              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA19-608

                                 Filed: 16 June 2020

New Hanover County, No. 16 CRS 57809

STATE OF NORTH CAROLINA

             v.

DAMIAN MAURICE GORE


      Appeal by defendant from judgment entered 28 January 2019 by Judge John

E. Nobles, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals

19 February 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney General Jeremy D.
      Lindsley, for the State.

      New Hanover County Public Defender Jennifer Harjo, by Assistant Public
      Defenders Brendan O’Donnell and Emily Zvejnieks, for defendant.


      ARROWOOD, Judge.


      Damian Maurice Gore (“defendant”) appeals from judgment entered on his

Alford guilty plea to voluntary manslaughter and robbery with a dangerous weapon

following the denial of his motion to suppress certain evidence. On appeal, defendant

argues the trial court erred in denying his motion to suppress because the State

acquired his historical cell-site information without a warrant, in violation of both his

federal and state constitutional rights. For the following reasons, we affirm.

                                  I.       Background
                                    STATE V. GORE

                                  Opinion of the Court



      On 24 April 2017, defendant was indicted on charges of first-degree murder,

possession of a stolen firearm, and robbery with a dangerous weapon. Evidence

against defendant included certain cell-phone records and historical cell-site location

information (“CSLI”), which police obtained pursuant to orders issued under N.C.

Gen. Stat. §§ 15A-262 and 15-263. Defendant moved to suppress this evidence and a

hearing was held on 27 August 2018.

      At the hearing, Detective Travis Williams (“Detective Williams”) of the

Wilmington Police Department testified that on 30 December 2015 at 12:44 a.m., his

department received reports of a shooting. Detective Williams responded to the

reports and found a deceased black male lying in the front yard of an abandoned

home. The man suffered from multiple gunshot wounds and was later identified as

Rashaun McKoy (“Mr. McKoy”). Law enforcement also received information that a

white Altima was seen possibly leaving the murder scene, and proceeded to treat it

as a possible suspect vehicle.

      Deputy Johnson of the New Hanover County Sherriff’s Department spotted the

white Altima and followed it into an apartment complex. Deputy Johnson contacted

the owner of the car and was advised that Rashaun McKoy should be driving the car.

As the white Altima backed into a parking space, Deputy Johnson pulled in front of

the car, blocking it in, and activated the blue lights on her patrol vehicle. A black

male exited the car and asked Deputy Johnson why she pulled him over. When



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Deputy Johnson ordered the man to get back into the car, he took off running. Deputy

Johnson chased after the man but was unable to catch him. However, she observed

that the man appeared to be grabbing at his waistband while he was running. Later

that morning, police found a .38 caliber revolver covered in blood in the direction that

the man had fled.

      Detective Williams later searched the white Altima and found illegal drugs, a

gun, and a blood-covered cell phone which belonged to Mr. McKoy. A search of Mr.

McKoy’s phone log revealed several incoming and outgoing calls from a number

ending in 0731 and listed under the name “Dame.” All of the calls occurred within

four hours of the shooting, including three calls placed just minutes before the

incident.   Upon determining that the number belonged to defendant, Detective

Williams applied for a court order to obtain defendant’s cell phone records, including

CSLI, for the period of 28 December 2015 through 1 January 2016.

      Detective Williams completed the application pursuant to N.C. Gen. Stat. §§

15A-262 and 15-263, sworn under oath and including a supporting affidavit. A judge

issued an order granting the application, finding that “the applicant has shown

Probable Cause that the information sought is relevant and material to an ongoing

criminal investigation, involving a First Degree Murder.” The order required Sprint

to disclose the requested cell phone records, including defendant’s historical CSLI.

Based on the CSLI, law enforcement placed defendant in both the neighborhood of



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the shooting and in the area where Deputy Johnson had confronted the driver of the

white Altima at the relevant times.

      In support of his motion to suppress, defendant argued that Detective Williams

violated both his federal and state constitutional rights in searching his cell phone

records, including his CSLI, without first obtaining a warrant supported by probable

cause. Finding that the court order was equivalent to a warrant and supported by

probable cause, the trial court denied defendant’s motion. Defendant entered a

conditional Alford guilty plea to voluntary manslaughter and robbery with a

dangerous weapon, but appealed the order denying his motion to suppress.

                                  II.    Discussion

      On appeal, defendant contends the trial court erred in denying his motion to

suppress because the State’s acquisition of his CSLI without a warrant or probable

cause violated his federal and state constitutional rights to be free from unreasonable

search and seizure. He further contends that, in light of this violation, his CSLI and

the evidence derived from it should be suppressed. We disagree.

      This Court reviews a denial of a motion to suppress for “whether the trial

court’s findings of fact are supported by the evidence and whether the findings of fact

support the conclusions of law.” State v. Cockerham, 155 N.C. App. 729, 736, 574

S.E.2d 694, 699 (2003). The trial court’s conclusions of law are reviewed de novo.

