               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 199PA16

                                 Filed 9 June 2017

STATE OF NORTH CAROLINA

              v.

JOSEPH MARIO ROMANO


      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 785 S.E.2d 168 (2016), affirming an order

entered on 23 March 2015 by Judge R. Gregory Horne in Superior Court, Buncombe

County. On 18 August 2016, the Supreme Court allowed defendant’s conditional

petition for discretionary review as to additional issues. Heard in the Supreme Court

on 20 March 2017.


      Joshua H. Stein, Attorney General, by Derrick C. Mertz, Special Deputy
      Attorney General, for the State-appellant/appellee.

      Glenn Gerding, Appellate Defender, by Constance E. Widenhouse and Andrew
      DeSimone, Assistant Appellate Defenders, for defendant-appellant/appellee.


      BEASLEY, Justice.


      The issue before us in this case is whether N.C.G.S. § 20-16.2(b), which

authorizes law enforcement to obtain a blood sample from an unconscious defendant

who is suspected of driving while impaired without first obtaining a search warrant,

was unconstitutionally applied to defendant. The trial court suppressed the results

of defendant’s blood test on Fourth Amendment grounds, and the Court of Appeals
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                                  Opinion of the Court



affirmed that decision. We now affirm the opinion of the Court of Appeals as modified

herein.


      On 6 October 2014, defendant was indicted for felony habitual driving while

impaired and driving while his license was revoked. These charges were based on

events that occurred on 17 February 2014. On 26 January 2015, defendant filed a

pretrial motion to suppress all evidence gathered after his arrest. The motion was

heard on 2 and 3 February 2015.


      Based on the evidence presented at the suppression hearing, the trial court

found the following facts. On 17 February 2014, Officer Tammy Bryson responded to

a dispatch indicating that a white male wearing his sweater backwards and carrying

a liquor bottle had stopped his SUV in the travel portion of a public road, gotten out

of the vehicle, and stumbled across the multilane highway. Officer Bryson found

Joseph Romano (defendant), who matched the description of the driver, sitting behind

a restaurant “approximately 400 feet from the abandoned SUV.” Officer Bryson

observed that defendant was making incoherent statements, that his speech was

slurred, that he was unable to stand due to his obvious intoxication, and that he

smelled strongly of alcohol and vomit. Officer Bryson determined that defendant’s

faculties were appreciably impaired.     Defendant was arrested for driving while

impaired (DWI), and, due to his extreme level of intoxication, defendant was




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transported to a hospital for medical treatment.          Officer Bryson requested the

assistance of Sergeant Ann Fowler, a Drug Recognition Expert.


       Defendant was belligerent and combative throughout his encounters with law

enforcement and medical personnel.           At the hospital, medical staff and law

enforcement attempted to restrain defendant. Medical personnel determined it was

necessary to medicate defendant to calm him down. Sergeant Fowler told the treating

nurse “that she would likely need a blood draw for law enforcement purposes.” Before

defendant was medicated, Sergeant Fowler did not “advise[ ] [him] of his chemical

analysis rights,” “request[ ] that he submit[ ] to a blood draw,” or obtain a warrant

for a blood search. After defendant was medically subdued, the treating nurse drew

blood for medical treatment purposes; however, the nurse drew more blood than was

needed for treatment purposes and offered the additional blood for law enforcement

use.   Before accepting the blood sample, Sergeant Fowler attempted to get

defendant’s consent to the blood draw or receipt of the evidence, but she was unable

to wake him. The trial court found as fact that “[d]ue to his medically induced state,

the Defendant was rendered unable to meaningfully receive and consider his blood

test rights, unable to give or withhold his informed consent, and/or unable to exercise

his right to refuse the warrantless test.”


       During this entire series of events, multiple officers were present to assist with

the investigation, “such that an officer could have left to drive the relatively short


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distance (only a few miles) to the Buncombe County Magistrate’s Office to obtain a

search warrant.”   Sergeant Fowler was familiar with the blood search warrant

procedure, and search warrants for a blood draw are fill-in-the-blank forms that are

not time-consuming; moreover, magistrates were on duty and available during the

relevant time period.   Sergeant Fowler did not attempt to obtain a warrant for

defendant’s blood nor did she believe any exigency existed. Instead, she “expressly

relied upon the statutory authorization set forth in [subsection] 20-16.2(b),” which

allows the taking and testing of blood from a person who has committed a DWI if the

person is “unconscious or otherwise in a condition that makes the person incapable

of refusal.” After taking possession of defendant’s blood, Sergeant Fowler “drove to

the Buncombe County Magistrate’s Office and swore out warrants for the present

charges,” and then returned to the hospital and served the warrants on defendant.

The trial court found that “nothing prevent[ed] her from obtaining a search warrant

[for defendant’s blood] at the same time she [obtained the other warrants] and then

subsequently seizing the blood.”


      The trial court quoted Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552

(2013), which states that “a warrantless search of the person is reasonable only if it

falls within a recognized exception,” such as “when the exigencies of the situation

make the needs of law enforcement so compelling that a warrantless search is

objectively reasonable under the Fourth Amendment.” Id. at ___, 133 S. Ct. at 1558

(citations omitted). A court “looks to the totality of circumstances” to determine

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whether exigent circumstances justified law enforcement in acting without a

warrant. Id. at ___, 133 S. Ct. at 1559 (citations omitted).


       The trial court concluded as a matter of law that the seizure of defendant’s

blood “was a search subject to Fourth Amendment protection,” and, under “a totality

of the circumstances test, no exigency existed justifying a warrantless search.” The

court concluded that N.C.G.S. § 20-16.2(b) “creates a per se exigency exception to the

warrant requirement,” and as applied here violates the holding in McNeely.

Therefore, “any subsequent testing performed by law enforcement on the seized blood

must be suppressed.”


       At the conclusion of the hearing on 3 February 2015, the court ruled orally on

defendant’s motions to suppress. The court then filed written orders on 23 March

2015.1 The State timely appealed the trial court’s order suppressing the blood test

results.


       The Court of Appeals affirmed the trial court’s order suppressing the test

results of the blood that Sergeant Fowler obtained from defendant at the hospital.

State v. Romano, ___ N.C. App. ___, ___, 785 S.E.2d 168, 175 (2016). The court quoted

McNeely’s holding that “ ‘the natural metabolization of alcohol in the bloodstream’


       1At the suppression hearing, defendant made an oral motion to suppress the car keys
and identification that were retrieved from him before he was transported to the hospital.
The trial court denied suppression of the keys and identification; that order is not at issue in
this appeal.


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does not present a ‘per se exigency that justifies an exception to the Fourth

Amendment’s warrant requirement for nonconsensual blood testing in all drunk-

driving cases.’ ” Id. at ___, 785 S.E.2d at 173 (quoting McNeely, 569 U.S. at ___, 133

S. Ct. at 1556). The Court of Appeals determined that N.C.G.S. § 20-16.2(b) could not

justify a warrantless blood draw from an unconscious DWI defendant because

McNeely “sharply prohibits per se warrant exceptions for blood draw searches.” Id.

at ___, 785 S.E.2d at 174.


      Applying N.C.G.S. § 20-16.2(b) to the instant case, the Court of Appeals opined

that “the record suggests, but does not affirmatively show, that [Sergeant] Fowler

had ‘reasonable grounds’ to believe Defendant . . . was intoxicated while he drove his

SUV,” as opposed to his becoming intoxicated while drinking rum after leaving his

vehicle. Id. at ___, 785 S.E.2d at 174. The court added: “More importantly, Fowler

testified that she did not attempt to obtain a search warrant at any time, even though

the magistrate’s office was ‘a couple of miles’ away from the hospital.” Id. at ___, 785

S.E.2d at 174. The court concluded that

                   [t]he State’s post hoc actions do not overcome the
             presumption that the warrantless search is unreasonable,
             and it offends the Fourth Amendment, the State
             Constitution, and McNeely. As the party seeking the
             warrant exception, the State did not carry its burden in
             proving “the exigencies of the situation made that
             [warrantless] course imperative.”      Coolidge [v. New
             Hampshire], 403 U.S. [443,] 455, 91 S.[ ]Ct. 2022[, 2032
             (1971)]. Under the totality of the circumstances,
             considering the alleged exigencies of the situation, the
             warrantless blood draw was not objectively reasonable.

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                                   Opinion of the Court



             See McNeely, ___ U.S. at ___, 133 S.[ ]Ct. at 1558.

Romano, ___ N.C. App at ___, 785 S.E.2d at 174 (second alteration in original).


      The Court of Appeals also concluded that neither the independent source

doctrine nor the good faith exception to the warrant requirement applied in this case.

