State v. Guzman, COA23-412, ___ N.C. App. ___ (Jun. 4, 2024)

In this Forsyth County case, defendant appealed the denial of his request for the trial court judge’s recusal due to the judge’s issuance of several tracking and cell site location orders. The Court of Appeals majority affirmed the denial of the request for recusal. 

In 2019 and 2020, law enforcement obtained several orders to intercept cell phone calls and conversations between defendant and co-conspirators from a judicial review panel under G.S. 15A-291. After obtaining these orders, law enforcement sought three more orders allowing a GPS tracking device, a pen register and trap and trace device, and cell site location information and call detail records for two target phones relevant to defendant. These three orders were issued in December 2019 and January 2020 by the same judge who would later preside over the trial and form the basis of the request for recusal. After defendant was indicted for trafficking cocaine, he raised the issue of recusal with the trial court, pointing to G.S. 15-291(c). The trial court refused the request for recusal, as “the orders were authorized pursuant to sections 15A-262 and 15A-263 of Article 12, not pursuant to section 15A-291 of Article 16, and [the trial court judge] was not part of a judicial review panel as stated in the plain language of section 15A-291(c).” Slip Op. at 3. After defendant’s conviction, he appealed, arguing recusal was required.

The Court of Appeals first explained defendant’s arguments, noting the primary point that Article 16 of G.S. Chapter 15A, and G.S. 15-291 itself, both reference “electronic surveillance,” seemingly showing that the recusal requirement from the statute controls all requests for surveillance involving electronic means. The court rejected this conclusion, explaining “[t]he plain language of section 15A-291(c) only disqualifies judges who enter orders as part of a judicial review panel that authorize ‘any manner related to information gained pursuant to a lawful electronic surveillance order.’” Id. at 7. The court also noted that defendant failed to preserve a challenge to the validity of the orders, meaning its conclusion was solely on the recusal issue.

Judge Hampson concurred by separate opinion, expressing concern about the scope of the order issued by the judge permitting the collection of cell site location information under Article 12 of G.S. Chapter 15A. 

Judge Arrowood dissented, and would have held that defendant adequately preserved the challenge to the validity of the orders issued by the judge, and that G.S. 15A-291(c) was applicable to the orders and required the judge’s recusal.