                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA19-250

                              Filed: 21 January 2020

Alamance County, No. 13 CRS 3976

STATE OF NORTH CAROLINA

             v.

WILLIAM LEE SCOTT


      Appeal by defendant from judgment entered 23 July 2018 by Judge Paul C.

Ridgeway in Alamance County Superior Court. Heard in the Court of Appeals 15

October 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
      Hathcock, for the State.

      Franklin E. Wells, Jr., for defendant-appellant.


      TYSON, Judge.


      William Lee Scott (“Defendant”) appeals from a judgment entered after a jury

found him guilty of second-degree murder and felony death by vehicle. The trial court

arrested judgment in the felony death by vehicle and entered judgment and sentenced

Defendant on the conviction for second-degree murder. We find no prejudicial error.

                                   I. Background

      During the afternoon of 21 June 2013, Jose Munoz (“Munoz”) was driving on

University Drive in Elon. He observed a green Jeep vehicle pass him in a no-passing
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                                   Opinion of the Court



zone at a high rate of speed. Munoz depressed his brake pedal to allow the green

Jeep “to get in [his lane] and not hit” oncoming traffic. When Munoz arrived at the

intersection of Manning Drive and University Drive, he observed the green Jeep had

collided with a 2003 white Chevrolet Impala vehicle, which had attempted to make a

left turn. Munoz also observed Defendant seated in the driver’s seat of the green Jeep

with blood on his face and Veocia Warren (“Warren”) apparently deceased seated

inside the white Chevrolet.

      Burlington Police Officer Michael Giroux (“Lt. Giroux”) was the first responder

to arrive on the scene. Giroux also serves as a part-time volunteer lieutenant with

the Elon Fire and Rescue Department.          Lt. Giroux observed “an approximately

[seventy] year old black female in the driver’s seat [of the white Impala vehicle] with

her face covered with blood who was unresponsive and did not appear to be

breathing.”

      John Cuthriell (“Cuthriell”) of the Alamance County Rescue Department also

arrived on the accident scene. Cuthriell observed “significant amounts of trauma to

[Warren].” “There was blood visible and the head was essentially cocked at an angle

that [he] did not believe that the patient’s condition to be sustainable of life.”

      Both Cuthriell and Lt. Giroux checked Warren and were unable to detect a

pulse in her carotid artery by feel or by using an oximeter. They used a heart monitor




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to check for electrical activity in her heart. After they were unable to find an electrical

rhythm, Warren was pronounced dead at the scene.

      Warren sustained multiple abrasions and lacerations to her head, her upper

body and her lower extremities, a possible broken neck, and a fracture to her left arm.

Her cause of death was listed as multiple blunt force trauma.

      Elon Assistant Fire Chief Charles Walker (“Asst. Chief Walker”) arrived on the

scene and began assisting Defendant. Asst. Chief Walker observed Defendant, while

he was still restrained in the driver’s seat of the green Jeep. Defendant was observed

to be “in and out” of consciousness. Defendant was removed from his vehicle, placed

on a backboard, and transported by ambulance to Moses Cone Hospital (“Hospital”)

in Greensboro.

      After finishing his investigation at the accident scene, Elon Police Lieutenant

Jim Giannotti (“Lt. Giannotti”) went to the Hospital to speak with Defendant. Upon

arrival, he was informed Defendant had already been released from the Hospital. Lt.

Giannotti contacted Defendant at his girlfriend’s house later that day.

      Defendant was described as “really, really upset” and crying when he learned

of Warren’s death. Defendant stated he remembered seeing the white car as she

approached his vehicle, and “the next thing [he] knew she was in front of his lane.

And that [he] tried to get out of the way of it.” Defendant further stated he was going

“the speed limit or a little over” at the time of the crash.



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       Lt. Giannotti observed Defendant “didn’t seem impaired” but noted “he just

seemed different.” In his accident report, Lt. Giannotti determined that Warren’s

vehicle was in Defendant’s right-of-way or “in his path of travel” at the time of the

collision.

                                  A. Blood Evidence

       Investigators sought and obtained a court order for release of Defendant’s

medical records from the Hospital. Lt. Giannotti obtained the order from the Elon

Police Department.    Five days after the accident Lt. Giannotti returned to the

Hospital to determine whether Defendant’s blood had been drawn and tested. The

Hospital confirmed that Defendant’s blood was drawn shortly after his arrival in the

emergency department.

