State v. Welch ( 1986 )

Justice BILLINGS

concurring.

I disagree with the statement in the majority opinion that “[s]ince the defendant in this case was in custody at the Gaston County Jail when the nontestimonial identification order was issued upon the State’s motion, it was error for the trial court to issue the order.” The conclusion of the majority is based upon a dictum statement in State v. Irick, 291 N.C. 480, 490, 231 S.E. 2d 833, 840 (1977). In Irick, the question involved the admissibility of fingerprint evidence when fingerprints were obtained without a nontestimonial identification order from a defendant in custody. The Court noted that N.C.G.S. § 15A-272 provides that nothing in the article “shall preclude such additional investigative procedures as are otherwise permitted by law,” and that N.C.G.S. § 15A-502(a)(l) allows the police to fingerprint a person when he has been arrested or committed to a detention facility. Therefore, the fingerprints of a person in custody were properly obtained without a need to utilize procedures authorizing nontestimonial identification orders.¹

Unfortunately, the opinion in Irick goes further and says “we hold that Article 14 of Chapter 15A 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.” 291 N.C. at 490, 231 S.E. 2d at 840. That statement by the Court went beyond the interpretation of the statute necessary for decision in that case, and I believe it is an incorrect statement of the law. The majority now compounds the error by applying the statement to hold that the judge in the instant case erred in issuing a nontestimonial identification order because the defendant was in custody.

N.C.G.S. § 15A-272 (1983) specifically and clearly states: “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 suck' additional investigative procedures as are otherwise permitted by law.” [Emphasis added.]

The statute does not limit its post-arrest application to those instances when a defendant has been released pending trial. It clearly provides that the fact that other procedures are otherwise available to obtain the same information from the suspect or defendant does not negate the availability of the procedures provided in Article 14 of Chapter 15A.²

I see no point-in discouraging, much less precluding, law enforcement personnel from obtaining judicial authorization for identification procedures when a defendant is in custody and thus encouraging them to act without judicial screening.

In most instances when a suspect is in custody, the investigating or prosecuting authorities will likely prefer to use other means to obtain information which do not contain the protections required by N.C.G.S. § 15A-279, such as the requirement for counsel and the prohibition on the use of any statement made in the absence of counsel, or the 72-hour delay required by N.C.G.S. § 15A-277. However, if the State chooses to utilize and be limited by the procedures authorized by Article 14 of Chapter 15A, the issuance of a nontestimonial identification order is not error simply because the person ordered to submit to the procedures is already in custody.

In the instant case, I agree that the nature of the evidence sought did not justify elimination of the 72-hour requirement of N.C.G.S. § 15A-274. I also agree that the involuntary drawing of blood is a more intrusive procedure than fingerprinting and that whether the State can forcibly draw a blood sample in the absence of either probable cause and exigent circumstances or a search warrant finding full probable cause without violating the Fourth Amendment to the United States Constitution may be open to question. See Schmerber v. California, 384 U.S. 757, 16 L.Ed. 2d 908 (1966). If the nontestimonial identification order is inadequate to authorize the nonconsensual taking of blood samples, the defect is not because the defendant is in custody, and it would exist in all nontestimonial identification orders for blood samples issued with less than probable cause.

However, in the instant case, I would hold that even though the nontestimonial identification order was invalid because it did not comply with the 72-hour notice requirement, and even if a nontestimonial identification order issued on less than probable cause may not constitutionally authorize the involuntary drawing of blood from a person, since the arrest of the defendant was justified by a determination of probable cause to believe, rather than mere reasonable grounds to suspect, that the defendant committed the murder, the findings justifying the arrest combined with the findings made by the judge in issuing the nontestimonial identification order were sufficient to meet the concerns which underlie the requirement for a search warrant, and that thus the good faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. —, 82 L.Ed. 2d 677 (1984) and Massachusetts v. Sheppard, 468 U.S. —, 82 L.Ed. 2d 737 (1984) is appropriately applied to the evidence obtained in this case. Therefore I concur in the result reached by the Court on the defendant’s second assignment of error. I join in the remainder of the Court’s opinion.

1 . See also State v. Carson, 296 N.C. 31, 39, 249 S.E. 2d 417, 422 (1978) where this Court said “[w]e are advertent to the provisions of Article 14 of Chapter 15A of the General Statutes which require that an order for nontestimonial evidence shall contain a statement that the person is entitled to counsel at the procedure and to appointment of counsel if he cannot afford to retain one. In our opinion, the provisions of this article of the General Statutes are not here applicable since defendant was legally arrested on a misdemeanor charge, and under these circumstances, he could be photographed without the aid of the nontestimonial order.”

2 . Clearly neither the Irick case nor this case limits the right of a defendant to obtain a nontestimonial identification order under N.C.G.S. § 15A-281. I also assume that a nontestimonial identification order pursuant to N.C.G.S. § 7A-599 may be obtained for identification procedures applicable to a juvenile alleged to be delinquent who is in custody, since N.C.G.S. § 7A-596 prohibits nontestimonial identification procedures involving such a juvenile without an order, unless the juvenile has been transferred to superior court for trial as an adult.