State v. Johnson, 204 N.C. App. 259, 262, 693 S.E.2d 711, 714 (2010).



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                               A.    Federal Constitution

      We first address defendant’s claim with respect to his rights under the federal

constitution. The Fourth Amendment of the United States Constitution protects

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures” by the government without a warrant

supported by probable cause. U.S. CONST. amend. IV. In Carpenter v. United States,

__ U.S. __, 201 L. Ed. 2d 507 (2018) the United States Supreme Court considered

whether the government’s warrantless acquisition of a defendant’s historical CSLI

was an unreasonable search prohibited by the Fourth Amendment. Concluding that

“an individual maintains a legitimate expectation of privacy in the record of his

physical movements as captured through CSLI,” the Court held that the

government’s acquisition of a defendant’s CSLI constitutes a search within the

meaning of the Fourth Amendment. Id. at __, 201 L. Ed. 2d at 521. Accordingly, if

the government wishes to access such information, it must first obtain a warrant. Id.

at __, 201 L. Ed. 2d at 525.

      In addition, the Carpenter court further held that the Stored Communications

Act, which allowed law enforcement to obtain CSLI so long as they had “ ‘reasonable

grounds’ for believing that the records were ‘relevant and material to an ongoing

investigation,’ ” did not satisfy the warrant requirement because it required

something less than probable cause. Id. at __, 201 L. Ed. 2d at 525-26. Thus, the



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Court held that government acquisition of CSLI based on an order issued pursuant

to the Stored Communications Act or its equivalent, rather than pursuant to a

warrant based on probable cause, would violate a defendant’s Fourth Amendment

rights. Id. at __, 201 L. Ed. 2d at 526.

      On remand, the Sixth Circuit held that though the government should have

obtained a warrant before searching the defendant’s CSLI, the trial court did not err

in denying the defendant’s motion to suppress his CSLI because the federal “good

faith exception” to the exclusionary rule applied. United States v. Carpenter, 926 F.3d

313, 317-18 (2019). Though evidence obtained in violation of the Fourth Amendment

is generally excluded, under the good faith exception, “when the police act with an

objectively ‘reasonable good-faith belief’ that their conduct is lawful,’ ” the evidence

obtained from an otherwise unlawful search will not be excluded. Davis v. United

States, 564 U.S. 229, 238, 180 L. Ed. 2d 285, 295 (2011) (citations omitted). Thus, the

Sixth Circuit held that though the warrantless search of the defendant’s CSLI

violated his Fourth Amendment rights, “it was not unreasonable for the FBI agents

who acquired Carpenter’s CSLI to rely on [the Stored Communications Act]” because

it was valid at the time. Carpenter, 926 F.3d at 317-18.

      Here, as discussed in more detail below, the search of defendant’s CSLI was

pursuant to a court order supported by probable cause. However, we note that even

assuming law enforcement did conduct a warrantless search in violation of



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defendant’s Fourth Amendment rights, the federal good faith exception to the

exclusionary rule would apply.1 Detective Williams applied for the court order to

obtain defendant’s cell phone records in 2016, two years prior to the United States

Supreme Court’s decision in Carpenter. In light of the prevailing law at the time, it

was reasonable for Detective Williams and the judge who approved the application to

access defendant’s CSLI to believe that a warrantless search of five days of a suspect’s

CSLI was lawful. Accordingly, we hold that the trial court did not err in denying

defendant’s motion based on any Fourth Amendment grounds.

                                    B.      State Constitution

       Defendant next contends his rights under the North Carolina Constitution

were violated as well, and that it was error for the trial court to deny his motion to

suppress on that basis. Our Supreme Court has recognized that Article I, Section 20

of the North Carolina Constitution (the “General Warrants clause”), like the Fourth

Amendment, “prohibits unreasonable searches and seizures.” State v. Arrington, 311

N.C. 633, 643, 319 S.E.2d 254, 260 (1984). Nevertheless, “we have the authority to




       1 Defendant argues that the trial court did not base its decision to deny defendant’s motion to
suppress on the good faith exception, and that the State did not preserve the good faith exception for
our consideration on appeal by raising it in the trial court below. However, Rule 28(c) provides that
“an appellee may present issues on appeal based on any action or omission of the trial court that
deprived the appellee of an alternative basis in law for supporting the judgment, order, or other
determination from which appeal has been taken.” N.C.R. App. P. 28(c) (2020). In addition, “[o]ur
precedents clearly allow the party seeking to uphold the trial court’s presumed-to-be-correct and
‘ultimate ruling’ to, in fact, choose and run any horse to race on appeal to sustain the legally correct
conclusion of the order appealed from.” State v. Hester, 254 N.C. App. 506, 516, 803 S.E.2d 8, 16 (2017)
(emphasis in original) (citations omitted).