       In addition to the blood tests and results for the purposes of diagnosing

Defendant’s injuries incurred in the accident, the Hospital produced three vials of

blood. The Hospital did not conduct any toxicology tests on Defendant’s blood. Each

vial was labeled with Defendant’s name (Scott, William) and Medical Record Number:

(MRN: 030043599). All three vials were closed, two of them with a red snap and one

vial was closed with a purple top, to signify the vial contained an anti-coagulate, but

no preservatives.

       Lt. Giannotti received the three vials from the Hospital and drove them to the

State Bureau of Investigation (“SBI”) laboratory in Raleigh. The SBI’s laboratory test



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results showed Defendant’s blood alcohol concentration was .22 grams of alcohol per

100 milliliters of blood.

                                 B. Speed Evidence

       North Carolina Highway Patrol Sergeant Stephen Myers (“Sgt. Myers”) was

dispatched to the scene of the crash as a member of the Accident Reconstruction Unit.

The posted speed limit at the intersection of University Drive and Manning Drive

was forty-five miles per hour.

       Sgt. Myers utilized a data retrieval tool to download information from the

computer of Defendant’s vehicle. The data Sgt. Myers retrieved indicated the Jeep’s

speed five seconds prior to the crash was seventy-eight miles per hour with a fifty-

three percent accelerator pedal and a forty-seven percent engine throttle. The data

also indicated that a tenth of a second before impact, Defendant’s green Jeep was

traveling at seventy-three miles per hour, with zero percent accelerator pedal, and

the brake pedal was depressed.

       Two months after the crash, Elon Police Lieutenant Kelly Blackwelder and

Detective Brian Roof conducted a follow-up interview with Defendant at his home in

Burlington.    Defendant stated that on the day of the crash he visited several

construction sites, traveled back to his house to retrieve a tool, and to a pharmacy to

buy some ear drops. Defendant further stated he was “maybe going 58, maybe 60




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miles per hour” at the time of the crash and that he was “not much of a speeder in

general. Not even on the Interstate.”

      Defendant stated he had seen Warren’s Impala in the roadway on Manning

Avenue but noted “it happened so quickly.” Defendant thought Warren had probably

run a stop sign. The last thing Defendant recalled from the incident was slamming

on his brakes and trying to stop his car to avoid Warren’s vehicle in his lane of travel.

Defendant denied consuming alcohol or medication prior to the crash.

      Defendant was indicted for second-degree murder, felony death by vehicle, and

misdemeanor death by vehicle on 3 September 2013. On 13 April 2018, Defendant

filed a motion to suppress and memorandum of law seeking to exclude the results of

the blood samples obtained from the Hospital. The same day, Defendant also filed a

motion in limine and memorandum of law seeking to exclude the same blood evidence.

Defendant’s motion to suppress was heard on 6 July 2018 and denied by order on 16

July 2018. On 16 July 2018 the State dismissed the misdemeanor death by vehicle

charge. Defendant’s trial began 17 July 2018.

      The jury’s verdict found Defendant was guilty of second-degree murder and

felony death by vehicle. The trial court sentenced Defendant in the mitigated range

to an active term of 120-156 months and arrested judgment on the conviction for

felony death by vehicle. Defendant gave written notice of appeal.

                                    II. Jurisdiction



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      This Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b) and

15A-1444(a) (2017).

                                       III. Issues

      Defendant argues the trial court erred by denying his motion to suppress blood

evidence obtained pursuant to a court order.

                                IV. Motion to Dismiss

                                A. Standard of Review

      Our review of a trial court’s denial of a motion to suppress is “strictly limited

to determining whether the trial judge’s underlying findings of fact are supported by

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

whether those factual findings in turn support the judge’s ultimate conclusions of

law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court’s

conclusions of law . . . are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200,

208, 539 S.E.2d 625, 631 (2000).

                                      B. Analysis

                         1. Admission of Blood Test Results

      Defendant asserts the trial court’s denial of his motion to suppress blood

evidence was error. He argues the court order authorizing blood evidence to be

collected and tested was insufficient under the statutes.




