Carolina Criminal Defense & DUI Lawyer UpdatesIn the recent appellate decision of North Carolina v. Escalante (also cited as State v. Escalante), No. COA25-64, filed December 17, 2025, the North Carolina Court of 
Appeals examined whether the defendant had the legal right, known as standing, to challenge the legality of electronic surveillance used in his arrest. The appellate court affirmed the trial court’s ruling that the defendant lacked standing to seek suppression because he could not demonstrate a personal privacy interest in the phone that was tracked.
At the Powers Law Firm, we enjoy helping clients navigate complex legal issues. Bill Powers, a seasoned trial attorney with more than three decades of courtroom experience, is a former President of the North Carolina Advocates for Justice and a recipient of the North Carolina State Bar’s John B. McMillan Distinguished Service Award. He is a widely regarded criminal defense lawyer in North Carolina and a frequent speaker and seminar host in the legal community. If you have questions about your legal rights, we invite you to reach out to Bill Powers at Powers Law Firm for guidance.
TL;DR “Hot Take” in North Carolina vs. Escalante
The appellate court in State v. Escalante emphasized that standing is a threshold issue in any Fourth Amendment challenge. The defendant must show a personal privacy interest in the place or item that was searched. Only after that is established does the trial court move on to consider whether the search itself was lawful. In Escalante, the Court found that the defendant did not have a possessory interest or a reasonable expectation of privacy in the phone that was used to locate him.
Standing to Challenge a Search | Criminal Search & Seizure in North Carolina
The defendant in Escalante argued that the surveillance used to locate him was unlawful because it was issued without probable cause. He moved to suppress the evidence that resulted from that surveillance. The trial court denied the motion, concluding that the defendant lacked standing to challenge the search. The Court of Appeals agreed.
The case arose from a shooting that occurred on April 29, 2019, outside a restaurant in Charlotte, North Carolina. The victim was shot and killed. Police obtained an arrest warrant for the defendant and asked a specialized unit to help locate him.
Law enforcement obtained a trap-and-trace court order. Federal agents then used a cell site simulator to locate the defendant based on a phone call made to the defendant’s mother. Officers located the defendant inside a residence, surrounded the home, and arrested him several hours later when he came outside.
After the arrest, the defendant was taken to jail. While there, he made a phone call during which he admitted to the shooting and stated that he believed someone had informed on him. Over the defendant’s objection, that phone call was admitted into evidence at trial.
The defendant filed a motion to suppress, arguing that the evidence was obtained through unlawful electronic surveillance. The trial court denied the motion. A jury later convicted the defendant of first-degree murder under the felony murder rule. He appealed.
On appeal, the court explained the standard of review. It must determine whether the trial court’s findings of fact are supported by competent evidence and whether those findings support the legal conclusions. Findings that are supported by evidence are binding, especially where the defendant does not challenge them.
| Legal Concept | Governing Law and Explanation |
|---|---|
| Constitutional protection | The Fourth Amendment to the United States Constitution and Article I, Section 20 of the North Carolina Constitution protect against unreasonable searches and seizures. |
| When constitutional protections apply | Search and seizure protections apply to government action by law enforcement or government agents, not purely private conduct unless law enforcement directed or participated in the search. |
| Standing to challenge a search | A defendant must establish a personal privacy interest in the place, property, or data searched before a court evaluates probable cause or the legality of the search. |
| Reasonable expectation of privacy | Courts examine whether the defendant had a subjective expectation of privacy and whether that expectation is one society recognizes as reasonable under constitutional standards. |
| Role of probable cause | Probable cause becomes relevant only after standing is established. Without standing, the court does not reach probable cause or reasonableness. |
| Suppression of evidence | N.C.G.S. § 15A-974 governs suppression of evidence in North Carolina and authorizes exclusion when evidence is obtained in violation of constitutional protections or statutory requirements, provided the defendant establishes standing. |
| Digital and electronic evidence | Phones, electronic records, and location data are analyzed under the same constitutional framework, with emphasis on ownership, control, and personal privacy interests. |
Fourth Amendment| Unreasonable Search and Seizures
The Fourth Amendment protects people from unreasonable searches and seizures of their own persons, homes, papers, and effects. A defendant generally cannot object to the search of property that belongs to someone else. To challenge a search, a defendant must show standing. Standing requires two things: a possessory or ownership interest in the property searched and a reasonable expectation of privacy in that property.
The court acknowledged that people can have a reasonable expectation of privacy in the whole of their physical movements. However, that protection applies in the context of long-term tracking that reveals a detailed chronicle of someone’s life over time. It does not protect every instance in which a phone is used or where a person happens to be at a specific moment. The United States Supreme Court has declined to decide how the Fourth Amendment applies to real-time location tracking.
Temporary use of property does not, in itself, create an expectation of privacy. Courts do not assume ownership or a possessory interest simply because someone possessed or used an item.
In Escalante, the defendant did not challenge any of the trial court’s factual findings. Those findings, therefore, controlled the appeal.
The trial court found that the defendant used a phone within a day of the murder and used that phone to communicate with family and friends. However, temporary use of a phone does not establish ownership, a possessory interest, or a reasonable expectation of privacy.
When officers later entered the residence where the defendant had been hiding, they recovered five cell phones. None of those phones matched the number used to locate the defendant. This undermined the claim that the phone belonged to him or was under his control.
In Carpenter v. United States, decided by the U.S. Supreme Court in 2018, the Court explained that modern cell phones are deeply personal devices that typically remain with their owners and function as constant companions. Cell phone location data can reveal sensitive information about a person’s movements and life.
