2015 Sentencing Commission Statistical Report Available

It’s a snow day across much of North Carolina. If your power is on (and your internet connection is working), today’s post will give you something to read by the fire. Allow me to make my annual plug for the North Carolina Sentencing and Policy Advisory Commission’s Structured Sentencing Statistical Report for Felonies and Misdemeanors. Continue reading

I’ve Been Arrested . . . But Committed No Crime

[Author’s Note:  This post has been substantively edited to make corrections in response to helpful comments from readers.]

A person generally may not lawfully be arrested unless there is probable cause to believe he has committed a crime. But there are several exceptions to this rule. Most involve arrests made pursuant to an order for arrest issued by a judicial official. A judicial official may, for example, issue an order for the arrest of a defendant who fails to appear in court or who violates conditions of probation. See G.S. 15A-305(b). And there is one circumstance in which a law enforcement officer may, without a judicial order or warrant for the defendant’s arrest and without probable cause to believe a crime has been committed, arrest a defendant. That’s when the officer has probable cause to believe the defendant has violated a condition of pretrial release. G.S. 15A-401(b)(1),(b)(2)(f.).

Arrests for violations of pretrial release conditions. The General Assembly amended G.S. 15A-401(b) in 2011 to authorize officers to make warrantless arrests of a defendant based on probable cause that the person had violated a condition of pretrial release, regardless of whether the violation occurred in or out of the officer’s presence. Those amendments were effective for violations of pretrial release conditions that occurred on or after December 1, 2011. Before that time, officers were authorized to make warrantless arrests for defendants who were charged with crimes of domestic violence and who violated a condition of release for that crime, but were not permitted to arrest defendants who were charged with other types of crimes for a violation of their pretrial release conditions. See S.L. 2004-186, Sections 13.1 -.2. Under current law, officers may arrest for any pretrial release violation, regardless of the nature of the underlying offense. See G.S. 15A-401(b)(1), (b)(2)(f.) (authorizing arrest based on probable cause that defendant has violated pretrial release order under G.S. 15A-534 (which governs the determination of conditions of pretrial release for crimes generally) or G.S. 15A-534.1(which governs the setting of pretrial release conditions for crimes of domestic violence)).

What happens when a person is arrested? Upon arresting a defendant for a violation of a pretrial release order, an officer must take the defendant before a magistrate for an initial appearance. G.S. 15A-501(2); 15A-511(a). The magistrate must first determine whether there is probable cause to believe that the defendant violated the conditions of release.  Then, if the magistrate finds probable cause, he or she must set new conditions of initial release.  The magistrate does not modify his or her earlier release order; instead he or she imposes new conditions of release, which supersede the prior release order.

No authority to hold. There is no statutory authority authorizing a magistrate to hold a defendant charged with violating a condition of pretrial release without setting new conditions of release. Confusion about this issue abounds when a defendant who was initially charged with a crime of domestic violence is arrested for violation of the pretrial release order. This might occur if, for example, the defendant was ordered to have no contact with the victim and he is later discovered in the victim’s home with the victim’s consent. An officer who learns of the defendant’s presence may arrest the defendant based on probable cause that the defendant has violated the pretrial release order. The defendant in this circumstance has not, however, committed a new crime, much less a crime of domestic violence. Thus, a magistrate must set conditions of release at the defendant’s initial appearance following his arrest.

Is this constitutional? Some defendants have complained that being arrested for a violation of an order based on conduct that is not itself a crime is unconstitutional. None of those complaints appear to have reached our appellate courts. If and when they do, I’m skeptical about their prospects for success. Other courts have recognized that when a defendant “breach[es] a condition of the bond originally set by the court, [he] forfeits the right to continued release under the terms of that bond.” State v. Paul, 783 So.2d 1042 (Fla. 2001). That same sort of reasoning appears to underlie the legislature’s authorizing of officers to arrest for violations of pretrial release orders.