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      The trial court issued its order requiring the Hospital to release Defendant’s

medical records under N.C. Gen. Stat. § 8-53 (2017), which provides:

             No person, duly authorized to practice physic or surgery,
             shall be required to disclose any information which he may
             have acquired in attending a patient in a professional
             character, and which information was necessary to enable
             him to prescribe for such patient as a physician, or to do
             any act for him as a surgeon, and no such information shall
             be considered public records under G.S. 132-1. Confidential
             information obtained in medical records shall be furnished
             only on the authorization of the patient, or if deceased, the
             executor, administrator, or, in the case of unadministered
             estates, the next of kin. Any resident or presiding judge in
             the district, either at the trial or prior thereto, or the
             Industrial Commission pursuant to law may, subject
             to G.S. 8-53.6, compel disclosure if in his opinion disclosure
             is necessary to a proper administration of justice. If the
             case is in district court the judge shall be a district court
             judge, and if the case is in superior court the judge shall be
             a superior court judge.

      In evaluating the district court’s order to release Defendant’s medical records

under N.C. Gen. Stat. § 8-53, we are guided by our Supreme Court’s precedent in the

case of In re Superior Court Order, 315 N.C. 378, 338 S.E.2d 307 (1986). “[T]he trial

judge must be presented with something more than the complainant’s bare allegation

that it is the best interest of justice to allow the examination.” Id. at 381, 338 S.E.2d

310. The movant must show by an “affidavit or similar evidence setting forth facts

or circumstances sufficient to show reasonable grounds to suspect that a crime has

been committed, and that the records sought are likely to bear upon the investigation

of that crime.” Id.


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       The officer’s Application for Order contained a “bare allegation” that a fatality

had occurred during a car crash. No affidavit or any evidence of a crime being

committed or any indicia to raise a reasonable suspicion was included.       When the

order was sought, the collision had been preliminarily declared to have been caused

by Warren’s vehicle being in Defendant’s right of way and lane of travel at the time

of the collision.

       In State v. Smith, 248 N.C. App. 804, 805 789 S.E.2d 873,874 (2016), an officer

responding at the scene of a motorcycle crash had noted “the strong odor of alcoholic

beverage . . . emanating from [the defendant’s] breath as he was trying to speak and

breathe.” Another officer investigating the crash “noticed the ‘very strong’ odor of

alcohol on [the defendant’s] breath.” Id. at 805, 789 S.E.2d at 874. At the hospital,

the same investigating officer “continued to detect a strong odor of alcohol on [the

defendant’s] breath and observed that [the defendant] had bloodshot eyes and slurred

speech.” Id. The officer concluded “it was more probable rather than not that [the

defendant had been] driving under the influence of alcohol.” Id.

       Here, no allegation or indication of Defendant’s purported intoxication was

asserted in the record or in the Application for Order.          None of the officers,

firefighters, or paramedics on the scene, nurses, physicians, or investigating officers

in close and direct contact with Defendant at the hospital noticed any signs of

impairment at the time of the collision or thereafter.



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                                   Opinion of the Court



      The first and only indication of Defendant’s intoxication were results of tests

on Defendant’s blood samples taken from the Hospital and tested over a week later

at the SBI laboratory. The trial court’s order on Defendant’s motion to suppress

specifically found “the affidavit and order entered in this case on June 26, 2013 would

fail” under N.C. Gen. Stat. § 8-53, but denied Defendant’s motion to suppress and

admitted the results of the blood tests under N.C. Gen. Stat. § 90-21.

      We agree the trial court’s order cannot be sustained under N.C. Gen. Stat. § 8-

53, but this does not end our analysis of the order. This Court has held a “trial court’s

ruling must be upheld if it is correct upon any theory of law, and thus it should not

be set aside merely because the court gives a wrong or insufficient reason for it.” State

v. Turner, 239 N.C. App. 450, 455, 768 S.E.2d 356, 359 (2015). N.C. Gen. Stat. § 90-

21.20B may provide a statutory method for a “judicial official” to order the disclosure

of private health information in the event of a vehicle crash. See Smith, 248 N.C. App.

at 814-15, 789 S.E.2d at 879-80.

      N.C. Gen. Stat. § 90-21.20B(a1) (2017) provides:

             Notwithstanding any other provision of law, if a person is
             involved in a vehicle crash:

                    (1) Any health care provider who is providing
                    medical treatment to the person shall, upon request,
                    disclose to any law enforcement officer investigating
                    the crash the following information about the
                    person: name, current location, and whether the
                    person appears to be impaired by alcohol, drugs, or
                    another substance.


