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Arrest, Search, and Investigation in North Carolina

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This chapter was updated on March 18, 2024, and reflects case and statutory law through December 1, 2023.
Links to previous versions of this chapter can be found immediately above the endnotes.

Chapter 1An Introduction to Constitutional Law and North Carolina Criminal Law and Procedure

Before reading about an officer’s authority to arrest, search, and investigate crimes, it is helpful to have a basic understanding of constitutional law and North Carolina criminal law and procedure. This chapter discusses the sources of criminal law, constitutional and statutory restrictions on an officer’s enforcement authority, and criminal pretrial and trial procedure and appellate review.

Sources of Criminal Law

North Carolina criminal law comes from three main sources: (1) statutes enacted by the North Carolina General Assembly and, for prosecutions in federal courts in North Carolina, statutes enacted by the United States Congress; (2) the common law, which consists of decisions by appellate courts; and (3) ordinances enacted by county and city governments. However, these laws may be restricted by federal and state constitutional provisions.

Statutes

The North Carolina General Assembly, the state’s legislative body, enacts the state’s laws, which are called statutes.1 Statutes passed in each session of the General Assembly are printed in Session Laws of North Carolina, a book published after each legislative session. They also are available on the legislature’s website at ncleg.gov/Laws/GeneralStatutes. Those statutes that affect all or most of the state are also published in General Statutes of North Carolina. The criminal statutes prohibit offenses against society. The most serious crimes (such as murder, rape, and robbery) are called felonies, and lesser crimes are called misdemeanors (minor assaults, shoplifting, and so on). Many violations of motor vehicle laws are infractions, which are noncriminal violations of the law that are not punishable by imprisonment.2 Although infractions are not crimes, they normally are prosecuted in criminal court.

The United States Congress also enacts criminal statutes that apply throughout the country. Some crimes—for example, bank robbery3—violate both federal and state criminal laws and may be prosecuted and punished in both federal and state courts.4

Common Law

Another source of criminal law is the common law. This body of law developed in the English courts over many centuries and was transported to this country by En­glish colonists. It still survives with modifications by the respective states, including North Carolina.5 Much of the common law has been written into our statutes. Thus, a statute that makes particular conduct a crime usually lists all of the elements that must exist before that crime may be charged; but if a statute does not state the elements fully, the courts look to the common law for further definition. For example, North Carolina’s statutes on larceny set out the punishment for larceny depending on the kind of property taken, its value, or the manner in which it was taken. But they do not state the elements of that crime. One must look to the common law, as interpreted in court opinions, to know what the term larceny means.

City and County Ordinances

City councils and boards of county commissioners also may adopt criminal laws, called ordinances, that apply in their cities or counties. These ordinances normally deal only with subjects not already covered by state law. Generally, a violation of an ordinance is a Class 3 misdemeanor and the maximum punishment is 20 days’ imprisonment and a $500 fine.6 The sentencing judge may impose an active term of imprisonment only if a defendant has a prior criminal record consisting of five or more convictions.7

Constitutional Restrictions on Enactment of Criminal Laws

For the most part, governments have a free hand in deciding what conduct they want to prohibit by enacting criminal laws. However, courts sometimes decide that a particular criminal law is invalid because it violates a person’s constitutional rights. For example, a criminal law that outlaws sexually explicit publications might be invalid if it conflicts with the publisher’s constitutional right to freedom of speech under the First Amendment to the United States Constitution. A law that makes it a crime to verbally interrupt a law enforcement officer may be unconstitutionally broad because it may criminalize a substantial amount of constitutionally protected speech.8 (Constitutions are discussed in more detail in the next section.)

Constitutional and Statutory Restrictions on an Officer’s Authority

An officer’s authority to arrest, search, and investigate crimes generally comes from statutes9 and the common law.10 However, an officer’s authority is limited by federal and state constitutional provisions that give people rights that may not be violated by governments or their officers. Some federal and state statutes also impose other restrictions.