Id. at ___, 785 S.E.2d at 174-75. The court first recognized that the State raised these

arguments for the first time on appeal. Then, the court noted that under a previous

Court of Appeals decision, “[t]he independent source doctrine permits the

introduction of evidence initially discovered [during], or as a consequence of, an

unlawful search, but later obtained independently from lawful activities untainted

by the initial illegality.” Id. at ___, 785 S.E.2d at 174 (quoting State v. Robinson, 148

N.C. App. 422, 429, 560 S.E.2d 154, 159 (2002)). The court determined that “[t]he

sequence of events in this case does not follow this framework,” in that the attending

nurse knew that defendant was going to be arrested for DWI and that officers wanted

his blood drawn. Id. at ___, 785 S.E.2d at 174. As such, the court concluded that “the

nurse cannot be an independent lawful source.”            Id. at ___, 785 S.E.2d at 174.

Additionally, the Court of Appeals concluded that “[t]he good faith exception,” which

“allows police officers to objectively and reasonably rely on a magistrate’s warrant

that is later found to be invalid,” id. at ___, 785 S.E.2d at 174 (citation omitted), was

not applicable in this situation because “the officers never attempted to obtain a

search warrant prior to the blood draw,” id. at ___, 785 S.E.2d at 175. Thus, the



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                                   Opinion of the Court



officers could not “objectively and reasonably rely on the good faith exception.” Id. at

___, 785 S.E.2d at 175.


      Both parties sought review of the Court of Appeals’ decision. This Court

allowed both petitions for discretionary review on 18 August 2016.


      After the parties filed their petitions for discretionary review but before they

filed their briefs with this Court, the Supreme Court of the United States decided

Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160 (2016). After we granted

review, in their briefs and oral arguments to this Court, both parties acknowledged

that the Birchfield decision challenges the constitutionality of N.C.G.S. § 20-16.2(b).

Both in its brief and oral argument before this Court, the State recognized that

Birchfield suggests that N.C.G.S. § 20-16.2(b) is unconstitutional. The State noted

the differences between Birchfield and this case, but during oral argument stated

that it could not read Birchfield to suggest anything other than that subsection 20-

16.2(b) was unconstitutional.    Defendant argued that subsection 20-16.2(b) was

unconstitutional as applied to him because it created a per se exception to the warrant

requirement in violation of McNeely and now also Birchfield. Defendant asserted

that under McNeely and Birchfield both exigency and valid consent must be

determined by a totality of the circumstances. Defendant argued that N.C.G.S. § 20-

16.2(b) could only be constitutional if it could be read as allowing a blood draw from

unconscious persons so long as the officer also complied with the Fourth Amendment.


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                                     Opinion of the Court



       The State also argued that the Court of Appeals’ analyses of probable cause,

state action, the independent source doctrine, and the good faith exception were

incorrect and asked this Court to reverse or modify the Court of Appeals’ opinion on

those issues. Defendant argued that the State was procedurally barred from raising

a state action, good faith, or independent source claim because these claims were not

presented to the trial court.


       We now address the application of the Supreme Court’s decisions in Birchfield

v. North Dakota and Missouri v. McNeely to the situation at bar, specifically, the

warrantless blood draw from defendant for purposes of determining blood alcohol

content. We hold that, in light of Birchfield and McNeely, N.C.G.S. § 20-16.2(b) is

unconstitutional as applied to defendant because it permitted a warrantless search

that violates the Fourth Amendment.2 We also hold that the State’s state action,

good faith, and independent source claims are not properly before us.




       2 We recognize that other courts have grappled with the application of McNeely and
Birchfield to implied-consent statutes as applied to unconscious DWI suspects and have
reached differing conclusions. Compare People v. Hyde, 2017 CO 24, ¶ 32, ___ P.3d ___, ___
(holding that blood draw from an unconscious suspect was constitutional because statutory
implied consent satisfies the consent exception to the Fourth Amendment warrant
requirement), with State v. Havatone, 241 Ariz. 506, ___, 389 P.3d 1251, 1253, 1255 (2017)
(holding that the “unconscious clause” of the implied-consent statute was unconstitutional as
applied to the defendant and further determining that the “unconscious clause” can be
constitutionally applied only when exigent circumstances prevent law enforcement from
obtaining a warrant). See generally Bailey v. State, 338 Ga. App. 428, 434 & n.42, 790 S.E.2d
98, 103 & n.42 (2016) (“[I]mplied consent of an unconscious suspect is insufficient to satisfy
the Fourth Amendment.”) (collecting cases).


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                                   Opinion of the Court



      Appellate courts review a trial court’s denial of a motion to suppress to

determine whether the trial court’s findings of fact are supported by competent

evidence, in which event they are conclusively binding on appeal, and whether the

findings of fact support the trial court’s conclusions of law. State v. Brooks, 337 N.C.

132, 140-41, 446 S.E.2d 579, 585 (1994) (citations omitted). Conclusions of law “are

fully reviewable on appeal.” Id. at 141, 446 S.E.2d at 585 (quoting State v. Mahaley,

332 N.C. 583, 592-93, 423 S.E.2d 58, 64 (1992), cert. denied, 513 U.S. 1089, 115 S. Ct.

749 (1995)). Whether a statute is constitutional is a question of law that this Court

reviews de novo. We review the decision of the Court of Appeals for any errors of law.

Id. at 149, 446 S.E.2d at 590 (citations omitted).


      The Fourth Amendment to the United States Constitution and Article I of the

North Carolina Constitution protect the rights of people to be secure from

unreasonable searches and seizures. U.S. Const. amend. IV; N.C. Const. art. I, § 20.

Our courts have held that drawing blood from a person constitutes a search under

both the Federal and North Carolina Constitutions. Schmerber v. California, 384

U.S. 757, 86 S. Ct. 1826 (1966); State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988).

A warrantless search of a person is per se unreasonable unless it falls within a

recognized exception to the warrant requirement. McNeely, 569 U.S. at ___, 133 S.

Ct. at 1558; see also Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022,

2032 (1971).



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                                     Opinion of the Court



       In this case Sergeant Fowler took possession of defendant’s blood from the

treating nurse while defendant was unconscious without first obtaining a warrant in

reliance on N.C.G.S. § 20-16.2(b). Subsection 20-16.2(b) states:

               (b) Unconscious Person May Be Tested. – If a law
              enforcement officer has reasonable grounds to believe that
              a person has committed an implied-consent offense, and
              the person is unconscious or otherwise in a condition that
              makes the person incapable of refusal, the law enforcement
              officer may direct the taking of a blood sample or may
              direct the administration of any other chemical analysis
              that may be effectively performed. In this instance the
              notification of rights set out in subsection (a) and the
              request required by subsection (c) are not necessary.

N.C.G.S. § 20-16.2(b) (2016). Thus, we must determine whether this warrantless

search violated the Fourth Amendment. This Court has never before addressed the

constitutionality of N.C.G.S. § 20-16.2(b). This issue was raised, but not thoroughly

discussed, in the Court of Appeals opinion in State v. Hollingsworth, 77 N.C. App. 36,

334 S.E.2d 463 (1985). In that case the Court of Appeals considered the application

of the warrantless search exception permitted by N.C.G.S. § 20-16.2(b) but ultimately

relied on Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000 (1973), and Schmerber, 384

U.S. 757, 86 S. Ct. 1826, to affirm the constitutionality of the officer’s search and

seizure in that case.3


       3  In State v. Garcia–Lorenzo the Court of Appeals again mentioned N.C.G.S. § 20-
16.2(b) without specifically addressing or discussing the constitutionality of the statute. 110
N.C. App. 319, 430 S.E.2d 290 (1993). In that case the court relied on Schmerber, 384 U.S.
757, 86 S. Ct. 1826, and State v. Howren, 312 N.C. 454, 456, 323 S.E.2d 335, 337 (1984), in
determining that the defendant’s constitutional rights to due process and to be free from
illegal search and seizure were not violated. Garcia–Lorenzo, 110 N.C. App. at 330, 430

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                                      Opinion of the Court



       In Hollingsworth a blood sample was taken from the defendant while he was

unconscious at the hospital. The State argued that the defendant “gave implied

consent to the blood test by operation of the ‘implied consent’ statute,” N.C.G.S. § 20-

16.2. 77 N.C. App. at 40, 334 S.E.2d at 466 (internal citation omitted). The Court of

Appeals observed that “[N.C.]G.S. § 20-16.2 operates to imply consent by an

unconscious driver to a blood alcohol test.” Id. at 41, 334 S.E.2d at 467. The Court

of Appeals, however, did not analyze whether the blood draw from the unconscious

defendant was constitutional based upon an implied-consent rationale. Id. at 41-42,