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                                  Opinion of the Court




                    (2) Law enforcement officers shall be provided access
                    to visit and interview the person upon request,
                    except when the health care provider requests
                    temporary privacy for medical reasons.

                    (3) A health care provider shall disclose a certified
                    copy of all identifiable health information related to
                    that person as specified in a search warrant or an
                    order issued by a judicial official.

      The State asserts the trial court’s ruling on Defendant’s motion to suppress

was proper under this statute. It argues Defendant’s blood was drawn in the regular

course of medical treatment after arrival in the Hospital’s emergency department

with injuries from a motor vehicle crash. The samples were not drawn at the request

or suggestion of a law enforcement officer or in connection with any pending

investigation. The Hospital conducted routine blood draws upon Defendant’s arrival

in the emergency department to diagnose his condition for medical treatment.

      Application of the car crash provisions of this statute falls outside of the

statutes at issue and reviewed in Mitchell v. Wisconsin, __ U.S. __, __ n.1, 204 L. Ed.

2d 1040, 1044 n.1 (2019). (“Wisconsin also authorized BAC testing of drivers involved

in accidents that cause significant bodily harm, with or without probable cause of

drunk driving. We do not address those provisions.” (citation omitted)). The Supreme

Court of the United States’ plurality opinion in Mitchell does not support the State’s

argument.




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                                  Opinion of the Court



      In addition, the trial court’s order does not base its reasoning upon exigent

circumstances to draw blood without a warrant from an incapacitated person, who is

under suspicion for drunk driving.      “[T]he 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.” State v. Romano, 369 N.C. 678, 687, 800

S.E.2d 644, 656 (2017) (quoting Missouri v. McNeely, 569 U.S. 141, 165, 185 L. Ed.

2d 696, 715 (2013)).

      The State’s reliance on State v. Smith is also inapposite. The facts in Smith

involved a search warrant for the defendant’s test results and did not involve whether

the search warrant was supported by sufficient probable cause. Smith, 248 N.C. App.

at 815, 789 S.E.2d at 879. This Court concluded the “identifiable health information”

in § 90-21.2-B(a1)(3) requires a search warrant or judicial order that “specifies the

information sought.” Id.

      However, a valid order remains subject to the reasonable suspicion standard

required by our Supreme Court’s opinion in In re Superior Court Order, 315 N.C. at

382, 338 S.E.2d at 307. A search warrant remains subject to the probable cause

standard contained in N.C. Gen. Stat. § 15A-244 (2017). As noted above, the order

before us is not based upon either reasonable suspicion or probable cause.

      Under N.C. Gen. Stat. § 8-53, the only evidence tending to show Defendant was

impaired by intoxication was the results of Defendant’s blood draws, which were



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                                    Opinion of the Court



conducted at the SBI laboratory more than a week after the blood had been drawn at

the Hospital. Defendant’s motion to suppress should have been sustained and the

blood test results should have been excluded. Defendant’s second-degree murder

conviction cannot be supported on a theory of intoxication to provide the required

element of malice. Because we reach this conclusion that the admission of the test

results of Defendant’s blood was error, we do not need to address Defendant’s

remaining arguments related to the denial of the motion to suppress the results of

the blood evidence.

                          2. Speeding and Reckless Driving as Malice

      The trial court also instructed the jury on two other grounds from which it

could find the requisite malice to support a conviction for second-degree murder:

              b. The laws of this State make it unlawful to drive in
             excess of the posted speed limit. To establish that the
             Defendant drove in excess of the posted speed limit, the
             State must prove the following two things beyond a
             reasonable doubt.

                      i. A speed limit was lawfully posted by appropriate
                      signs erected by proper authorities giving motorists
                      notice of the speed limit on University Drive giving
                      motorists notice of the speed limit; and

                      ii. that the defendant drove a vehicle on this portion
                      of the highway at a speed exceeding the posted speed
                      limit.

             c. The laws of this State make it unlawful to drive
             recklessly.    To establish that the Defendant drove
             recklessly, the State must prove the following two things


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                                  Opinion of the Court



             beyond a reasonable doubt.

                   i. That the defendant drove a vehicle upon a street
                   or highway; and

                   ii. That he drove that vehicle in disregard of posted
                   speed limits and marked no passing lanes and that
                   in doing so he acted carelessly and heedlessly in
                   willful or wanton disregard of the rights or safety of
                   others.

