Georgia Supreme Court Holds that Implied Consent is not Actual Consent

Prosecuting impaired drivers in Georgia just got a little bit harder. The Georgia Supreme Court held last week in Williams v. State, __ S.E.2d __ (Ga. 2015) that the mere fact that a DUI suspect agreed to allow officers to withdraw his blood–after being told that Georgia law required him to submit to testing and that his driver’s license would be revoked for a year if he refused–did not establish the sort of voluntary consent necessary to excuse the Fourth Amendment’s warrant requirement. Is this a watershed moment in implied consent law? Continue reading

Revised Sex Offender Flow Chart (March 2015 edition)

It’s time to post an updated sex offender and monitoring flow chart. I was going to do it last week, but I’m glad I didn’t. Yesterday, the Supreme Court of the United States reversed North Carolina’s appellate courts on an issue that may impact the constitutionality of SBM. The new chart, available here, incorporates Grady v. North Carolina and includes several other changes. Continue reading

Drug Dogs and Checkpoints

I’ve had several questions about the role of drug dogs at motor vehicle checkpoints. The details are below, but a quick summary of the law is as follows:

(1) Officers can’t lawfully run drug dogs around every vehicle stopped at a checkpoint

(2) Officers can lawfully run drug dogs around cars that are pulled out of line for additional investigation, so long as the use of dog doesn’t substantially lengthen the stop

A checkpoint must have a proper motor vehicle purpose. A checkpoint is constitutional only if it has a valid “primary programmatic purpose,” which needs to be related to motor vehicle enforcement, like checking licenses or for impaired drivers. General crime control or drug interdiction aren’t valid purposes. City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

Using a drug dog on every car would strongly suggest an improper purpose. Courts consider how a checkpoint is actually operated when determining its purpose. If officers were to deploy a drug dog on every vehicle, a court would likely conclude that the primary purpose of the checkpoint was drug enforcement, not license verification or impaired driving detection. Cf. State v. Kincer, 208 N.C. App. 279 (2010) (unpublished) (finding that a judge correctly ruled that a checkpoint had a proper motor vehicle purpose in part because an officer testified that “there were no drug dogs present”).

An out-of-state case on point is Com. v. Buchanon, 122 S.W.3d 565 (Ky. 2003), which ruled that a checkpoint was invalid:

The presence of the drug dog at a roadblock held in the mid-afternoon operated by only one officer trained to detect drunk drivers, coupled with the testimony of [an officer] that the purpose of the roadblock was “to detect any violation of the law,” indicates that the primary purpose of the roadblock was general crime control, or more specifically, the interdiction of illegal narcotics.

See also State v. Groome, 664 S.E.2d 460 (S.C. 2008) (affirming trial court’s ruling that a checkpoint lacked a valid purpose when it was purportedly established as a license checkpoint but “a K–9 team with a drug dog was assigned to the road-block” and “[t]he dog and his handler walked up and down the line of cars as they were stopped at the checkpoint”; even though the dog did not sniff the defendant’s car until it was pulled out of line, the court found the entire checkpoint and stop unconstitutional); State v. Hicks, 55 S.W.3d 515 (Tenn. 2001) (finding that a checkpoint had an improper purpose in part because “the record shows that at least one officer on the scene possessed and used a drug dog”); United States v. Morales-Zamora, 974 F.2d 149 (10th Cir. 1992) (ruling that officers violated the Fourth Amendment by conducting a checkpoint at which a drug dog routinely sniffed vehicles during license checks, where the chief of police acknowledged “that the real reason for the roadblock was to interdict drug traffic”).

Using a drug dog on cars that are pulled out of line for additional investigation is OK. If there is reasonable suspicion that a motorist is impaired, unlicensed, or engaged in a crime, that motorist may be pulled out of line for additional investigation. Deploying  a drug dog at that point likely would not call into question whether the primary purpose of the checkpoint is proper, and the dog sniff itself is not a Fourth Amendment concern under Illinois v. Caballes, 543 U.S. 405 (2005).

The court of appeals has commented favorably on such a procedure, in State v. Branch, 177 N.C. App. 104 (2006):

[T]he officers’ detention of defendant [at a checkpoint] to verify whether her driving privileges were valid was reasonable under the circumstances. . . . And once the lawfulness of a person’s detention is established, Caballes instructs us that officers need no additional assessment under the Fourth Amendment before walking a drug-sniffing dog around the exterior of that individual’s vehicle. . . . Thus, based on Caballes, once [a driver] was detained to verify her driving privileges, [officers] needed no heightened suspicion of criminal activity before walking [a drug dog] around her car.

A dog was also used on vehicles that had been pulled out of line in State v. Nolan, 211 N.C. App. 109 (2011) (finding that a checkpoint had a proper purpose despite the presence of a drug dog; the dog was used on the defendant’s vehicle only after the defendant was detained for sobriety tests). Cf. McCray v. State, 601 S.E.2d 452 (Ga. Ct. App. 2004) (ruling that a checkpoint had a valid motor vehicle purpose despite the presence of five dogs, but also noting that the dogs sniffed only a handful of cars and that the defendant’s car was sniffed during a somewhat prolonged stop necessitated by his presentation of a tattered license).

The mere presence of a drug dog is not a problem. If a dog may be deployed on a car that is pulled out of line, it follows that the mere presence of a dog on the scene does not itself render the checkpoint unlawful. See, e.g., Lujan v. State, 331 S.W.3d 768 (Tx. Ct. Crim. App. 2011) (ruling that a checkpoint had a valid primary purpose despite the presence of a dog and stating that “the K–9 officer and his dog were part of the interdiction unit . . . [that was] assigned to work . . . the checkpoint for license and insurance checks,” so “the K–9 officer was also there for that reason and not to do general criminal enforcement”; in other words, “[t]he fact that the K–9 officer had his dog with him does not render the checkpoint illegal”).