334 S.E.2d at 467. Instead, the court held that the officer’s actions did not violate the

Fourth Amendment because a blood draw is only slightly intrusive, and probable

cause and exigent circumstances existed, which permitted the officers to draw the

defendant’s blood without a warrant.4 Id. at 44-45, 334 S.E.2d at 468-69. As to the

exigency of destructibility of the evidence, the Court of Appeals relied on Schmerber

in determining that “the body’s breakdown of alcohol in the blood creates the

reasonable risk that the evidence of intoxication will quickly be destroyed.” Id. at 44,

334 S.E.2d at 468 (citing Schmerber, 384 U.S. 757, 86 S. Ct. 1826).5


S.E.2d at 296. The court also concluded that the defendant’s statutory rights under N.C.G.S.
20-16.2 were not violated. Id. at 330-32, 430 S.E.2d at 296-97.
       4 Though Hollingsworth has been credited with upholding N.C.G.S. § 20-16.2(b) as
constitutional, in Hollingsworth the court did not rely on section 20-16.2(b) for its rationale,
and the constitutional analysis of the blood draw in Hollingsworth would have been the same
with or without the statute. 77 N.C. App. at 41-42, 334 S.E.2d at 467.
       5 The Court of Appeals in Hollingsworth premised its decision, as did many courts
across the country, on Schmerber’s holding that indicated that all DWI cases involve exigent

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                                       Opinion of the Court



       In Schmerber v. California the Supreme Court of the United States upheld a

warrantless blood test of an individual arrested for driving under the influence of

alcohol because the officer “might reasonably have believed that he was confronted

with an emergency, in which the delay necessary to obtain a warrant, under the

circumstances, threatened ‘the destruction of evidence.’ ” 384 U.S. at 770, 86 S. Ct.

at 1835 (quoting Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 883 (1964)).

After the Schmerber decision, courts split over “whether the natural dissipation of

alcohol in the bloodstream establishes a per se exigency” that justifies a warrantless,

nonconsensual blood test in drunk-driving investigations. See McNeely, 569 U.S. at

___, 133 S. Ct. at 1558 & n.2. The Supreme Court settled this issue in Missouri v.

McNeely, holding that “the natural dissipation of alcohol in the bloodstream does not

constitute an exigency in every case sufficient to justify conducting a blood test

without a warrant,” id. at ___, 133 S. Ct. at 1568, and that “[w]hether a warrantless

blood test of a drunk-driving suspect is reasonable must be determined case by case

based on the totality of the circumstances,” id. at ___, 133 S. Ct. at 1563.6 Subsection



circumstances based solely on the fact that alcohol begins to naturally dissipate in the blood
stream after a person stops drinking. See, e.g., State v. Shriner, 751 N.W.2d 538 (Minn. 2008)
(holding that the natural dissipation of blood alcohol evidence is per se exigency), cert. denied,
555 U.S. 1137, 129 S. Ct. 1001 (2009); State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399
(same), cert. denied, 510 U.S. 836, 114 S. Ct. 112 (1993); see also State v. Woolery, 116 Idaho
368, 775 P.2d 1210 (1989) (same), overruled by State v. Wulff, 157 Idaho 416, 337 P.3d 575
(2014). The Supreme Court of the United States corrected this interpretation of Schmerber
in its analysis of McNeely as discussed below. See McNeely, 569 U.S. at ___, 133 S. Ct. at
1558-63.
       6   McNeely distinguishes blood-testing cases from other destruction-of-evidence cases

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                                     Opinion of the Court



20-16.2(b), therefore, cannot be constitutionally upheld based on a per se exigency

rationale. Here the trial court aptly noted that this case does not involve a situation

of exigency.


       Though exigency did not relieve Sergeant Fowler of the requirement to obtain

a warrant for a blood draw, the State argued that N.C.G.S. § 20-16.2 authorized

Sergeant Fowler’s actions because a DWI is an implied-consent offense. “[A] search

conducted pursuant to a valid consent is constitutionally permissible.” Schneckloth

v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973). Thus, the State argued

that by driving on the road, defendant consented to having his blood drawn for a blood

test and never withdrew this statutorily implied consent before the blood draw. We

must therefore determine whether the warrantless seizure of defendant’s blood

pursuant to N.C.G.S. § 20-16.2(b) was constitutional as applied to defendant based

on the rationale that the seizure satisfied the consent exception to the warrant

requirement.


       North Carolina’s Uniform Driver’s License Act states that “[a]ny person who

drives a vehicle on a highway or public vehicular area thereby gives consent to a




in which a suspect “has control over easily disposable evidence,” such as Cupp v. Murphy,
412 U.S. at 296, 93 S. Ct. at 2004, in which the defendant was trying to get rid of evidence
under his fingernails. McNeely, 569 U.S. at ___, 133 S. Ct. at 1561. Blood alcohol
concentration, on the other hand, “naturally dissipates over time in a gradual and relatively
predictable manner.” Id. at ___, 133 S. Ct. at 1561.


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chemical analysis if charged with an implied-consent offense.”7 N.C.G.S. § 20-16.2(a)

(2016). Impaired driving is an implied-consent offense. Id. § 20-16.2(a1) (2016).

When a law enforcement officer “has reasonable grounds to believe that the person

charged has committed the implied-consent offense,” the officer “may obtain a

chemical analysis of the person.” Id. § 20-16.2(a).


       Before the administration of any chemical analysis, the person charged must

be informed orally and in writing of the following:

              (1) You have been charged with an implied-consent offense.
                  Under the implied-consent law, you can refuse any test,
                  but your drivers license will be revoked for one year and
                  could be revoked for a longer period of time under
                  certain circumstances, and an officer can compel you to
                  be tested under other laws.

       7In Seders v. Powell, 298 N.C. 453, 259 S.E.2d 544 (1979), this Court discussed the
purpose and rationale for this implied-consent statute.
              By accepting his license and operating a motor vehicle on our
              highways, plaintiff consented to submitting to a [chemical
              analysis] if arrested for driving under the influence. . . . We
              think the legislature wisely enacted the statute in question. Its
              purpose is to provide scientific evidence of intoxication not only
              for the purpose of convicting the guilty and removing them from
              the public highways for the safety of others, but also to protect
              the innocent by eliminating mistakes from objective observation
              such as a driver who has the odor of alcohol on his breath when
              in fact his consumption is little or those who appear to be
              intoxicated but actually suffer from some unrelated cause.
              Public policy behind such a statute is a sound one. It ensures
              civil cooperation in providing scientific evidence and avoids
              incidents of violence in testing by force. It gives an arrested
              person a reasonable time to make up his mind about the test and
              yet does not tie up officers involved for an unreasonable amount
              of time which would interfere with their regular duties.
Id. at 464-65, 259 S.E.2d at 551-52.


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             (2) [Repealed.]

             (3) The test results, or the fact of your refusal, will be
                 admissible in evidence at trial.

             (4) Your driving privilege will be revoked immediately for
                 at least 30 days if you refuse any test or the test result
                 is 0.08 or more, 0.04 or more if you were driving a
                 commercial vehicle, or 0.01 or more if you are under the
                 age of 21.

             (5) After you are released, you may seek your own test in
                 addition to this test.

             (6) You may call an attorney for advice and select a witness
                 to view the testing procedures remaining after the
                 witness arrives, but the testing may not be delayed for
                 these purposes longer than 30 minutes from the time
                 you are notified of these rights. You must take the test
                 at the end of 30 minutes even if you have not contacted
                 an attorney or your witness has not arrived.

Id. “If the person charged willfully refuses to submit to [the] chemical analysis, none

may be given under the provisions of this section, but the refusal does not preclude

testing under other applicable procedures.” N.C.G.S. § 20-16.2(c) (2016). Under

N.C.G.S. § 20-16.2(b), a DWI suspect who is unconscious, however, does not have to

be given notification of his right to refuse any test or given the opportunity to willfully

refuse the test. Id. § 20-16.2(b).


      In 2016, after this case proceeded through the trial court and the Court of

Appeals, and the parties had submitted their petitions for discretionary review to this

Court, the Supreme Court of the United States decided Birchfield v. North Dakota.


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                                    Opinion of the Court



In Birchfield the Supreme Court for the first time addressed the constitutionality of

a blood draw under the rationale of statutory implied consent, as well as whether a

blood draw can be justified as a search incident to arrest.


       The specific issue in Birchfield was “whether motorists lawfully arrested for

drunk driving may be convicted of a crime or otherwise penalized for refusing to take

a warrantless test measuring the alcohol in their bloodstream.” 579 U.S. at ___, 136

S. Ct. at 2172. The Supreme Court concluded that “the Fourth Amendment permits

warrantless breath tests incident to arrest for drunk driving” but does not permit

warrantless blood tests incident to arrest for drunk driving. Id. at ___, 136 S. Ct. at

2184. Additionally, the Supreme Court concluded “that motorists cannot be deemed

to have consented to submit to a blood test [by virtue of an implied-consent statute]

on pain of committing a criminal offense.” Id. at ___, 136 S. Ct. at 2186.