This instruction followed the pattern jury instruction. See N.C.P.I. -- Crim. 206.32A

(2010). The jury was instructed on two additional and distinct theories of Defendant’s

unlawful conduct to support a finding of malice, for second-degree murder, in addition

to Defendant’s intoxication.

                       a. Eyewitness and Officers’ Testimony

      The State presented the testimony of Munoz, who had observed Defendant’s

green Jeep pass him at a high rate of speed in a no-passing zone immediately prior

to the collision. Munoz testified he had to slow his vehicle down to allow Defendant’s

green Jeep back into the lane and avoid a collision. He continued driving to the scene

and personally observed that the green Jeep had collided with the white Chevrolet.

      The State also provided the testimony of Sgt. Myers, who had examined

Defendant’s vehicle’s computer. This data tended to show Defendant’s vehicle was

traveling seventy-eight miles per hour five seconds prior to the crash and was

traveling seventy-three miles per hour near the point of impact, while in a forty-five

mile per hour speed zone.


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                                  Opinion of the Court



      Because the jury returned a general verdict form that did not specify the

specific ground to support malice, and Defendant did not object to this testimony nor

challenge any of the jury instructions to support the element of malice, evidence of

these other two theories support Defendant’s conviction for second-degree murder.

Contrary to the assertion in our colleague’s dissent, Defendant has not argued and

cannot show any error on the blood test results of intoxication is prejudicial under

either of these grounds to warrant a new trial.

                              b. Rule 404(B) Evidence

      N.C. Gen. Stat. § 8C-1, Rule 404(b) (2017) provides:

             Evidence of other crimes, wrongs, or acts is not admissible
             to prove the character of a person in order to show that he
             acted in conformity therewith. It may, however, be
             admissible for other purposes, such as proof of motive,
             opportunity, intent, preparation, plan, knowledge,
             identity, or absence of mistake, entrapment or accident.

      The trial court admitted, over Defendant’s objection, a certified copy of

Defendant’s three judgments and convictions for driving while impaired, two

instances of speeding, driving while license revoked, and no operator’s license. The

State argues the evidence of Defendant’s prior traffic offenses is properly admitted

under Rule 404(b) and shows his intent, knowledge, or absence of mistake to support

malice as an essential element of second-degree murder. We agree.

      “[P]rior driving convictions of a defendant are admissible to show malice, and

the showing of malice in a second-degree murder case is a proper purpose within the


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                                   Opinion of the Court



meaning of Rule 404(b).” State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d 196, 206

(2002) (Greene, J., dissenting), rev’d per curiam per the dissent, 357 N.C. 43, 577

S.E.2d 619 (2003). Defendant’s argument is without merit and is overruled.

                                    V. Conclusion

      The admission of the later SBI laboratory alcohol test results of Defendant’s

blood, which was drawn a week earlier at the Hospital immediately following the

accident, was erroneous under either statute. The State provided substantial

evidence of both Defendant’s high speed and his reckless driving, together with his

prior record, to show malice to support Defendant’s conviction for second-degree

murder.

      Defendant has failed to carry his burden to show any prejudicial error in the

denial of the motion to suppress. Defendant received a fair trial, free from prejudicial

errors he preserved and argued. We find no prejudicial error in the jury’s verdict or

in the judgment entered thereon. It is so ordered.

      NO PREJUDICIAL ERROR.

      Judge BRYANT concurs in the result.

      Judge BROOK concurs in part and dissents in part with separate opinion.




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 No. COA19-250 – State v. Scott


         BROOK, Judge, concurring in part and dissenting in part.


         I join the portion of the lead opinion holding that neither of the orders entered

by the district court or superior court allowing the State to obtain and introduce

evidence that Defendant was impaired at the time his vehicle collided with Ms.

Warren’s were based on evidence showing reasonable suspicion that Defendant had

committed any crime. I therefore concur in the holding that Defendant’s motion to

suppress this evidence should have been granted. However, I respectfully dissent

from the portion of the lead opinion holding that admission of this evidence in

violation of Defendant’s Fourth Amendment rights did not constitute prejudicial

error.    This error was not harmless beyond a reasonable doubt.            Defendant is

therefore entitled to a new trial.

                             I. Fourth Amendment Violation

         The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures[.]” U.S. Const. amend. IV. The U.S. Supreme Court has observed:

               [t]he interests in human dignity and privacy which the
               Fourth Amendment protects forbid any such intrusions on
               the mere chance that desired evidence might be obtained.
               In the absence of a clear indication that in fact such
               evidence will be found, these fundamental human interests
               require law officers to suffer the risk that such evidence
               may disappear unless there is an immediate search.