In State v. Escalante, the North Carolina Court of Appeals relied on that U.S. Supreme Court observation in a limited way. It reasoned that if a phone truly belonged to the defendant or were under his control in a meaningful sense, it would likely have been with him when he was arrested. The fact that officers recovered multiple phones at the residence, none of which matched the number used to locate him, undermined any claim of ownership or possessory interest.
Furthermore, the defendant offered no evidence at the suppression hearing or on appeal that he owned the phone or had a possessory interest in it. His objection rested solely on the fact that he used it.
The defendant argued that the location tracking violated his expectation of privacy in his movements and relied heavily on the Carpenter v. United States decision addressing historical cell phone location data. The North Carolina Court of Appeals rejected that comparison.
In Carpenter, law enforcement obtained months of historical location data. Here, officers used real-time location information for less than an hour to locate a fleeing suspect. The Supreme Court has expressly declined to address whether real-time tracking raises the same constitutional concerns.
Because defendant Escalante failed to show that the search infringed personal Fourth Amendment rights, he lacked standing to challenge the surveillance. The trial court, therefore, did not err, and the conviction was affirmed.
Establishing Standing to Object to an Illegal Search
In North Carolina, and under Fourth Amendment doctrine more broadly, the defendant does not carry the burden of proving that a search was unlawful. The State bears the burden of justifying a warrantless search or seizure once a Fourth Amendment interest is established. That principle has not changed.
What does fall on the defendant is the preliminary burden of establishing standing. Standing is not part of the merits of a motion to suppress. It is a threshold issue. If standing is not established, the court never reaches whether a search is lawful.
Here is how the framework works in practice.
Before the trial court evaluates probable cause, statutory compliance, or constitutional reasonableness, the defendant must first show that he has a legitimate expectation of privacy in the place or thing searched.
That showing requires evidence of a possessory or ownership interest and a reasonable expectation of privacy. That is settled law in both North Carolina and on a federal level.
If the defendant makes that showing, the burden then shifts to the State to justify the search. If the defendant does not make that showing, the analysis stops.
That is exactly what happened in Escalante. The trial court and the Court of Appeals never reached probable cause or the legality of the surveillance order because the defendant never crossed the standing threshold. The court repeatedly framed the issue as a failure to establish standing, not a failure to prove illegality.
Such a distinction is easy to blur in summaries of caselaw, but it matters. Saying the defendant “failed to prove the search was unlawful” would be wrong. Saying the defendant “failed to establish standing” is correct.
The opinion itself uses careful language. It states that the defendant failed to carry his burden of showing that the search infringed his personal rights. That is a standing burden, not a suppression burden.
A defendant is not required to disprove probable cause or justify suppression at the outset. But a defendant must show that the Fourth Amendment applies to him in the first place.
Frequently Asked Questions About Search and Seizure Law in North Carolina
Does the Fourth Amendment apply to private searches and seizures?
The Fourth Amendment regulates conduct by the government, not purely private actors. When a private citizen conducts a search independently, constitutional protections do not apply unless law enforcement directed, encouraged, or participated in the search in a meaningful way. Courts focus on whether the search can fairly be attributed to government action.
What is the search and seizure law in NC?
Search and seizure law in North Carolina is grounded in the Fourth Amendment to the United States Constitution, Article I, Section 20 of the North Carolina Constitution, and the procedural rules set out in Chapter 15A of the North Carolina General Statutes. They govern how law enforcement may obtain and execute warrants, conduct warrantless searches, and how courts evaluate suppression of evidence under N.C.G.S. § 15A-974.
What is an example of an unreasonable search and seizure?
An unreasonable search may occur when law enforcement searches a home, vehicle, phone, or electronic data without a valid warrant and without a legally recognized exception, or when officers exceed the scope of consent or judicial authorization. Whether a search is unreasonable depends on the facts of the encounter and the defendant’s demonstrated privacy interest.
What three requirements must be present for the search to be legal?
North Carolina law does not impose a fixed or universal set of three requirements for every search. Courts instead examine whether law enforcement acted with proper legal authority, complied with applicable constitutional and statutory requirements, and respected the scope of the authorization relied upon. In suppression cases, courts also require the defendant to establish standing by showing a personal privacy interest before the court evaluates those issues.
Charlotte Criminal Defense Lawyers | Powers Law Firm
The decision in State v. Escalante highlights a reality that sometimes surprises people facing serious criminal charges in North Carolina. Suppression issues are not decided solely on whether law enforcement had probable cause. In some cases, they are decided earlier, at the threshold question of standing. If a Court (trial judge) determines that a defendant cannot establish a personal privacy interest in the property or data searched, the Court may never reach the legality of the search itself. That procedural step can determine the direction of a case long before trial.
This matters in high-stakes prosecutions where electronic evidence, phone data, or location information plays a central role. Charges such as felony drug charges in Charlotte, felony serious injury by vehicle, misdemeanor death by vehicle, and felony death by vehicle sometimes involve search warrants for phone records, seizure of electronic devices, “black box” data downloads, digital surveillance, social media platform posts, email, and texting records. Early analysis of standing, privacy interests, and suppression issues can shape the defense strategy that follows.
Bill Powers is a seasoned courtroom lawyer with more than thirty years of trial experience handling complex felony and serious misdemeanor cases across North Carolina. He is a former President of the North Carolina Advocates for Justice, a recipient of the North Carolina State Bar’s John B. McMillan Distinguished Service Award, and a widely respected criminal defense lawyer and legal educator. That background informs a careful, methodical approach to cases involving potentially life-altering criminal charges.
If you or someone close to you has been arrested and has questions about search and seizure issues, electronic evidence, or serious criminal charges in Charlotte Mecklenburg, Iredell, Union, Gaston, Lincoln, and Rowan Counties, the team at Powers Law Firm would be honored to help you understand where you stand and what matters next. For select matters, Bill Powers is available for legal consultation on a statewide basis.