       In Birchfield the Supreme Court first considered whether the warrantless

“search-incident-to-arrest” doctrine applied to breath and blood tests. Using the

analysis in Riley v. California, 573 U.S. ___, ___, 134 S. Ct. 2473, 2484 (2014)—which

assessed the degree to which the search intrudes on an individual’s privacy versus

the degree to which the search is needed to promote a legitimate governmental

interest—the Court determined that a breath test is a permissible search incident to

arrest but a blood test is not. Birchfield, 579 U.S. at ___, ___, 136 S. Ct. at 2176, 2184-

85.   The Court noted that, unlike breath tests, blood tests require an intrusive


                                           -17-
                                   STATE V. ROMANO

                                   Opinion of the Court



piercing of the skin and give law enforcement a sample that can be preserved and

from which more than a blood alcohol reading can be determined. Id. at ___, 136 S.

Ct. at 2178.


      After determining that a warrantless blood test could not be justified as a

search incident to arrest, the Court turned to whether a blood test is permissible

based on a driver’s statutory implied consent to submit to it. The Court noted that

its “prior opinions have referred approvingly to the general concept of implied-consent

laws that impose civil penalties and evidentiary consequences on motorists who

refuse to comply.” Id. at ___, 136 S. Ct. at 2185. Nonetheless, “[t]here must be a limit

to the consequences to which motorists may be deemed to have consented by virtue

of a decision to drive on public roads,” id. at ___, 136 S. Ct. at 2185, and the Court

determined that imposing a criminal penalty for refusing to submit to a blood test

exceeds such a limit, id. at ___, 136 S. Ct. at 2186.


      Here N.C.G.S. § 20-16.2(b) does not impose a criminal penalty for refusal to

submit to a warrantless blood test; rather, the statute allows police to take blood from

an unconscious person suspected of driving while intoxicated on the basis that the

person has given implied consent by choosing to drive on public roads.            Thus,

Birchfield does not answer the specific question before us, namely, whether treating

N.C.G.S. § 20-16.2(b) as a per se consent exception to the warrant requirement is




                                          -18-
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                                     Opinion of the Court



constitutional under the Fourth Amendment.8 Though we do not have definitive

guidance from the Supreme Court, based on the Supreme Court’s Fourth Amendment

precedent regarding consent as well as the rationale and language the Court

employed in McNeely and Birchfield, we conclude that the blood draw from defendant

cannot be justified under N.C.G.S. § 20-16.2(b) as a per se categorical exception to the

warrant requirement.


       Treating subsection 20-16.2(b) as an irrevocable rule of implied consent does

not comport with the consent exception to the warrant requirement because such

treatment does not require an analysis of the voluntariness of consent based on the

totality of the circumstances. “[W]hether a consent to a search was in fact ‘voluntary’

. . . is a question of fact to be determined from the totality of all the circumstances.”

Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2047-48. Further, the State has the burden

to prove that “consent was, in fact, freely and voluntarily given.” Id. at 222, 93 S. Ct.

at 2045 (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792

(1968)). Consent is not voluntary if it is “the product of duress or coercion, express or

implied.” Id. at 227, 93 S. Ct. at 2048. A court’s decision regarding whether a




       8 As discussed above, there is no dispute that the constitutionality of N.C.G.S. § 20-
16.2(b) cannot be upheld under a per se exigency rationale. In McNeely the Supreme Court
concluded that the natural dissipation of alcohol in the blood stream does not always
constitute an exigency justifying the warrantless taking of a blood sample. 569 U.S. at ___,
133 S. Ct. at 1556. Exigent circumstances must be determined by the totality of the
circumstances on a case-by-case basis. Id. at ___, 133 S. Ct. at 1559.


                                            -19-
                                   STATE V. ROMANO

                                   Opinion of the Court



suspect’s consent was voluntary is based on “a careful scrutiny of all the surrounding

circumstances” and does not “turn[ ] on the presence or absence of a single controlling

criterion.” Id. at 226, 93 S. Ct. at 2047. “The standard for measuring the scope of a

suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness .

. . .” Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04 (1991); State v.

Stone, 362 N.C. 50, 53, 653 S.E.2d 414, 417 (2007).


      Additionally, in McNeely, though the Supreme Court only specifically

addressed the exigency exception to the warrant requirement, McNeely, 569 U.S. at

___ n.3, 133 S. Ct. at 1559 n.3, the Court spoke disapprovingly of per se categorical

exceptions to the warrant requirement, id. at ___, 133 S. Ct. at 1564 (“While the desire

for a bright-line rule is understandable, the Fourth Amendment will not tolerate

adoption of an overly broad categorical approach that would dilute the warrant

requirement in a context where significant privacy interests are at stake. . . . [A] case-

by-case approach is hardly unique within our Fourth Amendment jurisprudence.”).

Moreover, language in Birchfield, though not specifically on point, indicates that

taking blood without a warrant is an unreasonable search and seizure under the

Fourth Amendment unless an exception to the warrant requirement applies, such as

exigent circumstances or valid consent.

                    It is true that a blood test, unlike a breath test, may
             be administered to a person who is unconscious (perhaps
             as a result of a crash) or who is unable to do what is needed
             to take a breath test due to profound intoxication or
             injuries. But we have no reason to believe that such

                                          -20-
                                      STATE V. ROMANO

                                      Opinion of the Court



              situations are common in drunk-driving arrests, and when
              they arise, the police may apply for a warrant if need be.

Id. at ___, 136 S. Ct. at 2184-85.9


       Thus, while the specific issue analyzed in Birchfield does not directly address

the constitutionality of N.C.G.S. § 20-16.2(b) as applied to defendant, the reasoning

and analysis in Birchfield and McNeely, as well as other Fourth Amendment

precedent, suggest that blood draws may only be performed after either obtaining a

warrant, obtaining valid consent from the defendant, or under exigent circumstances

with probable cause. Here, because Sergeant Fowler relied on N.C.G.S. § 20-16.2(b)

to take a blood draw outside these circumstances, we conclude that N.C.G.S. § 20-

16.2(b) was unconstitutionally applied to defendant.10


       Here there is no dispute that the officer did not get a warrant and that there

were no exigent circumstances. Regarding consent, the State’s argument was based

solely on N.C.G.S. § 20-16.2(b) as a per se exception to the warrant requirement. To

be sure, the implied-consent statute, as well as a person’s decision to drive on public

roads, are factors to consider when analyzing whether a suspect has consented to a

blood draw, but the statute alone does not create a per se exception to the warrant



       9This statement was made during the Court’s analysis of whether a warrantless blood
draw could be justified as a search incident to arrest. We believe that that the sentiment is
also applicable to our analysis of implied consent.
       10Our analysis here is limited to N.C.G.S. § 20-16.2(b) and does not address any other
provision of the implied-consent statute.


                                             -21-
                                  STATE V. ROMANO

                                   Opinion of the Court



requirement. The State did not present any other evidence of consent or argue that

under the totality of the circumstances defendant consented to a blood draw.

Therefore, the State did not carry its burden of proving voluntary consent. As such,

the trial court correctly suppressed the blood evidence and any subsequent testing of

the blood that was obtained without a warrant.


      We now turn to the State’s remaining concerns regarding the Court of Appeals’

opinion below. To the extent that the Court of Appeals questioned whether Sergeant

Fowler had “reasonable grounds” to believe that defendant had committed the

implied-consent offense of DWI, we modify that portion of the opinion. The Court of

Appeals stated that “[t]he record does not affirmatively show Defendant was

intoxicated while he drove his SUV,” Romano, ___ N.C. App. at ___, 785 S.E.2d at

174; however, a finding of “reasonable grounds” does not require “affirmative proof.”

“Reasonable grounds” in this context is equivalent to “probable cause.” See Moore v.

Hodges, 116 N.C. App. 727, 729-30, 449 S.E.2d 218, 220 (1994) (citations omitted);

Rock v. Hiatt, 103 N.C. App. 578, 584, 406 S.E.2d 638, 642 (1991) (citations omitted).

Probable cause for an arrest requires “a reasonable ground of suspicion, supported by

circumstances sufficiently strong in themselves to warrant a cautious man in

believing the accused to be guilty”; it does not require that “the evidence . . . amount

to proof of guilt, or even to prima facie evidence of guilt.” State v. Harris, 279 N.C.