Schmerber v. Cal., 384 U.S. 757, 769-70, 86 S. Ct. 1826, 1835, 16 L. Ed.2d 908 (1966).

“The Amendment thus prohibits ‘unreasonable searches,’ . . . [and] the taking of a
                                     STATE V. SCOTT

                    BROOK, J., concurring in part and dissenting in part



blood sample . . . is a search.” Birchfield v. North Dakota, ___ U.S. ___, ___, 136 S.

Ct. 2160, 2173, 195 L. Ed.2d 560 (2016). See also State v. Romano, 369 N.C. 678, 685,

800 S.E.2d 644, 649 (2017) (“drawing blood . . . constitutes a search under both the

Federal and North Carolina Constitutions”).           “The reasonableness of a search

depends on the totality of the circumstances, including the nature and purpose of the

search and the extent to which the search intrudes upon reasonable privacy

expectations.” Grady v. North Carolina, 575 U.S. 306, 310, 135 S. Ct. 1368, 1371, 191

L. Ed.2d 459 (2015) (per curiam). Blood tests, in particular, (1) “require piercing the

skin and extract a part of the subject’s body”; (2) are “significantly more intrusive

than blowing into a tube”; and (3) “place[] in the hands of law enforcement authorities

a sample that can be preserved and from which it is possible to extract information

beyond a simple BAC reading.” Birchfield, ___ U.S. at ___, 136 S. Ct. at 2178 (internal

marks and citation omitted).

      As a general matter, the Fourth Amendment requires the issuance of a

warrant supported by probable cause to effectuate a search and seizure. Terry v.

Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80, 20 L. Ed.2d 889 (1968). There are

exceptions to this requirement, however.          For instance, law enforcement may

effectuate a brief investigatory seizure of a person to search for weapons if based upon

reasonable suspicion. Id. at 27, 88 S. Ct. at 1883. As this Court has observed,

             [r]easonable suspicion is a less demanding standard than
             probable cause and requires a showing considerably less


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                                     STATE V. SCOTT

                    BROOK, J., concurring in part and dissenting in part



             than preponderance of the evidence. The standard is
             satisfied by some minimal level of objective justification. A
             court must consider ‘the totality of the circumstances—the
             whole picture’ in determining whether a reasonable
             suspicion to make an investigatory stop exists. When a
             defendant in a criminal prosecution makes a motion to
             suppress evidence obtained by means of a warrantless
             search, the State has the burden of showing, at the
             suppression hearing, how the warrantless search was
             exempted from the general constitutional demand for a
             warrant.

State v. Smathers, 232 N.C. App. 120, 123, 753 S.E.2d 380, 382-83 (2014) (internal

marks and citation omitted). “The reasonable suspicion” that serves as the basis for

the investigatory search and seizure “must arise from the officer’s knowledge prior to

the time of the stop.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

      In In re Superior Court Order, 315 N.C. 378, 381, 338 S.E.2d 307, 310 (1986),

our Supreme Court held that the State was required to make a showing of reasonable

suspicion before the production of certain bank records could be compelled. The

records in question were potential evidence of a crime but at the time they were

sought the matter was in an investigatory stage and no charges had been filed. Id.

at 379-80, 338 S.E.2d at 308-09. Rejecting the argument that, in the absence of an

authorizing statute, the trial court lacked the authority to order the production of the

records, the Supreme Court held that trial courts are invested with inherent

authority to order potential evidence to be produced during investigations, including

the bank records in question. Id. at 380, 338 S.E.2d at 309. The Supreme Court



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                     BROOK, J., concurring in part and dissenting in part



cautioned, however, that this inherent authority is still subject to constitutional

limits; that is, the State still must present “an affidavit or similar evidence setting

forth facts or circumstances sufficient to show reasonable grounds to suspect that a

crime has been committed, and that the records sought are likely to bear upon the

investigation of that crime.” Id. at 381, 338 S.E.2d at 310. “With this evidence before

it,” the Supreme Court explained, “the trial court can make an independent decision

as to whether the interests of justice require the issuance of an order rather than

relying solely upon the opinion of the prosecuting attorney.” Id.