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construe our own constitution differently from the construction by the United States

Supreme Court of the Federal Constitution, as long as our citizens are thereby

accorded no lesser rights than they are guaranteed by the parallel federal provision.”

Carter, 322 N.C. at 713, 370 S.E.2d at 555 (citations omitted). As our Supreme Court

has explained,

             because the United States Constitution is binding on the
             states, the rights it guarantees must be applied to every
             citizen by the courts of North Carolina, so no citizen will be
             “accorded lesser rights” no matter how we construe the
             state Constitution. For all practical purposes, therefore,
             the only significant issue for this Court when interpreting
             a provision of our state Constitution paralleling a provision
             of the United States Constitution will always be whether
             the state Constitution guarantees additional rights to the
             citizen above and beyond those guaranteed by the parallel
             federal provision. In this respect, the United States
             Constitution provides a constitutional floor of fundamental
             rights guaranteed all citizens of the United States, while
             the state constitutions frequently give citizens of
             individual states basic rights in addition to those
             guaranteed by the United States Constitution.

State v. Jackson, 348 N.C. 644, 648, 503 S.E.2d 101, 103 (1998) (emphasis in original).

Thus, all defendants must be afforded at least those rights granted under the

Constitution of the United States.

      In Carpenter, the U.S. Supreme Court held that law enforcement’s acquisition

of a defendant’s historical CSLI from a wireless carrier without a warrant constitutes

an unreasonable search under the Fourth Amendment. __ U.S. at __, 201 L. Ed. 2d

at 525-26. Because warrantless searches of historical CSLI have been deemed a


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                                  Opinion of the Court



violation of citizens’ Fourth Amendment rights under the federal Constitution, and

state constitutions must be interpreted to provide at least those rights guaranteed

under the federal Constitution, it follows that this Court is required to hold that a

warrantless search of historical CSLI constitutes an unreasonable search in violation

of a defendant’s rights under the North Carolina Constitution as well. See Jackson,

348 N.C. at 648, 503 S.E.2d at 103.

      Our state constitution has not been interpreted to provide “any enlargement

or expansion of rights beyond those afforded in the Fourth Amendment[.]” State v.

Gardner, 331 N.C. 491, 506, 417 S.E.2d 502, 510 (1992). Thus, this Court need not

inquire whether defendant enjoys greater protection under our State’s constitutional

guarantee against unreasonable searches and seizures. However, we must accord

defendant the constitutional rights he is entitled to under the Fourth Amendment.

Accordingly, in keeping with Carpenter, we hold that a warrantless search of

historical CSLI constitutes an unreasonable search in violation of a defendant’s rights

under the North Carolina Constitution.

               C.     Application for CSLI met Warrant Requirement

      Although this Court is, as a general matter, bound by Carpenter, we hold the

trial court did not err in denying defendant’s motion to suppress because the

application to obtain defendant’s CSLI contains all the information necessary from

which the trial court could have issued a warrant supported by probable cause, and



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in fact, the trial court in its order specifically found that probable cause existed to

obtain this information.

      In Carpenter, the Supreme Court held that the acquisition of a defendant’s

CSLI constituted a search requiring a warrant, and that an application to access a

defendant’s CSLI data under the Stored Communications Act (“SCA”) did not satisfy

the warrant requirement. __ U.S. at __, 201 L. Ed. 2d at 525-26. As the Carpenter

Court explained, a court order issued under the SCA did not meet the probable cause

standard required for warrants because it only required that the government “show

‘reasonable grounds’ for believing that the records were ‘relevant and material to an

ongoing investigation.’ ” Id. at __, 201 L. Ed. 2d at 525 (citing 18 U.S.C. § 2703(d)).

Accordingly, law enforcement’s acquisition of a defendant’s CSLI without a warrant

or its equivalent would violate the defendant’s Fourth Amendment rights. See id. at

__, 201 L. Ed. 2d at 525.

      A search warrant is a court order which directs law enforcement to “search

designated premises, vehicles, or persons for the purpose of seizing designated

items . . . .” N.C. Gen. Stat. § 15A-241 (2019). An item may be seized pursuant to a

search warrant “if there is probable cause to believe that it . . . [h]as been used or is

possessed for the purpose of being used to commit or conceal the commission of a

crime; or [c]onstitutes evidence of an offense or the identity of a person participating

in an offense.” N.C. Gen. Stat. § 15A-242(3)-(4) (2019). “Probable cause requires not



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certainty, but only a ‘probability or substantial chance of criminal activity.’ ” State v.