307, 311, 182 S.E.2d 364, 367 (1971).



                                          -22-
                                  STATE V. ROMANO

                                  Opinion of the Court



      The record shows that defendant stopped his vehicle at a congested

intersection in the middle of the day, left the vehicle while wearing his sweater

backwards, and proceeded to stumble across four lanes of traffic. Defendant had a

bottle of rum in his possession, and had vomited on himself and in his vehicle before

exiting the SUV. When police arrived, defendant was incoherent with slurred speech;

his eyes were bloodshot; he smelled strongly of alcohol; and he could not stand or sit

without assistance. Thus, there was sufficient evidence in the record to show that

Sergeant Fowler had reasonable grounds to believe defendant had committed a DWI

offense. Furthermore, defendant has never contested this issue on appeal and has

conceded that there were reasonable grounds to believe he committed a DWI offense.


      The State also argues that there was no state action and that the good faith

exception and the inevitable discovery and independent source exceptions to the

exclusionary rule are applicable in this case. A review of the record reveals that the

State did not advance these arguments at the suppression hearing; accordingly, the

issues are waived and are not properly before this Court. N.C. R. App. P. 10; see State

v. Cooke, 306 N.C. 132, 136-38, 291 S.E.2d 618, 621-22 (1982) (stating that a party is

limited to specific grounds argued to the trial court and concluding in particular that

the State cannot assert new bases to justify admissibility of evidence obtained from

a warrantless search for the first time on appeal).




                                         -23-
                                   STATE V. ROMANO

                                   Opinion of the Court



      Here defendant argued at the suppression hearing that the statute’s per se

exception to the warrant requirement was unconstitutional under McNeely, and the

trial court specifically asked the parties for additional research regarding “the

constitutionality of the statute . . . in regard to the unconscious defendant.” The State

was aware that the statute’s constitutionality was questionable and that Sergeant

Fowler’s actions may have been illegal.          The State had the opportunity at the

suppression hearing to argue that the good faith exception to the exclusionary rule

should apply if the court determined that the officer’s actions were unconstitutional,

but the State failed to raise the argument. N.C. R. App. P. 10; see, e.g., State v.

Rodrigues, 67 Haw. 496, 498, 692 P.2d 1156, 1158 (1985) (per curiam) (holding that

the State, when seeking reversal of a trial court’s grant of a motion to suppress,

waived the argument that a good faith exception to the exclusionary rule applied

because “the State had never presented the issue . . . to the trial court” and observing

that “[i]t is a generally accepted rule that issues not raised at the trial level will not

be considered on appeal” (citations omitted)).


      Additionally, the trial court explicitly invited the parties to make an argument

regarding whether the nurse was a third-party actor; the State made no argument

that the nurse was not a state actor, or that the seizure of the blood was not an act of

the State and thus, was not subject to the Fourth Amendment’s search and seizure

analysis. See Cooke, 306 N.C. 132, 136, 291 S.E.2d 618, 621 (1982) (concluding that

the State could not advance the argument on appeal that “the Fourth Amendment

                                          -24-
                                    STATE V. ROMANO

                                    Opinion of the Court



does not apply” when it “failed to [present this argument] at the suppression hearing

in the trial court”); see also United States v. McGee, 736 F.3d 263, 269 (4th Cir. 2013)

(noting that the government bears the burden to prove, as an initial matter, that a

challenged search or seizure is not unlawful (citing, inter alia, Welsh v. Wisconsin,

466 U.S. 740, 749-50, 104 S. Ct. 2091, 2097 (1984)), cert denied, ___ U.S. ___, 134 S.

Ct. 1572 (2014).


      Though we do not address the merits of the State’s arguments regarding these

exceptions to the exclusionary rule, we will address the State’s concerns regarding

the Court of Appeals’ statements of law pertaining to these issues. The Court of

Appeals’ opinion seems to limit the federal good faith exception’s11 applicability to

situations in which law enforcement reasonably relies on a magistrate’s warrant that

is later found to be invalid; however, this is not the only situation in which the good

faith exception to the exclusionary rule may apply. For example, the good faith

exception also applies to searches conducted in reasonable reliance on subsequently

invalidated statutes, as well as searches conforming to appellate precedent. See

Davis v. United States, 564 U.S. 229, 237-41, 131 S. Ct. 2419, 2428-29 (2011); Illinois

v. Krull, 480 U.S. 340, 349-60, 107 S. Ct. 1160, 1166-72 (1987). Additionally, to the

extent that the Court of Appeals conflated the state action analysis with the



      11  We specify that this is the federal good faith exception to the exclusionary rule
because in State v. Carter this Court declined to adopt a good faith exception to the state
constitution’s exclusionary rule. 332 N.C. 709, 724, 370 S.E.2d 553, 562 (1988).


                                           -25-
                                  STATE V. ROMANO

                                  Opinion of the Court



independent source and inevitable discovery analysis in concluding that “the nurse

cannot be an independent lawful source,” we clarify that whether a third party is

acting as an agent of the State and whether the independent source exception to the

exclusionary rule applies are separate determinations.


      In sum, we hold that N.C.G.S. § 20-16.2(b) is unconstitutional under the

Fourth Amendment as applied to defendant in this case. We also hold that the State’s

state action, good faith, and independent source claims are not properly before us.


      For the foregoing reasons we affirm as modified herein the Court of Appeals’

opinion affirming the trial court’s order suppressing any testing of defendant’s blood.

We remand this case to the Court of Appeals for further remand to the trial court for

additional proceedings not inconsistent with this opinion.


      MODIFIED AND AFFIRMED; REMANDED.




      Chief Justice MARTIN dissenting.

      Subsection 20-16.2(b) of our General Statutes authorizes the police to direct

the drawing of blood from an unconscious defendant who is suspected of impaired

driving in order to determine the defendant’s blood-alcohol content, based on the

defendant’s implied consent to a blood test. See generally N.C.G.S. § 20-16.2(a)-(b)

(2015). In this case, Sergeant Ann Fowler, a supervising sergeant in the Asheville-



                                         -26-
                                   STATE V. ROMANO

                                  Martin, C.J., dissenting



Buncombe DWI task force, relied in good faith on this statutory provision when she

accepted a portion of defendant’s blood that the attending nurse drew on the day of

defendant’s arrest for impaired driving. At that time, the provision had never been

held unconstitutional.    It may now be unconstitutional, at least as applied to

defendant, but only because of a decision that the Supreme Court of the United States

issued after the State had filed a petition for review of this case in this Court. The

search that was conducted in this case therefore falls into the good faith exception to

the exclusionary rule under federal law. Because of that, and because—contrary to

what the majority says—the State preserved its good faith exception argument for

appeal, I respectfully dissent.

      First, let me address the preservation issue. To understand why the majority

is wrong to say that the State failed to preserve its good faith exception argument, it

helps to look at what happened when.

      In 1993, more than two decades before this case arose, our Court of Appeals

upheld subsection 20-16.2(b) against a Fourth Amendment challenge. In State v.

Garcia–Lorenzo, the Court of Appeals ruled that the defendant in that case, who—

like defendant here—was sedated for medical reasons and then subjected to a blood

draw while unconscious, “had no constitutional right to refuse to submit to chemical

analysis.” 110 N.C. App. 319, 327-30, 430 S.E.2d 290, 294-96 (1993). Citing an

opinion of this Court, the Court of Appeals indicated that the General Assembly had

simply “given the right to refuse to submit to chemical analysis as a matter of grace.”

                                           -27-
                                     STATE V. ROMANO

                                    Martin, C.J., dissenting



Id. at 330, 430 S.E.2d at 296 (citing State v. Howren, 312 N.C. 454, 456, 323 S.E.2d

335, 337 (1984)).     The Court of Appeals also analyzed whether the defendant’s

statutory rights had been violated and found that they had not been. Id. at 330-32,

430 S.E.2d at 296-97. It then held that the evidence derived from the blood draw was

admissible. See id. at 327, 332, 430 S.E.2d at 294, 297.12

       Twenty years later, in 2013, the Supreme Court of the United States decided

Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013). McNeely held that, in

drunk-driving investigations, the dissipation of alcohol in the bloodstream through

natural metabolic processes does not create a per se exigency that would permit a

warrantless blood draw in every case. Id. at ___, 133 S. Ct. at 1556. Instead, the

government has to show, on a case-by-case basis, that exigent circumstances other

than the mere dissipation of alcohol are present. See id. at ___, ___, 133 S. Ct. at

1556, 1568.