Constitutional Restrictions

A constitution is the basic charter for a government. It describes the government and the relationships of its different parts to each other. A constitution also limits the powers of the government, and it describes the basic rights of people that may not be infringed by the government and its officials, including its law enforcement officers.

United States Constitution

The United States Constitution describes the executive, legislative, and judicial branches of the federal government—the president, Congress, and the Supreme Court—how they are selected, and the powers of each. It also spells out certain fundamental rights: freedom of speech and religion, protection from unreasonable searches, due process of law, equal protection of the laws, and so forth. These federal constitutional rights are the supreme law in this country; many civil lawsuits and motions to suppress evidence in criminal cases are based on contentions that a government agency or officer violated one of these rights. (Suppression motions and exclusionary rules are discussed in Chapter 4.)

Of particular importance in this book are those restrictions on a law enforcement officer’s authority contained in several amendments to the federal constitution. Although the first ten amendments to the United States Constitution—known as the Bill of Rights—originally applied only to the federal government, court decisions after the Fourteenth Amendment was adopted have made some of these amendments applicable to state and local governments as well.11 The amendments that apply particularly to an officer’s authority are discussed below.

The First Amendment’s freedom of speech provision protects a person’s right to communicate ideas, opinions, and information. Although obscenity is not protected by the First Amendment, courts have developed special restrictive rules under the Fourth Amendment to govern law enforcement officers’ arrest and search powers so that they will be less likely to “chill” a person’s First Amendment right to produce or distribute nonobscene materials. (This subject is discussed in Chapters 2, 3, and 4.) The First Amendment also protects a person’s freedom of religion, guarantees the right to demonstrate peaceably and to petition the government for redress of grievances, and assures freedom of the press.

The Fourth Amendment protects a person’s right to privacy. It prohibits government officials, including law enforcement officers, from making unreasonable searches and seizures and prohibits the issuance of a search warrant unless it (1) is supported by information given under oath or affirmation that establishes probable cause and (2) particularly describes the place to be searched or persons or things to be seized. (The requirements of the Fourth Amendment are discussed in Chapters 2, 3, and 4.)

The Fifth Amendment protects a person from being compelled to give testimonial evidence against himself or herself. This privilege against self-incrimination is the provision under which the United States Supreme Court has required officers to give Miranda warnings and to obtain a waiver of rights before they interrogate a person who is in their custody.12 (This subject is discussed in Chapter 5.) The Fifth Amendment also contains a double jeopardy provision, which protects a person from being criminally tried or punished twice for the same offense.

The Sixth Amendment guarantees—under certain circumstances—the right to a lawyer during a trial and during some pretrial proceedings. (The right to counsel at a lineup is discussed in Chapter 5.) The Sixth Amendment also guarantees the right to a speedy and public trial by an impartial jury, the right to be informed of the charges and to be confronted with the witnesses against oneself, and the right to have compulsory process (for example, subpoenas) issued for obtaining witnesses for one’s defense.

The effect of the Fourteenth Amendment’s Due Process Clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) is not easily described. Perhaps it is best summarized by saying that people have a right to have governmental agencies and officials deal fairly with them. In the context of law enforcement actions, it means that an officer may not obtain a confession from a defendant by unfair methods—physical abuse, psychological coercion, and the like. It also means that an officer may not conduct a lineup or other identification procedure by using unnecessarily suggestive procedures. (These subjects are discussed in Chapter 5.) The Fourteenth Amendment also prohibits a government from denying a person equal protection of the laws. In the context of criminal trials, this means, for example, that it is unconstitutional to exclude an identifiable racial group from a jury.