Duration and delay. Even when a driver is pulled out of line, a drug dog can’t be used if it would lengthen the stop by more than a few minutes, see generally, e.g., State v. Brimmer, 187 N.C. App. 451 (2007), or perhaps lengthen it at all if the dog isn’t already on the scene, see State v. Cottrell, __ N.C. App. __, 760 S.E.2d 274 (2014). The exception to that rule is that if the reason that the driver is pulled out of line is based on reasonable suspicion of a drug offense, then a reasonable delay to obtain and deploy a drug dog would be permitted.

News Roundup

195 new bills were filed in the North Carolina Senate yesterday, the deadline for filing new bills in that chamber this session. I haven’t reviewed all the new bills – or all the bills filed before yesterday, for that matter.  But a few items of interest include:

  • SB 520, which would expand the state’s indecent exposure law, possibly in response to the recent incident in Charlotte that I noted here
  • SB 579, which would allow the Commissioner of Agriculture to regulate concealed carry at the State Fair
  • SB 589, which would amend the habitual felon laws in a way that appears to be intended to clarify that previous convictions from New Jersey, which uses the term “crime” rather than “felony” as discussed here, would count
  • SB 613, the short title of which is “Prohibit Discriminatory Profiling”
  • SB 619, “Grey’s Law,” which would make various changes related to impaired driving and which I surmise is named after the DOT employee struck and killed just a few days ago
  • SB 641, which would expand eligibility for concealed handgun permits and limit sheriffs’ authority to investigate applicants and to impose application requirements not set forth in the statute
  • SB 684, which would require a judge considering a defendant’s proposed waiver of a jury trial to ask for and consider the State’s position, and determine whether the waiver is being “tendered in good faith and is not a tactic to procure an otherwise impermissible procedural advantage”

 

Of course, I should not omit mention of SB 559, which would make the Linville Caverns Spider the official state spider. Continue reading

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The Fuel Efficiency of Law Enforcement Vehicles

I live in Durham, where the ELF is built. The ELF is a pedal-and-electric-powered reverse tricycle with an egg-shaped body and a solar panel roof. It is certainly unique. A 360-degree view is available here. Organic Transit, the company that builds the ELF, states that it “gets the equivalent of 1800 m.p.g.”

What does this have to do with criminal law? Well, the company recently introduced the Tactical ELF, designed to “give[] [law enforcement agencies] the tactical advantage for community policing.” An endorsement from Duke’s campus police comments that “It’s like a small patrol car.” I doubt that the ELF is going to be a mainstream law enforcement vehicle anytime soon, but it did get me thinking about the fuel efficiency of law enforcement vehicles generally. This post summarizes what I learned. Continue reading

Discovery and Testimony about an Expert’s Experience with Sexual Abuse Victims

The rules of thumb about expert testimony in child sexual abuse cases are (1) that an expert can’t testify that a child was, in fact, abused absent physical evidence, and (2) that an expert can testify to common characteristics or “profiles” of sexual abuse victims. A recent court of appeals case holds that even if the State doesn’t give notice of an expert’s opinion regarding victims’ characteristics, the expert has the leeway to discuss his or her own experiences with survivors of sexual abuse. Continue reading

Two-Timing on the Weekends is Allowed  . . . and Other Rules for DWI Sentences

Spring is upon us, and today’s post addresses the top five DWI sentencing questions of the season.  Continue reading

When Probation Begins

When a defendant is convicted of more than one crime, there are decisions to be made about how the sentences for those convictions will fit together. Generally speaking, they may be consolidated for judgment, allowed to run concurrently, or set to run consecutively. If at least one of those judgments suspends a sentence and places the defendant on probation, the judge has an additional decision to make regarding when probation begins. Continue reading

News Roundup

I’ve had a couple of inquiries about this WRAL story, which begins: “A Charlotte man who stands at his front door naked is upsetting his neighbors, but police say he is not doing anything illegal.”

Granted, the indecent exposure statute, G.S. 14-190.9, requires that the exposure be in a “public place,” while this individual is inside his own home. However, without commenting on the specific facts of this case, I do not think that being inside one’s own home is necessarily a complete bar to being charged with indecent exposure. Cf. State v. Williams, 190 N.C. App. 676 (2008) (unpublished) (affirming an inmate’s conviction of indecent exposure where he exposed himself using “a food slot visible from the outside walkway” because “a reasonable probability existed that members of the general public [present in the jail] . . . might have witnessed defendant expose himself”); State v. King, 268 N.C. 711 (1966) (holding that the defendant’s car was a “public place” when it was parked in a business’s parking lot). Out of state cases, though of course decided under other statutes, also could support a charge under appropriate facts. See, e.g., State v. Blair, 798 N.W.2d 322 (Iowa Ct. App. 2011) (a defendant who was “facing forward in front of a bay window with the blinds partially pulled up while masturbating” was properly convicted of indecent exposure; “[b]eing in one’s home does not insulate a person from criminal liability for indecent exposure”); Wisneski v. State, 921 A.2d 273 (Md. 2007) (ruling that exposure to casual acquaintances in a living room was sufficiently public to constitute indecent exposure and collecting cases).

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New Crimes Supplement Now Available

North Carolina Crimes is one of the School of Government’s most indispensable criminal law titles. The latest and greatest annual supplement to the book is now available. The new cumulative supplement covers legislation enacted and case law decided from January 1, 2012, through December 31, 2014. Jessie Smith, the author of the main volume, prepared the supplement as well. Continue reading