      In the present case, the superior court’s order denying Defendant’s motion to

suppress misstated that the motion to obtain the blood collected from Defendant

during his treatment at the hospital, styled an “Application for Order for Moses Cone

Hospital Medical Records,” contained a bare allegation by the officer investigating

the death of Ms. Warren “that a fatality had occurred during a car crash.” This

allegation was made by an assistant district attorney tasked with prosecuting the

case, not an officer investigating Ms. Warren’s death. That is what the Supreme

Court held was improper in In re Superior Court Order; the superior court’s reliance

on the prosecutor’s allegation in the motion is precisely the “sole[] [reliance] upon the

opinion of the prosecuting attorney” that the Supreme Court rejected in In re Superior

Court Order. 315 N.C. at 381, 338 S.E.2d at 310. Likewise, “[r]elying solely upon the

opinion of the prosecuting attorney,” the district court was unable to “make an



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                    BROOK, J., concurring in part and dissenting in part



independent decision as to whether the interests of justice require[d] the issuance of

[the] order[.]” Id. Furthermore, as the superior court noted in the order denying the

motion to suppress, “the [motion] and order simply recite the bare allegations that

Defendant was involved in an automobile accident; that the other driver was killed;

that Defendant was treated and released at the hospital; and that ‘due to the motor

vehicle accident resulting in the death of another, and in order to complete the

investigation and to determine if [Defendant] was impaired, the Elon Police

Department is in need of all medical records from Moses Cone Hospital for

[Defendant][.]’”

      In short, at the time the State sought the order compelling the hospital to

produce Defendant’s blood, the allegation in the June 2013 motion that a fatality had

occurred during a car crash was not supported by any evidence. There is no record

affidavit or testimony by a witness with knowledge of the circumstances surrounding

the wreck or investigation of Ms. Warren’s death pre-dating the district court’s June

2013 order that could have constituted reasonable suspicion to support entry of this

order. Nor is there any indication that the district court considered any evidence

beyond that in the record before our Court when it ordered the hospital to produce

Defendant’s blood in June 2013.        The superior court acknowledged as much in

denying the motion to suppress based on the incorrect legal standard, conceding that

“[i]f measured against [the] principle [that the equivalent of reasonable suspicion is



                                             5
                                          STATE V. SCOTT

                        BROOK, J., concurring in part and dissenting in part



required], the . . . order entered in this case on June 26, 2013 would fail[.]1 The orders

allowing the State to obtain and introduce evidence that Defendant was impaired at

the time his vehicle collided with Ms. Warren’s were therefore erroneous.

                           II. Remedy for Constitutional Violation

       Having concluded that Defendant’s Fourth Amendment rights were violated

by compelling the production of his blood from the hospital without a warrant and in

the absence of any evidence establishing reasonable suspicion that he committed any

crime, I turn to whether this error, and the subsequent introduction at trial of

evidence obtained from analysis of Defendant’s blood by personnel at the State

Bureau of Investigation (“SBI”) laboratory, requires that the judgment entered upon

the jury’s verdict be vacated, necessitating a new trial. I conclude that the judgment

must be vacated, and a new trial is required.




       1  The superior court concluded that the required showing under N.C. Gen. Stat. § 90-
21.20B(a1), which the court believed provided the governing standard, was merely “of (a) the fact that
an automobile accident occurred and (b) that specified individual health information exists that is
relevant thereto,” a lower standard than reasonable suspicion. However, the unsupported allegations
of the prosecutor in June 2013 did not even meet this standard; these allegations did not constitute
evidence “of (a) the fact that an automobile accident occurred and (b) that specified individual health
information exists that is relevant thereto” because they were not verified by the prosecutor or a
witness, nor was a supporting affidavit attached to the motion as an exhibit. See, e.g., State v.
Simmons, 205 N.C. App. 509, 523-25, 698 S.E.2d 95, 105-06 (2010) (evidence establishing reasonable
suspicion may be supported by affidavit but is not limited to affidavit and may also include testimony).
There is no record testimony pre-dating the district court order compelling production of the blood
supporting the allegations in the motion either. When “the government coerces, dominates, or directs
the action of a private person, a resulting search and seizure may violate the guarantees of the Fourth
Amendment.” State v. Hauser, 115 N.C. App. 431, 436, 445 S.E.2d 73, 78 (1994) (citation omitted).
The warrantless compelled production of records under N.C. Gen. Stat. § 90-21.20B(a1) by a private
party, such as a hospital, must be supported by reasonable suspicion. See In re Superior Court Order,
315 N.C. at 381, 338 S.E.2d at 310.