McKinney, 368 N.C. 161, 165, 775 S.E.2d 821, 825 (2015) (emphasis in original)

(quoting State v. Riggs, 328 N.C. 213, 219, 400 S.E.2d 429, 433 (1991). Thus, “an

affidavit is sufficient to establish probable cause ‘if it supplies reasonable cause to

believe that the proposed search for evidence probably will reveal the presence upon

the described premises of the items sought and that those items will aid in the

apprehension or conviction of the offender.’ ” State v. Frederick, 259 N.C. App. 165,

170, 814 S.E.2d 855, 859 (2018) (emphasis in original) (quoting Arrington, 311 N.C.

at 636, 319 S.E.2d at 256).

      In North Carolina, an application for a search warrant must adhere to the

following requirements:

                    Each application for a search warrant must be made
             in writing upon oath or affirmation. All applications must
             contain:

                    (1) The name and title of the applicant; and

                    (2) A statement that there is probable cause to
                        believe that items subject to seizure under G.S.
                        15A-242 may be found in or upon a designated or
                        described place, vehicle, or person; and

                    (3) Allegations of fact supporting the statement. The
                        statements must be supported by one or more
                        affidavits particularly setting forth the facts and
                        circumstances establishing probable cause to
                        believe that the items are in the places or in the
                        possession of the individuals to be searched; and



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                   (4) A request that the court issue a search warrant
                       directing a search for and the seizure of the items
                       in question.

N.C. Gen. Stat. § 15A-244 (2019). In contrast, an application for an order for a pen

register or trap and trace device, which law enforcement here used to apply for access

to defendant’s CSLI, requires: “(1) The identity of the law enforcement officer making

the application and the identity of the law enforcement agency conducting the

investigation; and (2) A certification by the applicant that the information likely to

be obtained is relevant to an ongoing criminal investigation being conducted by that

agency.” N.C. Gen. Stat. § 15A-262 (2019).

      Here, the record reflects that the application for the release of defendant’s

CSLI was written under oath sworn before a judge. It also included many of the other

elements required for a warrant, such as: (1) the name and title of the applicant,

Detective Travis Williams; (2) statements that Detective Williams was seeking

certain of defendant’s cell phone records that he believed would be found in Sprint’s

Call Detail Records and were relevant and material to an ongoing criminal

investigation; (3) allegations of fact supporting those statements, including a

description of the circumstances leading him to believe defendant’s cell phone records

for the telephone number subscribed with Sprint would reveal evidence of a crime;

and (4) a request that the trial court grant an order directing Sprint to furnish the

requested records. The requirements for an application for a warrant and for an



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                                    Opinion of the Court



application under N.C. Gen. Stat. § 15A-262 are thus similar in many respects, save

for the probable cause requirement.

      Notably, following an application under N.C. Gen. Stat. § 15A-262, a superior

court judge may issue an order authorizing the requested action if the judge finds:

             (1) That there is reasonable suspicion to believe that a
                 felony offense, or a Class A1 or Class 1 misdemeanor
                 offense has been committed;

             (2) That there are reasonable grounds to suspect that the
                 person named or described in the affidavit committed
                 the offense, if that person is known and can be named
                 or described; and

             (3) That the results of procedures involving pen registers
                 or trap and trace devices will be of material aid in
                 determining whether the person named in the affidavit
                 committed the offense.

N.C. Gen. Stat. § 15A-263 (2019).

      Regarding warrants, a judicial official may issue a search warrant upon a

finding of probable cause to believe that the requested search will lead to the

discovery of the item(s) specified in the application. N.C. Gen. Stat. § 15A-245(b)

(2019). The search warrant itself must contain the following information:

             (1) The name and signature of the issuing official with the
                 time and date of issuance above his signature; and

             (2) The name of a specific officer or the classification of
                 officers to whom the warrant is addressed; and




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                                    Opinion of the Court



             (3) The names of the applicant and of all persons whose
                 affidavits or testimony were given in support of the
                 application; and

             (4) A designation sufficient to establish with reasonable
                 certainty the premises, vehicles, or persons to be
                 searched; and

             (5) A description or a designation of the items constituting
                 the object of the search and authorized to be seized.

N.C. Gen. Stat. § 15A-246 (2019).

      In the present case, the court order granting the search of defendant’s cell

phone records contained all of the information required in a search warrant. In

addition, the trial court went beyond the “reasonable suspicion” and “reasonable

grounds,” required under N.C. Gen. Stat. § 15A-263, and instead found that “the

applicant has shown Probable Cause that the information sought is relevant and

material to an ongoing criminal investigation, involving a First Degree Murder.”

(emphasis added). While an application under N.C. Gen. Stat. § 15A-262 need not

show it meets the more stringent probable cause standard, the trial court

nevertheless evidently believed that it did.         The information contained in the

application shows the trial court had a substantial basis for reaching that conclusion.

See Frederick, 259 N.C. App. at 169, 814 S.E.2d at 858 (“[A] reviewing court is

responsible for ensuring that the issuing magistrate had a substantial basis for

concluding that probable cause existed.”)




