advertise and sell electronic, mechanical and other devices primarily useful for the purpose of the surreptitious interceptions of wire, oral, or electronic communications, exclusively for and restricted to State and federal investigative or law enforcement agencies and departments.

History. 1995, c. 407, s. 1.

§ 15A-289. Confiscation of wire, oral, or electronic communication interception devices.

Any electronic, mechanical, or other device used, sent, carried, manufactured, assembled, possessed, sold, or advertised in violation of G.S. 15A-288 may be seized and forfeited to this State.

History. 1995, c. 407, s. 1.

§ 15A-290. Offenses for which orders for electronic surveillance may be granted.

  1. Orders authorizing or approving the interception of wire, oral, or electronic communications may be granted, subject to the provisions of this Article and Chapter 119 of Title 18 of the United States Code, when the interception does any of the following:
    1. May provide or has provided evidence of the commission of, or any conspiracy to commit, any of the following:
      1. Any of the drug-trafficking violations listed in G.S. 90-95(h).
      2. A continuing criminal enterprise in violation of G.S. 90-95.1.
    2. May expedite the apprehension of persons indicted for the commission of, or any conspiracy to commit, an offense listed in subdivision (1) of this subsection.
  2. Orders authorizing or approving the interception of wire, oral, or electronic communications may be granted, subject to the provisions of this Article and Chapter 119 of Title 18 of the United States Code, when the interception may provide, or has provided, evidence of any offense that involves the commission of, or any conspiracy to commit, murder, kidnapping, hostage taking, robbery, extortion, bribery, rape, or any sexual offense, or when the interception may expedite the apprehension of persons indicted for the commission of these offenses.
  3. Orders authorizing or approving the interception of wire, oral, or electronic communications may be granted, subject to the provisions of this Article and Chapter 119 of Title 18 of the United States Code, when the interception may provide, or has provided, evidence of any of the following offenses, or any conspiracy to commit these offenses, or when the interception may expedite the apprehension of persons indicted for the commission of these offenses:
    1. Any felony offense against a minor, including any violation of G.S. 14-27.31 (Sexual activity by a substitute parent or custodian), G.S. 14-27.32 (Sexual activity with a student), G.S. 14-41 (Abduction of children), G.S. 14-43.11 (Human trafficking), G.S. 14-43.12 (Involuntary servitude), G.S. 14-43.13 (Sexual servitude), G.S. 14-190.16 (First degree sexual exploitation of a minor), G.S. 14-190.17 (Second degree sexual exploitation of a minor), G.S. 14-202.1 (Taking indecent liberties with children), G.S. 14-205.2(c) or (d) (Patronizing a prostitute who is a minor or has a mental disability), or G.S. 14-205.3(b) (Promoting prostitution of a minor or a person who has a mental disability).
    2. Any felony obstruction of a criminal investigation, including any violation of G.S. 14-221.1 (Altering, destroying, or stealing evidence of criminal conduct).
    3. Any felony offense involving interference with, or harassment or intimidation of, jurors or witnesses, including any violation of G.S. 14-225.2 or G.S. 14-226.
    4. Any felony offense involving assault or threats against any executive or legislative officer in violation of Article 5A of Chapter 14 of the General Statutes or assault with a firearm or other deadly weapon upon governmental officers or employees in violation of G.S. 14-34.2.
    5. Any offense involving the manufacture, assembly, possession, storage, transportation, sale, purchase, delivery, or acquisition of weapons of mass death or destruction in violation of G.S. 14-288.8 or the adulteration or misbranding of food, drugs, cosmetics, etc., with the intent to cause serious injury in violation of G.S. 14-34.4.
  4. When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized, intercepts wire, electronic, or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents of the communications and evidence derived from the communications may be disclosed or used as provided in G.S. 15A-294(a) and (b). The contents of the communications and any evidence derived from the communications may be used in accordance with G.S. 15A-294(c) when authorized or approved by a judicial review panel where the panel finds, on subsequent application made as soon as practicable, that the contents were otherwise intercepted in accordance with this Article or Chapter 119 of Title 18 of the United States Code.
  5. No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this Article or Chapter 119 of Title 18 of the United States Code, shall lose its privileged character.

History. 1995, c. 407, s. 1; 2013-368, s. 6; 2015-181, s. 46; 2018-47, s. 4(k).