North Carolina Constitution

The North Carolina Constitution resembles the federal constitution. It sets out the organization of North Carolina government—how the governor, other state officers, the General Assembly, and the judicial branch (the General Court of Justice) are elected and what their powers are—and it lists rights of citizens that are similar to those listed in the United States Constitution. In the context of law enforcement officers’ authority, North Carolina courts generally have not interpreted state constitutional provisions as imposing greater restrictions on officers’ authority than the federal constitution does.13 In at least one case, however, the North Carolina Supreme Court has parted company with the United States Supreme Court and has found that the North Carolina Constitution affords criminal defendants greater protections than does the United States Constitution. In that case,14 the North Carolina Supreme Court strongly indicated that there is no “good faith” exception to the exclusion of evidence for a violation of the North Carolina Constitution like the “good faith” exception to the Fourth Amendment exclusionary rule under the United States Constitution (discussed in Chapter 4).15

Statutory Restrictions

Federal and North Carolina statutes are not merely sources of a law enforcement officer’s authority to arrest, search, and investigate crimes. They also may impose restrictions on an officer’s authority that are greater than those imposed by the United States and North Carolina constitutions. For example, federal statutes prohibit a North Carolina law enforcement officer from using certain wiretapping and eavesdropping equipment unless the state legislature permits its use under specified circumstances—which the North Carolina General Assembly has done.16 Similarly, North Carolina statutes sometimes impose restrictions, such as the forty-eight-hour time limitation on the execution of a search warrant, that are not constitutionally required.17

Criminal Pretrial and Trial Procedure

Misdemeanors and Infractions

Most misdemeanors and infractions are first tried in district court before a district court judge, who determines whether the defendant is guilty of a misdemeanor or responsible for the infraction. There is no jury trial in district court.

A defendant who is found guilty of a misdemeanor in district court may appeal to superior court for a new trial—called trial de novo. (An appeal is not permitted for an infraction.) The superior court trial is de novo; that is, it is a completely new proceeding in which the evidence must be presented again as though the district court trial had never occurred. A superior court misdemeanor trial must be conducted with a twelve-person jury, although a defendant may waive the right to a jury trial.18 A jury’s verdict—whether guilty or not guilty—must be unanimous. If the jury cannot agree within a reasonable time, the judge will declare a mistrial—but the defendant may be tried again.

In a few limited situations, a misdemeanor may be tried in superior court without a district court trial being held first. The most common situation occurs when a defendant is being tried for a felony in superior court and the judge instructs the jury that it may instead find the defendant guilty of a misdemeanor that is a lesser-included offense of the felony.19 For example, if a defendant is being tried for the felony offense of assault with a deadly weapon inflicting serious injury and the evidence is not definitive that the victim’s injury was serious, the judge will instruct the jury to consider—if it does not convict the defendant of felonious assault—whether the defendant is guilty of the misdemeanor offense of assault with a deadly weapon. An infraction that is a lesser-included violation of a criminal offense also may be submitted to a jury without having been tried initially in district court.20

A misdemeanor also may be tried initially in superior court when a defendant is charged with a felony that occurred at the same time as the misdemeanor. For example, if a defendant is charged with the felony offense of involuntary manslaughter and the misdemeanor offense of impaired driving, and both charges arose out of the same automobile accident, the defendant may be tried for both charges in superior court without a district court trial of the impaired-driving charge.21 A misdemeanor also may be tried initially in superior court if (1) a grand jury issues a presentment (an accusation that does not begin criminal proceedings but requires a district attorney to investigate the matter in question and allows the district attorney to submit an indictment for the grand jury’s consideration) that charges a misdemeanor, (2) the district attorney then submits an indictment to the grand jury that charges that misdemeanor, and (3) the grand jury indicts the defendant for that offense.22

A defendant who is convicted of a misdemeanor or found responsible for an infraction in superior court has a right to appeal to the North Carolina Court of Appeals for review of the trial.23 (Appellate review is discussed later in this chapter.)

Felonies

Most felonies are processed initially through district court before they are tried in superior court or otherwise disposed of. Sometimes, however, a felony case begins with an indictment,24 which is a written accusation by a grand jury, filed in superior court, charging a person with a criminal offense. The typical felony case begins when an officer arrests a person and takes that person before a magistrate, who—if the arrest was made without a warrant—decides whether there is probable cause to charge the person and if so, sets conditions of pretrial release. The defendant either satisfies the conditions of pretrial release (by posting a secured bond, for example) or fails to do so and is jailed.