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                                 Opinion of the Court



      In his application for a court order requiring Sprint to release defendant’s

historical CSLI, Detective Williams alleged that the victim, Rashaun McKoy, was

murdered and had sustained multiple gunshot wounds to his body. His vehicle was

taken from the scene by the individual suspected of murdering him. When the vehicle

was spotted a short time later, the black male who was driving exited the vehicle and

fled the scene, leaving behind a blood-soaked gun and cell phone.          Deputies

investigating the murder later searched the cell phone’s call history and discovered

several outgoing and incoming calls from a number ending in 0731 that were placed

only minutes prior to the shooting. The deputies determined that this number was

registered with Sprint and belonged to defendant, and believed that obtaining

defendant’s CSLI would assist with the investigation. Thus, the application supplied

information supporting a discovery of the “probability or substantial chance of

criminal activity,” McKinney, 368 N.C. at 165, 775 S.E.2d at 825 (emphasis in

original) (quoting Riggs, 328 N.C. at 219, 400 S.E.2d at 433), “or the identity of a

person participating in an offense,” N.C. Gen. Stat. § 15A-242(4), that is required

under the probable cause standard.

      Furthermore, the trial court stated in its order denying defendant’s motion to

suppress that:

                    The paper writing designated as Order, State’s
             Exhibit P-9, is indeed a warrant based on probable
             cause. . . . The Court makes this determination based on
             the four corners of the search warrant, so that based on


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                                  Opinion of the Court



             those four corners of the search warrant that there was
             probable cause that a fair probability that evidence of a
             crime would be found by the issuance of such warrant.

                    The Court concludes as a matter of law concerning
             Exhibit Number 9 that there was probable cause for a
             search warrant to be issued, that there were no violations
             constitutionally of the US Constitution or the North
             Carolina Constitution or the statutes of law, and the Court
             denies the defendant’s motion in that matter.

      Though, as defendant argues, the application for defendant’s cell phone records

did not specifically assert that probable cause existed—likely because N.C. Gen. Stat.

§ 15A-262 does not require such an assertion—the substance of the application

nevertheless supports that conclusion. We therefore agree with the trial court’s

findings and conclusions on this issue.

      While the Supreme Court in Carpenter determined the “relevant and material”

standard required under the SCA and other such statutes falls short of the probable

cause standard required for a warrant, the present case is distinguishable because

the trial court here explicitly found there was probable cause. This is a significant

distinction which compels a different outcome than that of Carpenter. Accordingly,

because the trial court determined there was probable cause to search defendant’s

historical CSLI, the requirements for a warrant were met and defendant’s

constitutional rights were not violated.        Because we hold that the warrant

requirement was met, we do not consider whether there exists any good faith




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exception to the exclusionary rule in North Carolina, such as that which exists in the

federal courts.

                                  III.   Conclusion

      For the foregoing reasons, we affirm the trial court’s order denying defendant’s

motion to suppress.

      AFFIRMED.

      Judge BERGER concurs.

      Judge DILLON concurs in part, concurs in result in part by separate opinion.




                                          17
 No. COA19-608 – State v. Gore


      DILLON, Judge, concurring in part, concurring in result in part.


      Defendant argues that his Cell Site Location Information (“CSLI”) data should

have been suppressed because the retrieval of this data by investigating officers

violated his rights both under the federal constitution and our state constitution.

      As explained more fully below, I agree with the majority’s mandate affirming

the trial court’s order denying Defendant’s motion to suppress his CSLI data but not

entirely with the majority’s reasoning. Specifically, I disagree with the majority’s

conclusion that the application and court order allowing retrieval of Defendant’s CSLI

data complied with the requirements of a valid warrant. I agree, though, with the

majority’s alternate conclusion with respect to Defendant’s federal constitutional

argument that, assuming the warrant requirements were not met, the good faith

exception to the exclusionary rule applies. The majority rejects Defendant’s state

constitutional argument solely based on its conclusion that the warrant requirements

were met. I conclude, however, that the good faith exception applies to Defendant’s

state constitutional argument as well.

                               I. Federal Constitution

      I agree with the majority’s alternate basis for rejecting Defendant’s federal

constitutional argument, that the good faith exception to the exclusionary rule

applies. That is, though Defendant’s federal constitutional rights under the Fourth

Amendment were violated based on Carpenter, he was not entitled under to an order
                                       STATE V. GORE

                  DILLON, J., concurring in part, concurring in result in part



suppressing his evidence. Carpenter v. United States, 138 S. Ct. 2206, 201 L.Ed.2d

507 (2018)

                                   II. State Constitution

                             A. The Warrant Was Defective.

       In this case, the investigating officer did not seek a warrant in the classic sense,

but rather applied for an order under Section 15A-262. See N.C. Gen. Stat. § 15A-

262 (2017). At the time the officer sought Defendant’s CSLI data from the phone

company, it was thought that the retrieval of this data from a third party did not

constitute a search under the Fourth Amendment. The United States Supreme Court

later handed down its Carpenter decision declaring that the retrieval of CSLI data

from a phone company may constitute a search. See Carpenter v. United States, 138

S. Ct. 2206, 201 L.Ed.2d 507 (2018). The requirements to obtain a court’s approval

under Section 15A-262 are less stringent than the requirements to obtain a warrant.