                                                   6
                                     STATE V. SCOTT

                    BROOK, J., concurring in part and dissenting in part



      “Fourth Amendment rights are enforced primarily through the ‘exclusionary

rule,’ which provides that evidence derived from an unconstitutional search or seizure

is generally inadmissible in a criminal prosecution of the individual subjected to the

constitutional violation.” State v. McKinney, 361 N.C. 53, 58, 637 S.E.2d 868, 872

(2006) (citation omitted).   “The ‘fruit of the poisonous tree doctrine,’ a specific

application of the exclusionary rule, provides that ‘[w]hen evidence is obtained as the

result of illegal police conduct, not only should that evidence be suppressed, but all

evidence that is the “fruit” of that unlawful conduct should be suppressed.’” Id.

(quoting State v. Pope, 333 N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992)). Although

preserved errors not of constitutional dimension are reviewed for whether “there is a

reasonable possibility that, had the error in question not been committed, a different

result would have been reached at the trial,” State v. Wiggins, 334 N.C. 18, 27, 431

S.E.2d 755, 760 (1993) (citation omitted), “before a federal constitutional error can be

held harmless, the court must be able to declare a belief that it was harmless beyond

a reasonable doubt,” State v. Lawrence, 365 N.C. 506, 513, 723 S.E.2d 326, 331 (2012)

(internal marks and citation omitted).

      Defendant argues he “was prejudiced by the trial court’s denial of his motion

to suppress the blood evidence[;]” a review of the facts reveals that admission of

evidence obtained in violation of the Fourth Amendment was not harmless beyond a

reasonable doubt here. The State’s theory of the case was predicated upon the blood



                                             7
                                     STATE V. SCOTT

                    BROOK, J., concurring in part and dissenting in part



evidence of Defendant’s impairment establishing the malice element required to

convict Defendant of second-degree murder.            Indeed, the State dismissed the

misdemeanor death by vehicle charge and proceeded to trial on second-degree murder

by vehicle and felony death by vehicle alone once the trial court denied Defendant’s

motion to suppress. In discussing the admissibility of the blood evidence, the superior

court stressed its centrality to the State’s case: “I’m not sure what the evidence of

impairment is. You know, there will be a motion to dismiss at the end of the State’s

case. And as I understand the case, it rises or falls on the blood evidence.” As the

trial court predicted and the majority of this Court agrees, “[t]he first and only

indication of Defendant’s intoxication were results of tests on Defendant’s blood

samples taken from the Hospital and tested over a week later at the SBI laboratory.”

State v. Scott, supra at ___. And, most importantly, none of the witnesses testifying

at trial who came into contact with Defendant after his vehicle collided with Ms.

Warren’s vehicle noticed the odor of alcohol on or about his person, nor did any notice

Defendant slur his speech or exhibit other signs of impairment. As Officer Giannotti

confirmed on cross-examination, as of 21 June 2013, the day of the wreck, he had seen

no evidence that Defendant was impaired. Officer Giannotti testified further that he

never requested that Defendant submit to any alcohol testing because “there was

nothing that gave rise to a belief that [Defendant] was impaired[.]”




                                             8
                                     STATE V. SCOTT

                    BROOK, J., concurring in part and dissenting in part



      The opinion of the Court suggests that the introduction of the blood evidence

and results of testing performed on the blood did not constitute prejudicial error

because there was other evidence – namely, Defendant’s prior convictions for

impaired driving and speeding and evidence that Defendant was speeding on the day

of the collision with Ms. Warren – from which the jury could have concluded that the

showing of malice required for a conviction of second-degree murder by motor vehicle

had been met.     This suggestion seems to be based on a misapplication of the

applicable legal standard, however. The standard is whether we can “declare a belief

that [the federal constitutional error] was harmless beyond a reasonable doubt.”

Lawrence, 365 N.C. at 513, 723 S.E.2d at 331 (citation omitted). Although it is true

that evidence was introduced at trial that Defendant was speeding on the day of the

wreck and had prior speeding and impaired driving convictions, I cannot say with

any confidence that the erroneous admission of blood evidence here – evidence the

superior court observed at the outset of trial the case “rises and falls on” – did not

prejudice Defendant, much less can I so state beyond a reasonable doubt. See id.




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