The next event usually is the first appearance in district court; if the defendant is in jail, the first appearance must be held within ninety-six hours after the defendant is taken into custody or in the next session of district court, whichever occurs first.25 A district court judge’s most important duty during the first appearance is to determine whether the defendant has a lawyer. If the defendant wants an attorney and is indigent (that is, financially unable to hire an attorney), one will be appointed to represent the defendant. In counties with a public defender’s office, a lawyer from that office normally represents the defendant. In other counties, a private lawyer who has agreed to accept court-appointed cases represents an indigent defendant. In a first-degree murder case in which the State is seeking the death penalty, the appointment of lead defense counsel and assistant defense counsel is made by the Office of Indigent Defense Services instead of by a judge.26 The judge then normally schedules a probable cause hearing (explained in the next paragraph) to be held within one to three weeks.27 A defendant may waive the right to a probable cause hearing.28 If a prosecutor obtains an indictment before the scheduled probable cause hearing, no hearing is held.29

At the probable cause hearing, the State must present enough evidence to convince the district court judge that there is probable cause to believe that the defendant committed the charged felony or a lesser-included felony or misdemeanor. If probable cause is found for only a misdemeanor, the case may then be tried in district court.30 If the judge finds that probable cause for a felony prosecution exists, then the prosecutor will submit a bill of indictment to the county’s grand jury. Even if the judge does not find probable cause, the prosecutor still may seek an indictment because a finding of no probable cause is not a determination that the defendant is not guilty.

A district court judge has the authority to accept a defendant’s guilty plea to a Class H or I felony if the prosecutor and the defendant consent to this procedure.31 The guilty plea may be entered to a felony pending in district court or a felony pending in superior court that has been remanded to district court for this purpose.

The grand jury’s role is to determine whether there is probable cause to indict the defendant. A defendant may not be tried for a felony unless he or she has been indicted—except that the defendant may waive an indictment for a noncapital offense (one that is not punishable by death) and be tried on an information, which is a written accusation by a prosecutor that charges a person with a criminal offense.32

An arraignment is a procedure to determine whether the defendant intends to plead guilty, no contest, or not guilty to the charge. (A plea of no contest is not an admission of guilt, but it authorizes the court to sentence the defendant; the plea may be entered only with the consent of the presiding judge and prosecutor.) An arraignment is required only if a defendant makes a written request for one.33 If an arraignment is held, it is often the deadline when a defendant must file pretrial motions, including motions to suppress evidence.34 These motions generally are heard before trial. If a judge grants a defendant’s suppression motion before trial, a prosecutor may appeal that ruling to an appellate court to ask that court to reverse the judge’s ruling.35 The trial is delayed while the appellate court considers the prosecutor’s appeal. If the judge denies a defendant’s pretrial motion, the defendant generally may seek appellate review only after trial and conviction.36

A felony trial is always before a twelve-person jury unless a defendant waives the right to a jury trial (a waiver is not permitted for a capital offense).37 The jury’s verdict—whether guilty or not guilty—must be unanimous. If the jury is unable to reach a unanimous decision—a situation that is sometimes called a hung jury—the judge will declare a mistrial, and the case may be tried again.

There is no trial if a defendant pleads guilty or no contest. Before accepting a guilty or no contest plea, a judge must determine whether the defendant understands the consequences—waiver of jury trial and other constitutional rights, potential punishment, and the like—of pleading guilty or no contest.