A warrant requires probable cause, whereas an order under Section 15A-262 does

not.

       In this case, however, the majority concludes that the order issued allowing

law enforcement to retrieve Defendant’s CSLI data, though entered pursuant to

Section 15A-262 prior to Carpenter, still met the requirement for a warrant, as the

court expressly concluded that “probable cause” existed. I disagree with the majority

that the requirements for a warrant were met, for two independent reasons.



                                             -2-
                                       STATE V. GORE

                  DILLON, J., concurring in part, concurring in result in part



                     1. Affidavit did not establish probable cause.

      First, I do not agree that the investigating officer’s supporting affidavit in any

way provided probable cause to justify the issuance of a warrant. In determining

whether probable cause exists, North Carolina has adopted the “totality of the

circumstances” test. State v. Arrington, 311 N.C. 633, 642-43, 319 S.E.2d 254, 260

(1984). The only “circumstance” listed in the affidavit providing a nexus between

Defendant and the victim’s death was that Defendant engaged in several cell phone

calls with the victim near the time of the victim’s death, the most recent occurring

about 3 minutes before the victim was killed. There is nothing else. The affidavit

merely states that the victim was killed; a deputy spotted the victim’s car being

driven shortly after the victim’s death; a “black male driver” stopped the victim’s car,

got out, and fled; the victim’s cell phone, covered in blood, was still in the car; and,

regarding Defendant:

             [s]everal outgoing calls were placed to [Defendant’s cell
             phone number][.] There were also several incoming calls
             from that number. Most of these calls were placed just
             prior to the shooting . . . [including] [t]hree [which
             occurred] approximately 3 or 4 minutes before [the victim
             was shot]. . . . [Defendant] is a person of interest in this
             case and [his cell phone] records are relevant and material
             information [to this investigation].

There is nothing else regarding Defendant:               there is no allegation regarding

Defendant’s physical characteristics or that he resembled the person seen fleeing

from the victim’s car or was seen near the location of the killing; there is no allegation


                                             -3-
                                       STATE V. GORE

                  DILLON, J., concurring in part, concurring in result in part



regarding the nature of Defendant’s relationship with the victim, much less any

allegation that their relationship was contentious or that Defendant had some motive

to kill the victim; there is no allegation that Defendant was otherwise engaged in any

kind of criminal activity.

      Simply put, I conclude that the mere fact that a person happens to be talking

to someone on the cellphone shortly before that someone is killed, without anything

more, does not constitute probable cause that the person killed the victim. My

conclusion is consistent with the only cases I have found on point, though they are

out of state cases. See, e.g., Commonwealth v. Fulgiam, 477 Mass. 20, 34, 73 N.E.3d

798, 813 (2017) (“Although the fact that [the victim and the defendant] may have

used their cellular telephones to communicate with each other on the day of the

murders elevated their relationship to a matter of importance in the investigation, it

did not, without more, justify intrusion [to search Defendant’s cellphone]”);

Commonwealth v. Snow, 96 Mass. App. Ct. 672, 677, 138 N.E.3d 418, 423 (2019)

(“Multiple cell phone calls and text messages between a defendant and a murder

victim on the day of the killing, without more, also are not sufficient to establish

probable cause to search the defendant’s cell phone.”); State v. Marble, 218 A.3d 1157,

1161 (Me. 2019) (upholding finding of probable cause for CSLI search where affidavit

included allegation that the defendant communicated with the victim on day of the




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                                          STATE V. GORE

                     DILLON, J., concurring in part, concurring in result in part



killing and included several other facts establishing a nexus with the defendant and

the killing).

     2. The court did not make the appropriate “probable cause” determination.

       Alternatively, I do not believe that the trial court made the required “probable

cause” finding. Specifically, the trial court found that the applicant had probable

cause “that the information sought is relevant and material to an ongoing criminal

investigation, involving a First Degree Murder” (emphasis added).                   However, to

obtain a warrant, there must be a finding that there is probable cause that “evidence

of a crime will be found in a particular place.” Arrington, 311 N.C. at 638, 319 S.E.2d

at 258 (emphasis added). I believe that the universe of what constitutes information

“relevant and material to an ongoing investigation” is a bigger universe than

“evidence of a crime.” See Carpenter, 138 S. Ct. at 2221, 201 L.Ed.2d at 526 (stating

that showing that evidence “might be pertinent to an ongoing investigation [is a]

‘gigantic’ departure from the probable cause rule”).

