NC: Search incident doesn’t apply to hit-and-run; automobile exception didn’t apply to car partly submerged in ditch

Defendant was the passenger in a car owned by her parents involved in a hit-and-run that fled the scene and ended up in a ditch. The driver ran off because he said he had warrants. She gave the driver’s name. The officers conducted a search of the car to find his identity, and methamphetamine was found in a box. That led to a further search of the passenger’s backpack. (1) The court finds search incident doesn’t apply because the driver took off. “However, the State presented no evidence at the suppression hearing that Kyle was ever arrested, let alone arrested contemporaneously with the search of the vehicle. The fact that an arrest could have been made at a later time is not enough; to justify this exception an arrest must occur.” (2) The court finds the automobile exception does not apply because the car was immobile, in a ditch, and wasn’t going anywhere without a tow truck. (3) Inventory doesn’t apply either. “For example, both Trooper Sanders and Deputy Hicks testified that their agencies had policies in place to inventory impounded vehicles, but there is no testimony that such a search was attempted or completed. In addition, even though a firearm was recovered, no testimony was elicited regarding officer safety concerns.” (4) The trial court sustained the search, as did the court of appeals, but the case is remanded to the trial court to determine whether the exclusionary rule should be applied. State v. Julius, 2023 N.C. LEXIS 786 (Oct. 20, 2023), rev’g State v. Julius, 282 N.C. App. 189, 869 S.E.2d 778 (2022). [Having found nothing close in the state’s arguments, the court should have just decided the exclusionary rule question because the remand seems superfluous for that.] The concurring/dissenting judge would just find this all in good faith and sustain the search:

The primary command of the Fourth Amendment is that law enforcement officers act reasonably. Because the officers here acted reasonably during each step of the search, defendant’s constitutional rights were not violated. Nonetheless, were I to find that the search violated defendant’s constitutional rights, I would agree with the majority’s decision to remand to the trial court to determine whether exclusion of the evidence is appropriate and, if so, whether any exceptions to the exclusionary rule apply. Notably, since 1986, we have recognized the good faith exception is applicable to violations of the Fourth Amendment. Welch, 316 N.C. at 587-89, 342 N.C. at 794-95. Thus, I respectfully concur in part and dissent in part.