Appellate Review

A defendant in superior court who is found guilty of a crime or found responsible for an infraction has a right to appellate review of the trial. Appellate review is not another trial. The appellate court generally examines only alleged trial errors, such as whether the judge properly instructed the jury about the law applicable to the case or properly allowed or disallowed certain evidence to be heard, whether a confession was properly obtained or a search was properly conducted, or whether there was sufficient evidence to support the conviction. Almost all appeals go first to the North Carolina Court of Appeals (composed of fifteen judges), where three-judge panels review cases. Convictions in which death is imposed for a conviction of first-degree murder are appealed directly to the North Carolina Supreme Court (composed of seven justices). If a court of appeals decision is not unanimous, the losing side automatically may have its case reviewed by the supreme court. Otherwise, the supreme court may choose whether it wants to hear a case.

Decisions of the North Carolina Court of Appeals are published in the North Carolina Court of Appeals Reports and are referred to by a series of numbers and letters called a case citation.38 For example, a case citation that reads 75 N.C. App. 504 (1985) refers to a decision that was issued in 1985 and published in volume 75, beginning on page 504. Decisions of the North Carolina Supreme Court appear in the North Carolina Reports. A supreme court case citation might read, for example, 314 N.C. 59 (1985). North Carolina appellate court opinions decided since 1998 are also available at the appellate division’s website at https://appellate.nccourts.org/opinion-filings/.

Appellate review of most criminal cases ends with the state supreme court. However, sometimes a defendant seeks appellate review of federal constitutional issues before the United States Supreme Court. A request to that Court to hear a case is called a petition for a writ of certiorari, and the Court’s preliminary decision is whether to hear the case—that is, whether to grant or deny certiorari. Certiorari is granted for very few criminal cases. The Court’s decisions are published in identical versions in three different publications, with the numbers indicating volume and page number respectively. For example, a citation may read United States v. Ross, 456 U.S. 598, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). The first set of numbers, 456 U.S. 598, refers to the Court’s official reports, the United States Reports; 102 S. Ct. 2157 refers to the Supreme Court Reporter; and 72 L. Ed. 2d 572 refers to United States Supreme Court Reports, Lawyers’ Edition, Second Series.

A defendant may then challenge the conviction by filing a motion for appropriate relief in state court,39 and if unsuccessful, seek state appellate review and United States Supreme Court review of a denial of the motion. The grounds for challenging a conviction in a motion for appropriate relief are narrower than allowed on direct appeal of the conviction.

A defendant also may seek review of the conviction by filing a lawsuit (known as a petition for a writ of habeas corpus) in a federal district court in North Carolina. North Carolina has three federal districts—Western, Middle, and Eastern—each with several judges. Review is limited to federal constitutional questions, except that a defendant generally may not obtain review of Fourth Amendment search and seizure issues.40 Federal district court decisions are published in the Federal Supplement. A case citation may read 164 F. Supp. 2d 734 (W.D.N.C. 2001), which refers to a decision in the Western District (W.D.) of North Carolina (N.C.).

A decision of the federal district court may be appealed to the United States Court of Appeals, which is divided into twelve judicial circuits. North Carolina—along with South Carolina, Virginia, Maryland, and West Virginia—is included in the Fourth Circuit. Thus, an appeal from a North Carolina federal district court is to that court. Decisions of the federal circuit court of appeals are published in the Federal Reporter. For example, 233 F.2d 213 (4th Cir. 2000) refers to a Fourth Circuit decision. An appeal from one of these decisions is by a petition for a writ of certiorari to the United States Supreme Court.

Under certain circumstances, a defendant may again challenge the conviction in state court even after state appellate and federal post-conviction review have been unsuccessful, by filing a motion for appropriate relief in state court.41

Links to previous versions of this chapter:
June 15, 2022

Chapter Endnotes

Some of the material in this chapter comes from Thomas H. Thornburg, An Introduction to Law for North Carolinians (UNC Institute of Government, 2d. ed. 2000).

  1. Statutes sometimes provide that violations of rules issued by state and local government agencies, boards, commissions, etc., are criminal offenses. See, e.g., Chapter 130A, Section 25(a) of the North Carolina General Statutes (hereinafter G.S.) (violation of rules adopted by the Commission for Public Health or a local board of health is a misdemeanor).