       12 The majority downplays Garcia–Lorenzo’s significance by claiming that Garcia–
Lorenzo did not “specifically address[ ] or discuss[ ] the constitutionality of” subsection
20-16.2(b). That is true in a strictly formal sense, but not in any practical sense. In Garcia–
Lorenzo, the Court of Appeals discussed whether the admission of evidence obtained under
the subsection was constitutional, but not whether the subsection itself was constitutional.
See id. at 330, 430 S.E.2d at 296. As I have just noted, however, the Court of Appeals ruled
that an unconscious defendant did not have a constitutional right to refuse a blood draw. See
id. at 328-30, 430 S.E.2d at 295-96. It necessarily followed that, in the Court of Appeals’
view, subsection 20-16.2(b) was constitutional.

                                             -28-
                                  STATE V. ROMANO

                                 Martin, C.J., dissenting



      In 2014, the search and arrest pertinent to this case took place. Defendant was

detained for impaired driving, taken to a hospital for medical treatment, and

subjected to a warrantless blood draw while unconscious.

      In January 2015, defendant filed his motion to suppress. At the suppression

hearing, which took place the next month, Sergeant Fowler testified that she relied

on subsection 20-16.2(b) when she took custody of defendant’s blood, and the State

argued that subsection 20-16.2(b) was constitutional. Defendant responded that,

under McNeely, subsection 20-16.2(b) was unconstitutional because it created a per

se exigent circumstances exception to the warrant requirement. The trial court

agreed with defendant, found that no other exigency to justify a warrantless search

was present in this case, and excluded the blood test results.

      The State appealed. In its brief to the Court of Appeals, the State again argued

that subsection 20-16.2(b) was constitutional. It also argued in its brief to the Court

of Appeals that, even if that subsection were unconstitutional, the good faith

exception to the exclusionary rule would make the evidence in question admissible.

In April 2016, the Court of Appeals affirmed the trial court’s decision. See State v.

Romano, ___ N.C. App. ___, ___, 785 S.E.2d 168, 175 (2016). The State filed a petition

for discretionary review with this Court.

      In June 2016, while the State’s petition was pending in this Court, the

Supreme Court of the United States decided Birchfield v. North Dakota, 579 U.S. ___,



                                          -29-
                                   STATE V. ROMANO

                                  Martin, C.J., dissenting



136 S. Ct. 2160 (2016). Birchfield addressed whether implied-consent laws that make

it a crime for a lawfully arrested drunk-driving suspect to refuse to take a breath test

or a blood test comply with the Fourth Amendment. Id. at ___, ___, 136 S. Ct. at

2166-67, 2184. Early in the Birchfield opinion, the Court suggested that this analysis

hinged on whether a warrantless search of breath or blood is constitutional and said

that, if it is, then refusing to submit to the search can be criminalized. See id. at ___,

136 S. Ct. at 2172-73. Later on in the opinion, the Court found that warrantless

breath tests can be criminalized because they are searches incident to arrest, but that

warrantless blood tests cannot be criminalized under either a search-incident-to-

arrest theory or an implied-consent theory. Id. at ___, 136 S. Ct. at 2184-86. Read

together, these two parts of Birchfield may indicate that it is unconstitutional to

conduct a warrantless blood draw of a suspected drunk driver based only on the

driver’s statutorily inferred consent.     If so, then it would be unconstitutional to

conduct a warrantless blood draw based only on implied consent even when the

suspected drunk driver is unconscious.

      After Birchfield was handed down, this Court allowed the State’s petition for

discretionary review. In its briefing before this Court, the State all but concedes that

subsection 20-16.2(b) is unconstitutional under Birchfield but also argues that it

preserved its good faith argument for appeal, and it continues to argue that the good

faith exception applies here.




                                           -30-
                                       STATE V. ROMANO

                                     Martin, C.J., dissenting



       It is beyond dispute that the State briefed the exclusionary rule’s good faith

exception before the Court of Appeals and again before this Court. So the majority’s

ruling that the State’s good faith argument has not been preserved rises or falls on

whether the State adequately raised that argument before the trial court. The State’s

only justification for accepting the blood drawn by the nurse that Sergeant Fowler

testified about at the suppression hearing, and that the State argued to the trial court

at that hearing, was that Sergeant Fowler had relied on N.C.G.S. § 20-16.2(b).

Because the State clearly argued that Sergeant Fowler relied on this statutory

provision, the majority can maintain that the State failed to preserve its good faith

argument only if, in the majority’s view, the State had to couch its statutory-reliance

argument in the language of the good faith exception. In other words, the majority

must think that it was wrong for the State to do what the State in fact did: argue

before the trial court that Sergeant Fowler reasonably relied on the statute and that

the statute was constitutional.13

       But why should the State have to do otherwise? As we have seen, when the

State opposed defendant’s motion to suppress before the trial court, binding

precedent from our own Court of Appeals seemed to make it clear that subsection 20-



       13The majority also cites State v. Rodrigues, a 1985 case from Hawaii, to support its
argument. See 67 Haw. 496, 498, 692 P.2d 1156, 1158 (1985) (per curiam). But in Rodrigues,
the State of Hawaii relied only on actual consent when arguing before the trial court that the
evidence in question there was admissible. See id. at 497-98, 692 P.2d at 1157-58. Hawaii
did not “even hint[ ]” at the trial court level “that [it] was also relying . . . on a ‘good faith’
exception theory.” Id. at 498, 692 P.2d at 1158.

                                               -31-
                                   STATE V. ROMANO

                                  Martin, C.J., dissenting



16.2(b) withstood Fourth Amendment scrutiny. Did the State really have to make an

alternative argument, in the face of then-binding caselaw that supported its main

argument, that assumed the statute’s invalidity and that used the magic words “good

faith exception”?

        Remember, it was not until Birchfield was decided—and thus not until this

case had already been appealed to this Court—that the Supreme Court called

subsection 20-16.2(b) into constitutional doubt. When this case was still before the

trial court, therefore, the State had every reason to think that Sergeant Fowler had

relied on a constitutionally permitted statute that justified the search of defendant.

        The majority suggests that McNeely changed the equation. Granted, McNeely

had already been handed down when the trial court held the suppression hearing

here.    McNeely’s holding, however, was about exigency—specifically, whether

exigency always exists when the police suspect a person of driving drunk because

alcohol in the bloodstream naturally dissipates over time. McNeely, 569 U.S. at ___,

133 S. Ct. at 1556. Exigency, of course, is an exception to the warrant requirement,

see, e.g., id. at ___, 133 S. Ct. at 1558, meaning that an officer does not need a warrant

to conduct a search when exigent circumstances exist, see, e.g., Kentucky v. King, 563

U.S. 452, 460 (2011). But an officer who has consent to conduct a search does not

need a warrant either. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In

other words, consent and exigency are two separate exceptions to the warrant



                                           -32-
                                   STATE V. ROMANO

                                 Martin, C.J., dissenting



requirement. It follows that an officer with consent to conduct a search does not need

exigent circumstances to justify it.

      This case has always been about consent. As the majority admits, “Sergeant

Fowler did not . . . believe any exigency existed. Instead, she expressly relied upon

the statutory authorization set forth in [subsection] 20-16.2(b) . . . .” (Brackets in

original; internal quotation marks omitted.) And subsection 20-16.2(b) allows an

officer to direct the drawing of blood from an unconscious suspect based on the

suspect’s implied consent. See N.C.G.S. § 20-16.2(a)-(b). McNeely’s holding thus has

no bearing on this case, which hinges on defendant’s consent or lack thereof, not on

exigent circumstances.

      So, given the state of the law as it existed at the time of the suppression

hearing, the State had absolutely no reason to weaken its case by conceding that the

statute on which Sergeant Fowler relied might be unconstitutional.        Controlling

caselaw from our Court of Appeals settled the issue—at least for the purposes of any

proceedings before the trial court—and no higher court had done anything to

undermine that caselaw. In that situation, the State should be allowed to oppose a

suppression motion by depending exclusively on the argument that a statute relied

on for a Fourth Amendment search is in fact constitutional. By refusing to give the

State this tactical option—even when the State has based its whole argument on an

officer’s good faith reliance on a facially valid statute—the majority has effectively

penalized the State for having a strong case.

                                          -33-
                                    STATE V. ROMANO

                                   Martin, C.J., dissenting



       To support its anti-preservation argument, the majority cites Rule 10 of the

North Carolina Rules of Appellate Procedure. But, far from supporting the majority’s

argument, that rule only bolsters my point. It states that, “[i]n order to preserve an

issue for appellate review, a party must . . . stat[e] the specific grounds for the ruling

the party desired the court to make if the specific grounds were not apparent from the

context.” N.C. R. App. P. 10(a)(1) (emphasis added). This rule squarely applies here.