                B. Defendant’s Motion Was Otherwise Properly Suppressed.

       Notwithstanding my disagreement with the majority regarding the sufficiency

of the warrant in this case, I conclude that Defendant’s CSLI data was properly

admitted, for two independent reasons.

                1. We have a good faith exception under North Carolina law.




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                  DILLON, J., concurring in part, concurring in result in part



      First, I conclude that the exclusionary rule does not apply because the detective

acted in good faith in relying on our State law, pre-Carpenter. I note Defendant’s

argument that the good faith exception is not recognized under the North Carolina

Constitution. However, I conclude that our North Carolina Constitution does not

forbid the General Assembly from passing a law, as that body has done, to allow for

a good faith exception to the judicially adopted rule that evidence collected in

violation of the constitution generally must be excluded.

      The seminal case on the good faith exception in North Carolina, upon which

Defendant relies, is State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988). A superficial

reading of that opinion may lead one to believe that our Supreme Court was holding

that our state constitution prohibits a good faith exception from being enacted by our

General Assembly; that is, that our state constitution forbids the good faith exception

to the exclusionary rule. Indeed, our General Assembly seems to have made this

mistake when amending N.C. Gen. Stat. § 15A-974 in 2011 to provide for a good faith

exception to the exclusionary rule. Specifically, the Editor’s Notes to the statute’s

amendment states that “[t]he General Assembly respectfully requests that the North

Carolina Supreme Court reconsider, and overrule, its holding in State v. Carter that

the good faith exception to the exclusionary rule which exists under federal law does

not apply under North Carolina law.” N.C. Gen. Stat. § 15A-974 (ed. note).




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                     DILLON, J., concurring in part, concurring in result in part



       But a closer reading of Carter reveals that our Supreme Court did not hold that

the absence of a good faith exception under state law at that time (in 1988) was a

constitutional matter which could only be changed by constitutional amendment.

Rather, the Court held that the recognition or non-recognition of a good faith

exception is a matter of public policy within the purview of our General Assembly’s

lawmaking authority.2 And, at that time, the General Assembly had provided that

there was no good faith exception; and the Supreme Court merely held that the

General Assembly’s law was not unconstitutional, that our North Carolina

Constitution required the recognition of a good faith exception.

       In Carter, officers obtained blood evidence from a search without first obtaining

a warrant. Our Supreme Court noted that the search violated the defendant’s rights

under both our state and federal constitutions. Carter, 322 N.C. at 714, 370 S.E.2d

at 556.    The Court reviewed the history of the exclusionary rule in our State,

recognizing that it was originally a creation of the General Assembly decades before

the rule was mandated by the United States Supreme Court in its 1961 case Mapp v.

Ohio, 367 U.S. 643, 6 L.Ed.2d 1081 (1961). See id. at 718, 370 S.E.2d at 559 (“North

Carolina was among a handful of states that adopted an exclusionary rule by statute

rather than by judicial creation.”).


       2   We note that the exclusionary rule itself (and by extension the good faith exception to that
rule) is not a rule mandated by the Fourth Amendment but rather is a judicially established “rule [to]
effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.”
Illinois v. Krull, 480 U.S. 340, 347, 94 L.Ed.2d 364, 373 (1987).

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                  DILLON, J., concurring in part, concurring in result in part



      In the face of a state statute which, at the time, required that all illegally-

obtained evidence be suppressed, the State “urge[d] the Court to adopt a ‘good faith’

exception to our long-standing exclusionary rule,” similar to that which had been

adopted by the United States Supreme Court in Fourth Amendment cases, id. at 714,

370 S.E.2d at 556, to “create a good faith exception to the exclusionary rule under our

state constitution, id. at 722, 370 S.E.2d at 561.

      Logically, the State’s argument was not that our state constitution should

simply allow for a good faith exception. Such a ruling would not prohibit the General

Assembly from enacting a statute providing for greater protections to criminal

defendants, for instance by enacting a statute that required all illegally obtained

evidence be excluded, even if gathered in good faith.

      Rather, logically, the State was essentially asking our Supreme Court to

declare the portion of the state statute to be unconstitutional, based on an

interpretation that our state constitution requires that evidence collected in good

faith be allowed into evidence, notwithstanding a statute to the contrary.

      Our Supreme Court rejected the State’s argument, refusing to “engraft a good

faith exception” into our state constitution. But, in so holding, the Court did not

engraft a constitutional prohibition against the enactment of a law by our General

Assembly to provide for a good faith exception. Indeed, the Court recognized in its

conclusion that its holding was based on long-standing public policy based on



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                                        STATE V. GORE

                   DILLON, J., concurring in part, concurring in result in part



enactments by our General Assembly and expressly stated that our General Assembly

had the authority to change the policy by changing the law:

               This policy has existed since 1937. If a good faith exception
               is to be applied to this public policy, let it be done by the
               legislature, the body politic responsible for the formation
               and expression of matters of public policy.