  2. Not all infractions are motor vehicle violations. See, e.g., G.S. 113-291.8 (failing to display hunter orange a wildlife violation).

  3. Section 2113 of Title 18 of the United States Code (hereinafter, U.S.C.) (dates are omitted from U.S.C. cites); G.S. 14-87, -87.1.

  4. Bartkus v. Illinois, 359 U.S. 121 (1959); Gamble v. United States, 587 U.S. ___, 139 S. Ct. 1960 (2019); State v. Myers, 82 N.C. App. 299 (1986). Two states may also prosecute a defendant for the same criminal act. Heath v. Alabama, 474 U.S. 82 (1985). However, there are statutory limitations on the State’s authority to prosecute in such a situation. G.S. 90-97 provides that if a violation of G.S. Chapter 90, Article 5 (the North Carolina Controlled Substances Act), is a violation of a federal law or another state’s law, a conviction or acquittal in that federal or state court for the same act bars prosecution in North Carolina. State v. Brunson, 165 N.C. App. 667 (2004). G.S. 15A-134 provides that if an offense occurs partly in North Carolina and partly in another state, a person charged with that offense may be tried in North Carolina if that person has not been placed in jeopardy for the identical offense in the other state.

  5. G.S. 4-1.

  6. G.S. 14-4. The maximum fine for an ordinance violation is $50 unless the ordinance expressly states that the maximum fine is a specified amount over $50, up to $500. A violation of an ordinance regulating the operation or parking of vehicles is an infraction with a maximum penalty of $50.

  7. See G.S. 15A-1340.23.

  8. See Houston v. Hill, 482 U.S. 451 (1987); Lewis v. New Orleans, 415 U.S. 130 (1974). The ruling in Hill does not make G.S. 14-223 (resisting, delaying, or obstructing a public officer) unconstitutional on its face, but the statute’s application to a person’s mere verbal argument with an officer ordinarily will be unconstitutional. Cf. Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990); Buffkins v. City of Omaha, 922 F.2d 465 (8th Cir. 1990). North Carolina cases recognize that G.S. 14-223 is not violated by communications that are intended merely to assert rights, clarify a misunderstanding, or obtain information in a peaceable and orderly manner. See State v. Leigh, 278 N.C. 243 (1971) (evidence sufficient to support conviction of G.S. 14-223); State v. Burton, 108 N.C. App. 219 (1992) (evidence sufficient); State v. Singletary, 73 N.C. App. 612 (1985) (evidence sufficient); State v. Allen, 14 N.C. App. 485 (1972) (evidence insufficient), State v. Humphreys, 275 N.C. App. 788 (2020) (evidence insufficient).

  9. In North Carolina, most of these statutes are located in G.S. Chapter 15A.

  10. Common law authority often comes from court cases that recognize that particular law enforcement actions do not violate constitutional restrictions. See, e.g., Terry v. Ohio, 392 U.S. 1 (1968) (stop-and-frisk authority); G.S. 15A-231.

  11. The United States Supreme Court has ruled that some or parts of some of the amendments that constitute the Bill of Rights apply to the states because they are “incorporated” into the Fourteenth Amendment through its Due Process Clause. That is, certain provisions of the Bill of Rights are also part of due process under the Fourteenth Amendment. See, e.g., Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961).

  12. Miranda v. Arizona, 384 U.S. 436 (1966).

  13. See, e.g., State v. McClendon, 350 N.C. 630 (1999); State v. Kornegay, 313 N.C. 1 (1985); State v. Arrington, 311 N.C. 633 (1984); State v. Isleib, 319 N.C. 634 (1987).

  14. State v. Carter, 322 N.C. 709 (1988).

  15. Although the court appeared to have rejected a “good faith” exception in all cases, the court noted in Carter that the withdrawal of blood involved the most intrusive search and stated later in its opinion that “[w]e are not persuaded on the facts before us that we should engraft a good faith exception to the exclusionary rule under our state constitution.” Id. at 724 (emphasis added). However, the court’s opinion in State v. Garner, 331 N.C. 491 (1992), appeared to undermine the Carter ruling. In addition, an amendment to G.S. 15A-974 enacted after Carter raises an issue as to whether Carter permits the legislature to enact a statutory good-faith exception without the necessity of a state constitutional amendment. See note 1 of Chapter 4.