Effect of Amendments.

Session Laws 2013-368, s. 6, effective October 1, 2013, rewrote subsection (c)(1). For applicability, see Editor’s note.

Session Laws 2015-181, s. 46, effective December 1, 2015, substituted “G.S. 14-27.31 (Sexual activity by a substitute parent or custodian), G.S. 14-27.32 (Sexual activity with a student)” for “G.S. 14-27.7 (Intercourse and sexual offenses with certain victims; consent no defense)” in subdivision (c)(1). For applicability, see editor’s note.

Session Laws 2018-47, s. 4(k), inserted “of Title 18” throughout this section; added “does any of the following” at the end of subsection (a); added “, any of the following” in subdivision (a)(1); substituted “G.S. 90-95(h).” for “G.S. 90-95(h); or” in subdivision (a)(1)a; in subdivision (c)(1), substituted “has a mental disability” for “a mentally disabled person” and substituted “person who has a mental disability” for “mentally disabled person”; and, in subsection (d), substituted “of the communications and evidence derived from the communications” for “thereof, and evidence derived therefrom,” near the end of the first sentence and, in the second sentence, substituted “The contents of the communications” for “Such contents” and substituted “from the communications” for “therefrom”. For effective date and applicability, see editor’s note.

§ 15A-291. Application for electronic surveillance order; judicial review panel.

  1. The Attorney General or the Attorney General’s designee may, pursuant to the provisions of section 2516(2) of Chapter 119 of the United States Code, apply to a judicial review panel for an order authorizing or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offenses as to which the application is made, and for such offenses and causes as are enumerated in G.S. 15A-290. A judicial review panel shall be composed of such judges as may be assigned by the Chief Justice of the Supreme Court of North Carolina or an Associate Justice acting as the Chief Justice’s designee, which shall review applications for electronic surveillance orders and may issue orders valid throughout the State authorizing such surveillance as provided by this Article, and which shall submit a report of its decision to the Chief Justice. A judicial review panel may be appointed by the Chief Justice or an Associate Justice acting as the Chief Justice’s designee upon the notification of the Attorney General’s Office of the intent to apply for an electronic surveillance order.
  2. A judicial review panel is hereby authorized to grant orders valid throughout the State for the interception of wire, oral, or electronic communications. Applications for such orders may be made by the Attorney General or the Attorney General’s designee. The Attorney General or the Attorney General’s designee in applying for such orders, and a judicial review panel in granting such orders, shall comply with all procedural requirements of section 2518 of Chapter 119 of the United States Code. The Attorney General or the Attorney General’s designee may make emergency applications as provided by section 2518 of Chapter 119 of the United States Code. In applying section 2518 the word “judge” in that section shall be construed to refer to the judicial review panel, unless the context otherwise indicates. The judicial review panel may stipulate any special conditions it feels necessary to assure compliance with the terms of this act.
  3. No judge who sits as a member of a judicial review panel shall preside at any trial or proceeding resulting from or in any manner related to information gained pursuant to a lawful electronic surveillance order issued by that panel.
  4. Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication must be made in writing upon oath or affirmation to the judicial review panel. Each application must include the following information:
    1. The identity of the office requesting the application;
    2. A full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including:
      1. Details as to the particular offense that has been, or is being committed;
      2. Except as provided in G.S. 15A-294(i), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
      3. A particular description of the type of communications sought to be intercepted; and
      4. The identity of the person, if known, committing the offense and whose communications are to be intercepted;
    3. A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
    4. A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter must be added;
    5. A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making adjudication, made to a judicial review panel for authorization to intercept, or for approval of interceptions of wire, oral, or electronic communications involving any of the same persons, facilities, or places specified in the application, and the action taken by that judicial review panel on each such application; and
    6. Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
  5. Before acting on the application, the judicial review panel may examine on oath the person requesting the application or any other person who may possess pertinent information, but information other than that contained in the affidavit may not be considered by the panel in determining whether probable cause exists for the issuance of the order unless the information is either recorded or contemporaneously summarized in the record or on the face of the order by the panel.

History. 1995, c. 407, s. 1; 1997-435, s. 2; 2005-207, s. 1.

Effect of Amendments.

Session Laws 2005-207, s. 1, effective December 1, 2005, added “Except as provided in G.S. 15A-294(i),” in subdivision (d)(2)b.

