State v. Hyleman , 324 N.C. 506 ( 1989 )

Justice Webb

dissenting.

I dissent. Conceding for purposes of argument that the search warrant does not comply with N.C.G.S. § 15A-244(3) I do not believe that N.C.G.S. § 15A-974(2) requires that evidence seized during the search should be suppressed. N.C.G.S. § 15A-974 provides in part:

Upon timely motion, evidence must be suppressed if:

(2) It is obtained as a result of a substantial violation of the provisions of this Chapter. In determining whether a violation is substantial, the court must consider all the circumstances, including:

(a) The importance of the particular interest violated;

(b) The extent of the deviation from lawful conduct;

(c) The extent to which the violation was willful;

(d) The extent to which exclusion will tend to deter future violations of this Chapter.

Considering the matters which the statute says we must consider I do not believe the violation was substantial.

Certainly the right to be free from an unlawful search is an important interest. The deviation from lawful conduct, however, was slight. Mr. Durst applied for a search warrant but, according to the majority, he did not comply with all the requirements in the language he used. I would hold this is not a major deviation from lawful conduct. There is no showing at all that the deviation was willful and the exclusion of this evidence will not tend to deter future violations of the chapter. There is no evidence Mr. Durst did not make a good faith effort to prepare a proper affidavit for a search warrant. That is all we can expect from officers in the future. Considering these statutory factors I believe we should hold the violation was not substantial and evidence seized during the search should be admissible.

I realize that in State v. Carter, 322 N.C. 709, 370 S.E. 2d 553 (1988) we held that there is not a good faith exception under our state Constitution which allows the admission of evidence seized in contravention to our Constitution. This might prevent the admission of the evidence although it should not have been excluded pursuant to N.C.G.S. § 15A-974(2). Suffice it to say I joined in the dissent in Carter and I believe Carter should be overruled.

I vote to affirm the Court of Appeals.

Justices Meyer and Mitchell join in this dissenting opinion.