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Constitution of North Carolina

ARTICLE I Declaration of Rights

Sec. 21. Inquiry into restraints on liberty.

Every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the restraint if unlawful, and that remedy shall not be denied or delayed. The privilege of the writ of habeas corpus shall not be suspended.

Cross References. - As to habeas corpus, see G.S. § 17-1 et seq.

History Note. - The provisions of the first sentence of this section are similar to those of Art. I, § 18, Const. 1868, and the provisions of the second sentence of this section are similar to those of Art. I, § 21, Const. 1868.

Legal Periodicals. - For article surveying recent decisions by the North Carolina Supreme Court in the area of criminal procedure, see 49 N.C.L. Rev. 262 (1971).

For comment, "Out of Sight, Out of Mind: Indefinite Confinement and the Unconstitutional Treatment of North Carolinians with Mental Retardation," see 35 Campbell L. Rev. 257 (2013).


No Claim Exists under This Section Where a Different State Remedy Was Available. - Summary judgment was proper in favor of the defendant city on each of plaintiff's state constitutional claims arising under this section and Art. I, §§ 19 to 21, 35, and 36, where the plaintiff bus driver had an adequate state tort remedy for her alleged injury resulting from the defendant police officer's conduct. Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601 (2000).

It was not error to grant summary judgment in favor of a police officer and a city, as to a citizen's claims under N.C. Const. art. I, §§ 19, 20, 21, and 35, based on the officer's alleged use of excessive force, because the fact that the citizen had to overcome the affirmative defense of public officer immunity to succeed on the citizen's tort claims did not negate the claims' adequacy as a remedy, so a direct cause of action under the North Carolina Constitution was not permitted. Debaun v. Kuszaj, 238 N.C. App. 36, 767 S.E.2d 353 (2014).

Search and Seizure. - Where an officer observed defendant drive over a curb, back away from the officer, and reach into a pocket in a location known for drug activity, defendant's motion to suppress was properly denied because the officer had reasonable suspicion to make an investigatory stop and had probable cause to seize a film canister from defendant's pocket during a pat-down for weapons based on, inter alia, defendant's actions, the area's reputation, and the officer's prior experiences. State v. Robinson, 189 N.C. App. 454, 658 S.E.2d 501 (2008).

For discussion of the writ of habeas corpus, see State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968), decided under Art. I, § 18, Const. 1868.

Statute Prescribing Inmate Grievance Procedures Upheld. - Former G.S. § 148-113, requiring an inmate to exhaust his administrative remedies before he is entitled to judicial review of a grievance or complaint within the jurisdiction of the Inmate Grievance Commission, did not conflict with constitutional and statutory provisions guaranteeing the privilege of the writ of habeas corpus, since former G.S. § 148-113 only prescribed the method by which the inquiry into the lawfulness of an inmate's detention is to be conducted. Hoffman v. Edwards, 48 N.C. App. 559, 269 S.E.2d 311 (1980).

Restraint on Court's Power to Release Inmate Acquitted on Grounds of Insanity Not Valid. - The power of the court to discharge a person acquitted of crime because of insanity upon habeas corpus cannot be made to depend solely upon certification by the superintendents of the several State hospitals that he is sane and safe. Such a condition deprives the court of any exercise of judicial discretion and nullifies its power to release an inmate being illegally detained in a mental hospital. In re Tew, 280 N.C. 612, 187 S.E.2d 13 (1972).

Applied in Jones v. Keller, 364 N.C. 249, 698 S.E.2d 49 (Aug. 27, 2010).

Cited in State v. Price, - N.C. App. - , 611 S.E.2d 891 (2005); State v. Gabriel, 192 N.C. App. 517, 665 S.E.2d 581 (2008); State v. Rouse, 198 N.C. App. 378, 679 S.E.2d 520 (2009); State v. Chapman, 228 N.C. App. 449, 747 S.E.2d 114 (2013); Adams v. City of Raleigh, - N.C. App. - , 782 S.E.2d 108 (2016), review denied, 793 S.E.2d 224, 2016 N.C. LEXIS 845 (2016).

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