§ 15A-292. Request for application for electronic surveillance order.

  1. The head of any municipal, county, or State law enforcement agency or any district attorney may submit a written request to the Attorney General that the Attorney General apply to a judicial review panel for an electronic surveillance order to be executed within the requesting agency’s jurisdiction. The written requests shall be on a form approved by the Attorney General and shall provide sufficient information to form the basis for an application for an electronic surveillance order. The head of a law enforcement agency shall also submit a copy of the request to the district attorney, who shall review the request and forward it to the Attorney General along with any comments he may wish to include. The Attorney General is authorized to review the request and decide whether it is appropriate to submit an application to a judicial review panel for an electronic surveillance order. If a request for an application is deemed inappropriate, the Attorney General shall send a signed, written statement to the person submitting the request, and to the district attorney, summarizing the reasons for failing to make an application. If the Attorney General decides to submit an application to a judicial review panel, he shall so notify the requesting agency head, the district attorney, and the head of the local law enforcement agency which has the primary responsibility for enforcing the criminal laws in the location in which it is anticipated the majority of the surveillance will take place, if not the same as the requesting agency head, unless the Attorney General has probable cause to believe that the latter notifications should substantially jeopardize the success of the surveillance or the investigation in general. If a judicial review panel grants an electronic surveillance order, a copy of such order shall be sent to the requesting agency head and the district attorney, and a summary of the order shall be sent to the head of the local law enforcement agency with primary responsibility for enforcing the criminal laws in the jurisdiction where the majority of the surveillance will take place, if not the same as the requesting agency head, unless the judicial review panel finds probable cause to believe that the latter notifications would substantially jeopardize the success of the surveillance or the investigation.
  2. This Article does not limit the authority of the Attorney General to apply for electronic surveillance orders independent of, or contrary to, the requests of law enforcement agency heads, nor does it limit the discretion of the Attorney General in determining whether an application is appropriate under any given circumstances.
  3. The Chief Justice of the North Carolina Supreme Court shall receive a report concerning each decision of a judicial review panel.

History. 1995, c. 407, s. 1.

§ 15A-293. Issuance of order for electronic surveillance; procedures for implementation.

  1. Upon application by the Attorney General pursuant to the procedures in G.S. 15A-291, a judicial review panel may enter an ex parte order, as requested or as modified, authorizing the interception of wire, oral, or electronic communications, if the panel determines on the basis of the facts submitted by the applicant that:
    1. There is probable cause for belief that an individual is committing, has committed, or is about to commit an offense set out in G.S. 15A-290;
    2. There is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
    3. Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
    4. Except as provided in G.S. 15A-294(i), there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by the individual described in subdivision (1) of this subsection.
  2. Each order authorizing the interception of any wire, oral, or electronic communications must specify:
    1. The identity of the person, if known, whose communications are to be intercepted;
    2. The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted, and the means by which such interceptions may be made;
    3. A particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates;
    4. The identity of the agency authorized to intercept the communications and of the person requesting the application; and
    5. The period of time during which such interception is authorized, including a statement as to whether or not the interception automatically terminates when the described communication has been first obtained.
  3. No order entered under this Article may authorize the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. Such 30-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or 10 days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with G.S. 15A-291 and the panel making the findings required by subsection (a) of this section. The period of extension shall be no longer than the panel determines to be necessary to achieve the purpose for which it was granted and in no event for longer than 30 days. Every order and extension thereof must contain a provision that the authorization to intercept be executed as soon as practicable, be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this Article, and terminate upon attainment of the authorized objective, or in any event in 30 days, as is appropriate. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception. An interception under this Article may be conducted in whole or in part by State or federal government personnel, or by an individual operating under a contract with the State or federal government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.
  4. Whenever an order authorizing interception is entered pursuant to this Article, the order may require reports to be made to the issuing judicial review panel showing that progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports must be made at such intervals as the panel may require.
    1. The contents of any wire, oral, or electronic communication intercepted by any means authorized by this Article must be recorded on tape, wire, or electronic or other comparable device. The recording of the contents of any wire, electronic, or oral communication under this subsection must be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, the recordings must be made available to the judicial review panel and sealed under its direction. Custody of the recordings is wherever the panel orders. They may not be destroyed except upon an order of the issuing panel and in any event must be kept for 10 years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of G.S. 15A-294(a) and (b) for investigations. The contents of any wire, oral, or electronic communication or evidence derived therefrom may not be disclosed or used under G.S. 15A-294(c) unless they have been kept sealed.
    2. Applications made and orders granted under this Article must be sealed by the panel. Custody of the applications and orders may be disclosed only upon a showing of good cause before the issuing panel and may not be destroyed except on its order and in any event must be kept for 10 years.
    3. Any violation of the provisions of this subsection may be punished as for contempt.
  5. The State Bureau of Investigation shall own or control and may operate any equipment used to implement electronic surveillance orders issued by a judicial review panel and may operate or use, in implementing any electronic surveillance order, electronic surveillance equipment in which a local government or any of its agencies has a property interest.
  6. The Attorney General shall establish procedures for the use of electronic surveillance equipment in assisting local law enforcement agencies implementing electronic surveillance orders. The Attorney General shall supervise such assistance given to local law enforcement agencies and is authorized to conduct statewide training sessions for investigative and law enforcement officers regarding this Article.