When the State is exclusively arguing before the trial court that an officer relied on

a statute to conduct a search, how could the State not want the trial court to rule that

the officer relied on the statute in good faith? As I will discuss below, as long as the

statute in question is not clearly unconstitutional, that is all that is required for the

good faith exception to apply. So Rule 10 shows that, in this particular context, the

State does not even need to expressly make a good faith exception argument in order

to preserve that argument. A trial court should recognize that if the State loses on

the Fourth Amendment merits, the State will still want the trial court to rule in its

favor based on the good faith exception.

       For all of these reasons, I would hold that the State has preserved its good faith

exception argument for appeal. I now turn to the substantive constitutional question,

which is governed exclusively by federal law.14




        Defendant’s written motion to suppress does not refer to the state constitution, and
       14

his arguments at the suppression hearing were based solely on the Fourth Amendment.


                                            -34-
                                   STATE V. ROMANO

                                  Martin, C.J., dissenting



      In United States v. Leon, the Supreme Court of the United States held that

evidence obtained through a Fourth Amendment violation should not be excluded if,

when conducting the search that led to the evidence, the police rely in good faith on

a search warrant issued by a neutral and detached magistrate, even if the warrant is

later found to lack probable cause. See 468 U.S. 897, 900, 925-26 (1984). The Court

explained that the good faith standard is one of objective, not subjective,

reasonableness. Id. at 919 n.20. Illinois v. Krull then held, based on the principles

announced in Leon, that the good faith exception to the exclusionary rule also applies

when the police rely in good faith on a statute authorizing warrantless searches that

is later found to be unconstitutional. See 480 U.S. 340, 342, 349-55 (1987).

      Although Krull pertained specifically to an administrative search, id. at 342,

the rationale for the good faith exception that both Leon and Krull provide plainly

extends to other kinds of searches as well.         The Court in Leon noted that “the

exclusionary rule is designed to deter police misconduct rather than to punish the

errors of judges and magistrates.” Leon, 468 U.S. at 916. And in Krull, the Court

said that “[t]he approach used in Leon is equally applicable to the present case”

because “suppress[ing] evidence obtained by an officer acting in objectively

reasonable reliance on a statute would have as little deterrent effect” as suppressing

evidence obtained “in objectively reasonable reliance on a warrant.” Krull, 480 U.S.

at 349. Paraphrasing Leon, the Court in Krull commented that “[p]enalizing the

officer for the [legislature’s] error, rather than his own, cannot logically contribute to

                                           -35-
                                   STATE V. ROMANO

                                  Martin, C.J., dissenting



the deterrence of Fourth Amendment violations.” Id. at 350 (second brackets in

original) (quoting Leon, 468 U.S. at 921).

      Other cases that the Supreme Court has handed down since Leon reinforce the

good faith exception’s broad applicability. In Arizona v. Evans, for instance, the Court

addressed whether the good faith exception applies when a police officer reasonably

relies on a police record that indicates the existence of an outstanding arrest warrant

but that is later shown to be erroneous. 514 U.S. 1, 3-4 (1995). Noting that an

employee of a Clerk of Court’s office was the source of the error in that case, the Court

held that the good faith exception applied. Id. at 4, 14-16. More recently, the Court

held that the good faith exception applies “when the police conduct a search in

compliance with binding precedent that is later overruled.” Davis v. United States,

564 U.S. 229, 232 (2011). The reason that all of these cases are decided as they are

boils down to the same core principle: that the exclusionary rule is designed to deter

police misconduct, not misconduct or mistakes by other government actors. See id.;

Evans, 514 U.S. at 14; Krull, 480 U.S. at 349-50; Leon, 468 U.S. at 916.

      In this case, although Sergeant Fowler did not exactly “direct the taking of a

blood sample,” as subsection 20-16.2(b) contemplates, she still relied on that

subsection when she took custody of excess blood from a vial that the attending nurse

had drawn for medical purposes. After all, if subsection 20-16.2(b) permits a blood

draw from an unconscious defendant, it must also permit the lesser intrusion entailed



                                           -36-
                                  STATE V. ROMANO

                                 Martin, C.J., dissenting



by taking custody of blood that has already been drawn for other purposes, which is

what Sergeant Fowler did here.

      Sergeant Fowler’s reliance on subsection 20-16.2(b) was objectively reasonable,

too. “Unless a statute is clearly unconstitutional, an officer cannot be expected to

question the judgment of the legislature that passed the law.” Krull, 480 U.S. at 349-

50. To reiterate, not only was subsection 20-16.2(b) not clearly unconstitutional when

defendant’s blood was drawn; it had already been held constitutional by our Court of

Appeals.

      The good faith exception to the exclusionary rule applies in instances where

“suppression would do nothing to deter police misconduct . . . and . . . would come at

a high cost to both the truth and the public safety.” Davis, 564 U.S. at 232. Because

Sergeant Fowler relied in good faith on N.C.G.S. § 20-16.2(b) when she took custody

of blood drawn by the attending nurse, and because the State preserved its argument

to this effect, I would hold that the good faith exception applies here. I would

therefore reverse the decision of the Court of Appeals and remand for a trial in which

the blood test results that defendant seeks to suppress are deemed admissible under

the Fourth Amendment. As a result, I respectfully dissent.

      Justices NEWBY and JACKSON join in this dissenting opinion.




                                          -37-
      Justice NEWBY dissenting.



      I fully agree with and join the dissenting opinion, which correctly applies our

waiver precedent and thoughtfully discusses the good faith exception. I am also of

the view, however, that, on the record before us, the medical staff who drew

defendant’s blood were not state actors. State action is a threshold consideration in

any Fourth Amendment analysis. Because the constitutional protections against

unreasonable searches and seizures apply only to actions by governmental officials

and their agents, and defendant failed to establish that the medical personnel were

such agents, the blood draw at issue was not a search contemplated by the Fourth

Amendment.

      Defendant received treatment for severe intoxication at a private hospital.

Upon arrival there, defendant was belligerent and combative toward the medical staff

and the officers present. Irrespective of any criminal investigation, “medical staff

determined it was necessary to medicate” defendant and draw his blood, though they

knew law enforcement might require a blood sample for their DWI investigation.

Officers were not present when medical staff drew defendant’s blood. Importantly,

nothing in the record suggests the officers coerced, enticed, induced, or otherwise

instructed medical staff to draw defendant’s blood or to draw more than was

medically necessary.
                                  STATE V. ROMANO

                                  Newby, J., dissenting

      The Fourth Amendment declares, in relevant part, that “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S. Const. amend. IV; see also State v.

Garner, 331 N.C. 491, 506-07, 417 S.E.2d 502, 510-11 (1992) (adopting the inevitable

discovery exception to the exclusionary rule and noting that our state constitution’s

limitation against unreasonable searches and seizures does not confer protections

beyond those afforded by the Fourth Amendment).           “A ‘search’ occurs when an

expectation of privacy that society is prepared to consider reasonable is infringed. A

‘seizure’ of property occurs when there is some meaningful interference with an

individual’s possessory interests in that property.” United States v. Jacobsen, 466

U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984) (footnotes omitted).

      Though a blood draw can constitute a search under the Fourth Amendment,

e.g., Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696,

704 (2013), the Fourth Amendment protects against unreasonable searches or

seizures by state actors exclusively, e.g., Burdeau v. McDowell, 256 U.S. 465, 475, 41

S. Ct. 574, 576, 65 L. Ed. 1048, 1051 (1921) (concluding that the Fourth Amendment

proscribes only unreasonable governmental action); see also State Action, Black’s Law

Dictionary (10th ed. 2014) (“Anything done by a government; . . . an intrusion on a

person’s rights . . . by a governmental entity . . . .”). The Fourth Amendment generally

does not apply to a search or seizure, even an unreasonable one, by a private person.

See Burdeau, 256 U.S. at 475, 41 S. Ct. at 576, 65 L. Ed. at 1051. Thus, evidence



                                          -39-
                                   STATE V. ROMANO

                                   Newby, J., dissenting

obtained from an unreasonable private search need not be excluded from a criminal

trial. See Walter v. United States, 447 U.S. 649, 656, 100 S. Ct. 2395, 2401, 65 L. Ed.

2d 410, 417 (1980) (plurality opinion) (“[A] wrongful search or seizure conducted by a

private party does not violate the Fourth Amendment and . . . does not deprive the

government of the right to use evidence that it has acquired lawfully.” (citing Coolidge

v. New Hampshire, 403 U.S. 443, 487-90, 91 S. Ct. 2022, 2048-50, 29 L. Ed. 2d 564,

595-96 (1971))).