Id. at 724, 370 S.E.2d at 562 (emphasis added). Had our Supreme Court thought that

the issue of a public policy exception was constitutional in nature, the Court would

not have made such a statement, but rather would have directed the State to seek a

constitutional amendment.

      I understand that there has been a lot of commentary regarding the belief that

North Carolina does not recognize the good faith exception, based on our Supreme

Court’s enunciation in Carter. However, the only fair reading of Carter is that our

state constitution neither prohibits nor provides for a good faith exception, but rather

the matter is one of public policy to be decided by the people’s representatives serving

in our General Assembly. See State v. Foster, ___ N.C. App. ___, ___, 823 S.E.2d 169,

___, n.2 (2019) (Table) (recognizing that the language in Carter has been superseded

by statute).

 2. We are bound by precedent that the retrieval was not a search under state law.

      Alternatively, as my second basis, assuming that the good faith exception does

not apply to searches under our state constitution, I conclude that we are bound to




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                                      STATE V. GORE

                 DILLON, J., concurring in part, concurring in result in part



hold that the retrieval of Defendant’s CSLI data did not constitute a search under our

state constitution, notwithstanding that it might be under the federal constitution.

      The United States Supreme Court held in Carpenter that obtaining a suspect’s

CSLI records from the phone company constitutes an unreasonable search under the

Fourth Amendment. But our Supreme Court has instructed that our state appellate

courts are “not bound by opinions of the Supreme Court of the United States

construing even identical provisions in the Constitution of the United States.”

Arrington, 311 N.C. at 642, 319 S.E.2d at 260. And “the language of Article 1, Section

20 of the Constitution of North Carolina [actually] differs markedly from the

language of the Fourth Amendment to the Constitution of the United States.” Id. at

642, 319 S.E.2d at 260.

      Notwithstanding the differing language between the state and federal

constitutions, our Supreme Court has held that our state constitutional provision,

like the Fourth Amendment, “prohibits unreasonable searches and seizures.” Id. at

642, 319 S.E.2d at 260. I recognize that if the federal constitution provides greater

protection, then we must apply the federal constitution. Here, though, the federal

constitution does not provide relief to Defendant because of the federal good faith

exception. Defendant, however, claims that the state constitution provides greater

protection in that our state constitution prohibits the application of a good faith

exception. I note that our Supreme Court has recognized that our state constitution



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                     DILLON, J., concurring in part, concurring in result in part



does not provide “any enlargement or expansion of rights beyond those afforded in

the Fourth Amendment[.]” State v. Gardner, 331 N.C. 491, 506, 417 S.E.2d 502, 510

(1992). But assuming that our state constitution prohibits the application of a good

faith exception, then Defendant may be entitled to greater relief than provided under

the federal constitution if the retrieval of his data constitutes a “search” within the

meaning of the state constitution.

        With all this said, our appellate courts are not bound to conclude that a

particular type of action constitutes a search within the meaning of our state

constitution simply because the United States Supreme Court holds that similar

conduct by law enforcement constitutes a search under the Fourth Amendment. I am

persuaded by the reasoning in Carpenter that the conduct in this case did constitute

a search under our state constitution; however, our panel is bound by precedent

established by another panel from our Court. See In re Civil Penalty, 324 N.C. 373,

384, 379 S.E.2d 30, 37 (1989). And three years prior to Carpenter, a panel of our

Court held that obtaining a suspect’s CSLI data does not constitute a search under

our state constitution. See State v. Perry, 243 N.C. App. 156, 776 S.E.2d 528 (2015).3




        3I note that there is a more recent case from our Court on this topic, State v. Thomas, ___ N.C.
___, 834 S.E.2d 654 (2019). However, the panel in that case found that the doctrine of attenuation
applied and thus, the trial court did not err in denying Defendant’s motion to suppress the phone
records obtained by the State. Here, the attenuation doctrine is inapplicable due to the absence of an
intervening circumstance, which is necessary for the doctrine to apply.

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                                      STATE V. GORE

                 DILLON, J., concurring in part, concurring in result in part



      In Perry, the panel then made the logical leap that since retrieval of CSLI did

not violate the Fourth Amendment, then the conduct did not violate the state

constitution. It could therefore be argued that since the United States Supreme Court

subsequently “moved the goal posts” from where they were established by the federal

cases relied upon by our Court in Perry, the state constitutional goal posts have also

been moved. Perhaps our state constitutional goal posts should be moved from where

the Perry panel planted them. However, we remain bound by the Perry holding, as

we should remain bound by a decision from our Supreme Court regarding a state

constitutional issue, notwithstanding a decision by the United States Supreme Court,

until controlling precedent concerning our state constitution is overruled by our

Supreme Court. Of course, we should apply federal constitutional protections where

those protections are greater than the protections afforded by our state constitution.




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