History. 1995, c. 407, s. 1; 1997-435, s. 2.1; 2005-207, ss. 2, 3.

Effect of Amendments.

Session Laws 2005-207, ss. 2 and 3, effective December 1, 2005, added “Except as provided in G.S. 15A-294(i),” in subdivision (a)(4); and in subsection (c), added the second sentence, substituted “shall” for “may” and “30” for “15” in the fourth sentence, deleted “or 15 days” following “30 days” in the fifth sentence, and added the last two sentences.

§ 15A-294. Authorization for disclosure and use of intercepted wire, oral, or electronic communications.

  1. Any investigative or law enforcement officer who, by any means authorized by this Article or Chapter 119 of the United States Code, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
  2. Any investigative or law enforcement officer, who by any means authorized by this Article or Chapter 119 of the United States Code, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may use such contents to the extent such use is appropriate to the proper performance of the officers’ official duties.
  3. Any person who has received, by any means authorized by this Article or Chapter 119 of the United States Code, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom, intercepted in accordance with the provisions of this Article, may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding in any court or before any grand jury in this State, or in any court of the United States or of any state, or in any federal or state grand jury proceeding.
  4. Within a reasonable time, but no later than 90 days after the filing of an application for an order or the termination of the period of an order or the extensions thereof, the issuing judicial review panel must cause to be served on the persons named in the order or the application and such other parties as the panel in its discretion may determine, an inventory that includes notice of:
    1. The fact of the entry of the order or the application;
    2. The date of the entry and the period of the authorized interception; and
    3. The fact that during the period wire, oral, or electronic communications were or were not intercepted.
  5. The notification required pursuant to G.S. 15A-294(d) may be delayed if the judicial review panel has probable cause to believe that notification would substantially jeopardize the success of an electronic surveillance or a criminal investigation. Delay of notification shall be only by order of the judicial review panel. The period of delay shall be designated by the judicial review panel and may be extended from time to time until the jeopardy to the electronic surveillance or the criminal investigation dissipates.
  6. The issuing judicial review panel, upon the filing of a motion, may in its discretion, make available to such person or his counsel for inspection, such portions of the intercepted communications, applications, and orders as the panel determines to be required by law or in the interest of justice.
  7. The contents of any intercepted wire, oral, or electronic communication, or evidence derived therefrom, may not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in any court of this State unless each party, not less than 20 working days before the trial, hearing, or other proceeding, has been furnished with a copy of the order and accompanying application, under which the interception was authorized.
  8. Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of this State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire, oral, or electronic communication, or evidence derived therefrom, on the grounds that:
    1. The communication was unlawfully intercepted;
    2. The order of authorization under which it was intercepted is insufficient on its face; or
    3. The interception was not made in conformity with the order of authorization.Such motion must be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of this motion. If the motion is granted, the contents of the intercepted wire, oral, or electronic communication, or evidence derived therefrom, must be treated as having been obtained in violation of this Article.
  9. In addition to any other right to appeal, the State may appeal:
    1. From an order granting a motion to suppress made under subdivision (1) of this subsection, if the district attorney certifies to the judge granting the motion that the appeal is not taken for purposes of delay. The appeal must be taken within 30 days after the date the order of suppression was entered and must be prosecuted as are other interlocutory appeals; or