Florida Supreme Court Rules Inevitable Discovery Doctrine Applies Only When Police In Process Of Obtaining Warrant During Illegal Search
The Fourth Amendment requires that police obtain a warrant before searching a place if probable cause does not yet exist. There are exceptions to this rule, such as consent, exigency, plain view, and search incident to arrest, to name a few. If the police illegally search, evidence uncovered during the search may be ruled inadmissible by the criminal court and not used against the defendant ("the exclusionary rule").
However, there are exceptions to this rule, too. One such exception is the "inevitable discovery doctrine," which allows for the admission of illegally seized evidence if it would have inevitably been discovered in the course of a legitimate investigation. The rule requires (1) a "reasonable probability" that the evidence would have been discovered despite the improper police procedure, and (2) the investigation must be ongoing and the prosecution must show that the facts known by the police at the moment of the unconstitutional procedure would have led to the evidence notwithstanding the police misconduct.
In Rodriguez v. State, 40 Fla. L. Weekly S691 (Fla. Dec. 10, 2015), the Florida Supreme Court held that in order to apply the Inevitable Discovery Doctrine, the prosecution must show that the police were actually in pursuit of the warrant at the time the evidence was illegally discovered.
In North Carolina, you do not have to “form” a business to start a business! However, the disadvantages outweigh the advantages. Here is a brief overview of a business owner’s options in North Carolina:
Sole Proprietor – This is the easiest type of business to form because there are no forms to submit to the Secretary of State’s Office or the IRS (as far as getting an EIN is concerned). You may need to get a business license depending on your location and type of business. You will have to pay self-employment taxes with the state.
You are your business. Therefore, your business debts are your personal debts. If your business is sued, you are sued, meaning that a judgment can be recovered out of your personal assets. This is the main reason why this is not the best type of business to form. The paperwork to the Secretary of State’s Office and the IRS is very simple and it is not expensive, so that should not be a deterrent to formalizing your business.
Partnership – This is similar to the sole proprietor except for number of people. You are your business . . . well, you and your partner(s) together are the business. This means that if one of your partners does something wrong, your personal assets may be used to pay the liability. If the wrongdoing partner has sufficient assets to cover the liability, you can sue for contribution and force the wrongdoing partner to pay. Otherwise, you are on the hook personally.
No formation paperwork is required to be filed with the Secretary of State’s Office. However, unlike the sole proprietorship, the partnership will need to get an EIN number from the IRS. Annual reports must be filed with the NCDOR and the IRS, but the partnership itself does not pay any tax. The partners individually pay income tax every year (regardless of whether you “pay yourselves” or not . . . partnership income is your income). A partnership must file a “Certificate of Assumed Name” with the county register of deed’s office.
Again, you may have to get a business license as well. Finally, you should draft a partnership agreement. This will outline how the partnership is run, how the partners are paid, and the ownership interests of each partner (if not owned equally, which is the default unless otherwise stated).
There can also be a limited partnership, which means that one (or more) of the partners has no management control but is there for investment purposes only. The limited partner is entitled to income from the partnership and enjoys limited liability in the event the partnership is sued. General partners participate in the management of the partnership and are personally liable for partnership debts. A limited partnership must file paperwork with the Secretary of State’s Office.
Limited Liability Partnership - This type of partnership has only general partners, but the partners still enjoy nonetheless affords protection from personal liability. This is certainly the way to go when it comes to partnerships. The only thing that is additionally required is registering the LLP with the Secretary of State’s Office.
Corporation – A corporation is the most formal type of business. A corporation has a board of directors, who make management decisions, and shareholders, who invest and receive income back in the form of dividends. In order to form a corporation, Articles of Incorporation must be filed with the Secretary of State’s Office. An EIN must be obtained from the IRS. If securities are offered, federal securities regulations will need to be followed. North Carolina has statutes that govern board meetings and shareholder meetings.
The main draw back of a corporation (specifically, a “C-Corp”) is the double taxation structure. When the corporation makes money, the corporation has to pay income tax. When the shareholders are paid a dividend, they have to pay income tax as well. Because the corporation is its own entity, the shareholders have no personal liability for the corporation’s liabilities.
An “S Corp” is a special type of corporation that is not taxed at the corporate level. The business profits are taxed on each shareholder’s individual tax return. However, any shareholder who works for the corporation must pay himself “reasonable compensation.” There are also more detailed and extensive filing requirements, and the corporation can have no more than 100 shareholders.
Limited Liability Company (LLC) – This is a popular option because there are not as many formalities as a corporation, but the corporation is typically only taxed once, and the owners enjoy limited personal liability. The LLC is its own separate entity for debt/liability purposes.
The IRS and NCDOR treat LLCs as partnerships for tax purposes, so there is no separate entity tax unless the LLC elects to be taxed as a corporation. If the LLC has just one owner/member, the IRS treats it as a sole proprietorship (again, no separate entity tax), so no election is required; however, the LLC will still have to make the election (partnership vs. corporation) with the NCDOR.
An LLC must be registered with the Secretary of State’s Office by filing an Articles of Organization and must file annual reports like LLPs and Corporations. If there is more than one owner/member, an operating agreement needs to be drafted governing how the LLC will be run and detailing the ownership interests of each member.
PLLCs also exist for "professionals," such as accountants, attorneys, and doctors, who are licensed by state boards. The LLC requirements are the same, but the professionals should check with the licensing board because the board will likely have additional formation and filing requirements.
This is a very basic outline of the types of business entities in North Carolina. Depending on the type of business and your goals, one might work better than another. For any of the above entities promising limited liability, it is very important that business and personal debts be kept separate. Also, some of these types of business require that the business names be unique and contain words that signify what type of business entity it is. Thus, you should consult an attorney when the time comes to formalize your business!
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Kelly Rains Jesson