      In certain cases, however, the Fourth Amendment may limit private conduct

when private persons become state actors, thereby acting as “ ‘instrument[s]’ or

agent[s] of the state.” Coolidge, 403 U.S. at 487, 91 S. Ct. at 2048-49, 29 L. Ed. 2d at

595 (citations omitted). Whether a private party becomes a state actor “turns on the

degree of the Government’s participation in the private party’s activities, a question

that can only be resolved ‘in light of all the circumstances.’ ” Skinner v. Ry. Labor

Execs.’ Ass’n, 489 U.S. 602, 614-15, 109 S. Ct. 1402, 1411-12, 103 L. Ed. 2d 639, 658

(1989) (internal citations omitted) (quoting Coolidge, 403 U.S. at 487, 91 S. Ct. at

2049, 29 L. Ed. 2d at 595). Relevant factors include “the degree of governmental

involvement, such as advice, encouragement, knowledge about the nature of the

citizen’s activities, and the legality of the conduct encouraged by the police.” State v.

Sanders, 327 N.C. 319, 334, 395 S.E.2d 412, 422 (1990), cert. denied, 498 U.S. 1051,

111 S. Ct. 763, 112 L. Ed. 2d 782 (1991). The defendant, not the State, bears the

burden of establishing state action, thus triggering the protections of the Fourth



                                           -40-
                                    STATE V. ROMANO

                                   Newby, J., dissenting

Amendment. See State v. Taylor, 298 N.C. 405, 415, 259 S.E.2d 502, 508 (1979) (“[I]t

is well settled that the burden is on defendant to establish [Fourth Amendment]

standing.” (citing, inter alia, Jones v. United States, 362 U.S. 257, 261, 80 S. Ct. 725,

731, 4 L. Ed. 2d 697, 702 (1960), overruled on other grounds by United States v.

Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980))); see, e.g., Sanders,

327 N.C. at 334, 395 S.E.2d at 422 (admitting the evidence because the defendant

“failed to show that [a private citizen’s] seizure specifically of the topaz ring and white

gold watch was” “attributable to the State”).

      Though the State is on solid legal ground in making its statutory argument,

our precedent “requires that we first determine whether, under the facts of this case,

there has been a search.” State v. Reams, 277 N.C. 391, 396, 178 S.E.2d 65, 68 (1970),

cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971), overruled on other

grounds by State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994); see State v. Raynor,

27 N.C. App. 538, 540, 219 S.E.2d 657, 659 (1975) (“Before the legality of an alleged

search may be questioned, it is necessary to first determine whether there has

actually been a search.”); see also Reams, 277 N.C. at 396, 178 S.E.2d at 68 (“[W]hen

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.”). Because the Fourth Amendment’s prohibition

on unreasonable searches operates only against the government and its agents,




                                           -41-
                                  STATE V. ROMANO

                                  Newby, J., dissenting

Burdeau, 256 U.S. at 475, 41 S. Ct. at 576, 65 L. Ed. at 1051, the nature of the actor

remains a threshold question.

      Here the record before us does not support the existence of an agency

relationship between the medical staff of a private hospital and law enforcement.

Nothing in the record suggests the government had anything to do with the blood

draw, and defendant fails to persuasively argue that the blood draw was the result of

state action. To the contrary, the record reflects that law enforcement never asked

the medical staff to draw defendant’s blood and were not in the room during the blood

draw. Nothing suggests that law enforcement prompted, enticed, or induced the

medical staff to draw more blood than medically necessary. Instead, medical staff

drew defendant’s blood for purposes of his medical treatment, irrespective of any

criminal investigation. Whether medical staff knew that law enforcement would

eventually need a sample of defendant’s blood is irrelevant. See State v. Kornegay,

313 N.C. 1, 10-12, 326 S.E.2d 881, 890-91 (1985) (concluding that a private citizen

who copied a defendant’s records to turn over to the State Bureau of Investigation in

exchange for prosecutorial immunity was not a state agent). When the nurse, “of her

own accord,” produced the blood sample, “it was not incumbent on the police to stop

her or avert their eyes.” Coolidge, 403 U.S. at 489, 91 S. Ct. at 2049, 29 L. Ed. 2d at

596. Accordingly, there was nothing wrongful about the State’s “acquisition of the

[vial of blood] or its examination of [its] contents to the extent that [the blood] had




                                          -42-
                                      STATE V. ROMANO

                                      Newby, J., dissenting

already been examined by third parties.” Walter, 447 U.S. at 656, 100 S. Ct. at 2401,

65 L. Ed. 2d. at 417.

       The majority’s puzzling attempt to avoid this issue concludes, in a few lines of

dismissive prose, that the State waived any state action argument. The purpose of

the waiver rule is to “prevent . . . errors . . . that [a] court could have corrected if

brought to its attention at the proper time.” Wall v. Stout, 310 N.C. 184, 188-89, 311

S.E.2d 571, 574 (1984). Here it is beyond dispute that the State briefed the issue of

state action before the Court of Appeals and again before this Court. 15 Moreover, the

trial court recognized that “[t]he issue with regard to the blood . . . [being] drawn by

a third party” was before the court and concluded that “the blood draw . . . [was] a

part of the normal course of treatment and would have occurred without any

subsequent police action.” It is our duty as a jurisprudential court to address state

action as the threshold legal question in any Fourth Amendment analysis.

       Even assuming that a Fourth Amendment search occurred, defendant fails to

persuasively argue that he retained any ongoing expectation of privacy in the vial of



       15  Before the Court of Appeals, the State argued, inter alia, that the blood draw was
for medical purposes and was not “government action.” Before this Court, the State argued,
inter alia, that the blood draw was conducted by a third party actor, not an agent of the police.
       The State has also advanced an argument based upon the independent source
exception to the exclusionary rule. This exception is distinct from the state action
requirement and permits the introduction of evidence initially discovered from an unlawful
search “but later obtained independently from activities untainted by the initial illegality.”
Murray v. United States, 487 U.S. 533, 537, 108 S. Ct. 2529, 2533, 101 L. Ed. 2d 472, 480
(1988). Regardless, the independent source doctrine presupposes that the invasion of privacy
involved a state actor and that a search occurred.


                                              -43-
                                   STATE V. ROMANO

                                   Newby, J., dissenting

blood. See State v. Barkley, 144 N.C. App. 514, 518-19, 551 S.E.2d 131, 134-35, appeal

dismissed, 354 N.C. 221, 554 S.E.2d 646 (2001). The sample here was lawfully

removed from his body, and the State’s analysis of the blood sample did not involve

any further search and seizure of defendant’s person. See id. at 518-20, 551 S.E.2d

at 134-35; see also Washington v. State, 653 So. 2d 362, 364 (Fla. 1994) (per curiam)

(concluding that once the samples were validly obtained in one case, the State was

not prohibited from using them in another case), cert. denied, 516 U.S. 946, 116 S. Ct.

387, 133 L. Ed. 2d 309 (1995); Bickley v. State, 227 Ga. App. 413, 415, 489 S.E.2d 167,

170 (1997) (finding no constitutional violation when the defendant’s blood was drawn

pursuant to a warrant and used in an unrelated case, noting that, “[i]n this respect,

DNA results are like fingerprints which are maintained on file by law enforcement

authorities for use in further investigations” (brackets in original)); Smith v. State,

744 N.E.2d 437, 439 (Ind. 2001) (stating that once a DNA profile is obtained, the

owner no longer has any possessory or ownership interest in it);               Wilson

v. State, 132 Md. App. 510, 550, 752 A.2d 1250, 1272 (2000) (concluding that the

lawful use of the defendant’s DNA in an unrelated case did not violate his Fourth

Amendment rights because the defendant lost “[a]ny legitimate expectation of privacy

that [he] had in his blood . . . when that blood was validly seized”).

      To be sure, “an invasion of bodily integrity implicates an individual’s ‘most

personal and deep-rooted expectations of privacy.’ ” McNeely, ___ U.S. at ___, 133 S.

Ct. at 1558, 185 L. Ed. 2d at 704 (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S.


                                           -44-
                                  STATE V. ROMANO

                                  Newby, J., dissenting

Ct. 1611, 1616, 84 L. Ed. 2d 662, 668 (1985)). Such an expectation should be jealously

guarded from unreasonable government intrusion.           Nevertheless, the Fourth

Amendment proscribes only unreasonable governmental action and does not apply to

a search or seizure, even an unreasonable one, effectuated by a private party not

acting as a governmental agent.

      In sum, the threshold question in any Fourth Amendment analysis is whether

a person’s reasonable expectation of privacy was invaded by a governmental official

or agent. The majority’s analysis erroneously overlooks this foundational principle.

Because the constitutional protections against unreasonable searches and seizures

apply only to actions by governmental officials and their agents, and defendant failed

to establish that the medical staff were such agents, the blood draw at issue was not

a search contemplated by the Fourth Amendment.




                                          -45-