Sentencing Whiteboard: How Consecutive Felonies Are Served

Today’s post explains the “single sentence rule” of G.S. 15A-1354(b), the law that tells the prison system how to administer consecutive felony sentences. Knowing the rule is essential to figuring out the release date and post-release supervision term for a defendant who receives consecutive sentences.

The video is longer than I would generally like for these things to be, but it takes a little time to spell out the full rule. One thing it does not address is the related question of whether a judge should take the single sentence rule into account when advising a defendant of the maximum possible sentence for his or her convictions. Jessie discussed that issue here.

Knives and the Right to Bear Arms

There’s been a great deal of litigation recently about firearms and the Second Amendment. But guns aren’t the only “arms” sometimes carried for self-defense, and there have been several recent cases about the status of knives under the federal Constitution and state constitutions. Continue reading

News Roundup

Catharine Arrowood, the president of the North Carolina Bar Association, recently wrote this piece about court funding in North Carolina. It’s received considerable attention. The thrust of the argument is this: “[W]hile our population has been increasing by double digits and the technology and tools available to better serve a large and widespread population have been improving, we cut spending on our courts from 3% of our state budget to 2.2%. No wonder too many of our court personnel work extra jobs to make ends meet. No wonder we have been unable to implement a statewide electronic filing and case management system. No wonder we have insufficient money to conduct jury trials and pay court reporters.” The article indicates that the General Assembly may address the funding problem, but contends that structural reforms should also be considered, including moving to a regional, rather than county-based, system. It’s worth a read. Continue reading

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Recent Case on Authentication of Surveillance Video

More and more criminal cases involve video evidence, whether from patrol car dash cameras, store surveillance cameras, witness cell phone cameras, or, in the near future, wearable cameras. It’s important to know the authentication requirements for such evidence. A recent court of appeals case sets a high bar for admissibility. Continue reading

Sentencing Whiteboard: How Class B1-E Felonies Are Served

I recorded another whiteboard-style presentation on sentencing law. Today, the focus is on how active sentences for Class B1–E felonies play out in practice.

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North Carolina Supreme Court Upholds Warrantless Seizure of Drugs on a Home’s Curtilage

The Fourth Amendment protects the home as well as its curtilage, which is defined as the area immediately surrounding the home and associated with it. Recently, the North Carolina Supreme Court in State v. Grice, 2015 WL 304075 (Jan. 23, 2015), was confronted with a Fourth Amendment issue involving the curtilage. The court held, reversing the court of appeals, ___ N.C. App. ___, 733 S.E.2d 354 (2012), that officers who were validly on the curtilage of a residence to conduct a knock and talk did not violate the Fourth Amendment when they saw marijuana plants 15 yards away on the curtilage and warrantlessly seized them. Continue reading

News Roundup

Shea wrote yesterday about the top news around here: the killing of three Muslim university students by a man who lived in the same Chapel Hill apartment complex as the victims. It’s part of a string of tragic events for university students in the state, including the deaths of nine Appalachian State University students since September, the murder of UNC student Faith Hedgepeth in 2012, and, farther back, the killings of student body president Eve Carson of UNC and graduate student Abhijit Mahato of Duke in 2008. Terrible for the students, obviously, and of course crushing for their parents. Tough times. Continue reading

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The Significance of Naming a Hate Crime

The murder of three young, gifted students in Chapel Hill Tuesday evening has generated a local, national, and international outpouring of grief and outrage. Deah Barakat, 23, his wife, Yusor Abu-Salha, 21, and her sister, Razan Abu-Salha, 19, were shot dead in the Finley Forest condominium where newlyweds Deah and Yusor lived. A neighbor, Craig Stephen Hicks, fled the area after the shooting, but later turned himself into law enforcement officers. Hicks is charged with first degree murder in their deaths, and is being held without bond in Raleigh’s Central Prison. Police say that the killings were motivated by an ongoing neighbor dispute about, of all things, parking. Nevertheless, many, including Yusor and Razan’s father, suspect it also may have been motivated by the fact that the three were Muslims. Yusor regularly wore a headscarf—an outward manifestation of her faith. Continue reading