  16. 18 U.S.C. §§ 2510–21; G.S. 15A-286 through -298.

  17. See generally 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.7(a) (6th ed. 2020); G.S. 15A-248.

  18. G.S. 15A-1201.

  19. G.S. 7A-271(a)(1).

  20. G.S. 7A-271(d)(1).

  21. G.S. 7A-271(a)(3). See State v. Fearing, 304 N.C. 471 (1981); State v. Karbas, 28 N.C. App. 372 (1976).

  22. G.S. 7A-271(a)(2). For a definition of a presentment, see G.S. 15A-641(c) and State v. Birdsong, 325 N.C. 418 (1989).

  23. G.S. 15A-1115(b). An infraction could be adjudicated in superior court if the trial court submitted it to the jury as a lesser-included offense of a misdemeanor. G.S. 7A-271(d).

  24. G.S. 15A-641(a).

  25. G.S. 15A-601(c). A clerk of superior court may conduct a first appearance if a district court judge is not available in the county within ninety-six hours after the defendant is taken into custody. G.S. 15A-601(e).

  26. G.S. 7A-452(a).

  27. G.S. 15A-606(d) provides (with exceptions) that a probable cause hearing must be scheduled no sooner than five working days and no later than fifteen working days following an initial appearance.

  28. G.S. 15A-606.

  29. State v. Lester, 294 N.C. 220 (1978).

  30. A misdemeanor may be tried immediately with the consent of the prosecutor and the defendant. G.S. 15A-613(2). A prosecutor who still wanted to try the case as a felony could take a voluntary dismissal of the misdemeanor and seek an indictment from the grand jury—or obtain an indictment while the misdemeanor was pending in district court and then take a voluntary dismissal of the misdemeanor.

  31. G.S. 7A-272(c); 15A-1029.1.

  32. G.S. 15A-641(b) ); 15A-642(b) (indictment may not be waived in capital case).

  33. G.S. 15A-941(d).

  34. G.S. 15A-952(c). If an arraignment is to be held at the session of court for which the trial is calendared, the pretrial motions must be filed before 5:00 p.m. on the Wednesday before the session when the trial of the case begins.

  35. G.S. 15A-979(c).

  36. State v. Turner, 305 N.C. 356 (1982).

  37. G.S. 15A-1201.

  38. The North Carolina Court of Appeals Reports and the North Carolina Reports are published by the state. A commercial company also publishes North Carolina appellate cases in the South Eastern Reporter. A typical citation would appear as 553 S.E.2d 690, which refers to volume 553 of the South Eastern Reporter, Second Series, page 690.

  39. See G.S. 15A-1415. See generally Jessica Smith, Motions for Appropriate Relief, in N.C. Superior Court Judges’ Benchbook (UNC School of Government, Aug. 2017 & Feb. 2023 rev.), https://benchbook.sog.unc.edu/criminal/motions-appropriate-relief-updated-february-2023.

  40. In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court ruled that when a state court has provided a defendant with a full and fair opportunity to assert and to have considered a Fourth Amendment claim, the defendant may not be granted federal habeas corpus relief because evidence introduced at trial was allegedly obtained in violation of his or her Fourth Amendment rights. The Court reasoned that applying the exclusionary rule in a federal habeas corpus proceeding (as opposed to state trial and appellate proceedings, where the exclusionary rule still applies), which is held years after the criminal investigation was conducted, would have a minimal deterrent effect on an officer’s conduct. Also, the societal costs—reversing a defendant’s conviction because otherwise reliable evidence was obtained improperly—clearly outweigh this minimal deterrent effect.

  41. See supra note 39.

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