News Roundup

I wrote last week about the different state and federal approaches to sealing search warrants and related documents. It was a timely topic in light of the search warrant the FBI obtained for former President Trump’s home at Mar-a-Lago. That search warrant and the inventory of items seized from former President Trump’s home have already been unsealed, but the affidavit supporting the issuance of the warrant has not. This week, the magistrate judge who issued the warrant heard arguments about whether the affidavit should be made public as well. ABC11 reports here that the judge plans to release at least a redacted version of the affidavit. The Department of Justice argued that the affidavit provides a road map to its investigation. It has a week to submit proposed redactions to the court. Keep reading for more news. Continue reading

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Case Summaries – N.C. Court of Appeals (August 16, 2022)

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 16, 2022. This summary will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

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No Appeal for District Court Probationers Who Waive Their Right to a Hearing

Under G.S. 15A-1347(b), if a defendant waives a probation revocation hearing in district court, he or she may not appeal the revocation or imposition of a split sentence to superior court for a de novo violation hearing. That law was enacted in 2013 as part of legislation designed to streamline the superior court caseload, focusing it on contested cases and those implicating a defendant’s right to a jury trial. S.L. 2013-385. I wrote a post about that law in 2014, here, wondering about some of the then-new law’s wrinkles. The Court of Appeals considered its first case under G.S. 15A-1347(b) last year in State v. Flanagan, 2021-NCCOA-456, 279 N.C. App. 228 (2021). Continue reading


Case Summaries: Fourth Circuit Court of Appeals (July 2022)

This post summarizes criminal and related decisions published by the Fourth Circuit Court of Appeals during July 2022. Cases of interest to state practitioners are summarized monthly. Previous Fourth Circuit case summaries are available here. Continue reading

Public Access to the Mar-a-Lago Search Warrant (and Other Federal Search Warrants and Related Documents)

Last week, the FBI searched former President Trump’s home at the Mar-a-Lago Club pursuant to a search warrant. At first none of the relevant documents were publicly available. The application, the warrant itself, and the inventory were all sealed. The Government, with the consent of former President Trump, later moved to unseal the warrant and the inventory. That motion was granted and anyone can access the now-public documents here. The application remains under seal, though members of the news media have moved to unseal it. Because several people asked me about public access to federal search warrants and related documents, and because the process isn’t exactly the same as it is under state law, I thought I’d do a post comparing state and federal law on this issue. Continue reading

State v. Rouse and Circumstantial Evidence of Driving

To prove impaired driving, the State must establish that the defendant drove a vehicle while impaired. A person drives when he or she is “actual physical control of a vehicle which is in motion or which has the engine running.” G.S. 20-4.01(25). Sometimes the State may establish driving through direct evidence. For example, a law enforcement officer or another witness may observe the defendant driving and may testify to that fact. In other cases, a law enforcement officer may encounter the person the officer believes was driving after the driving has concluded, perhaps in or near the car or at some other location. In those cases, the State may seek to establish driving based on circumstantial evidence. The Court of Appeals’ recent opinion in State v. Rouse, 2022-NCCOA-496, __ N.C. App. ___ (July 19, 2022), considers when such circumstantial evidence is sufficient to survive a motion to dismiss.

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New Podcast: The N.C. Criminal Debrief

I’m pleased to announce that a new project, the North Carolina Criminal Debrief Podcast, is up and running. As you might guess, the podcast focuses on criminal law issues affecting the state. The idea is to provide another platform for folks to stay abreast of developments in the field in a way that is accessible to both court system actors and the public at large. You can tune into the podcast on the SOG website at the link above or on Spotify, Stitcher, or Apple. If you like what you hear, please like, subscribe, and pass it along!

Three episodes are currently available, and I expect to release new ones each month or so. The episodes have focused on case and legislative updates so far, but I plan to have interviews with guests and focused episodes digging into specific topics. The most recent episode covers the last-minute legislative changes passed this summer to preserve the state hemp industry, recent decisions by the U.S. Supreme Court, and the recent decisions by the North Carolina Supreme Court on de facto life sentences for juvenile offenders. It is around 30 minutes, which is half as long as the first couple of episodes. It’s still an evolving project and I would love any feedback or suggestions. Is there something you would like to see covered? Any other thoughts on the format? Shoot me an email and let me know. As always, I can be reached at


Determining Eligibility for Return of Guns

Lately I have received a number of questions relating to whether it is appropriate to return guns following a temporary firearms disqualification. The issue seems to arise most commonly when a domestic violence restraining order (“DVPO”) is issued under Chapter 50B of the North Carolina General Statutes, which requires the surrender of guns by a defendant in certain circumstances and allows the defendant to seek return of the guns following the expiration of the order and final disposition of any related criminal charges. See G.S. 50B-3.1.

The issue of returning guns could pop up in other circumstances involving the seizure or surrender of guns. An interplay of state and federal law determines whether a person is disqualified from possessing firearms, temporarily or permanently, and some of the wrinkles are counterintuitive. This post examines some of the most common grounds for disqualification and discusses some limits of state authority in this area. It’s long, but I hope readers find it useful. Continue reading

Does the First Amendment Protect a Right to Verbally Abuse the Police?

Editor’s note: This post contains vulgar language that isn’t suitable for children and quite possibly many adults. If you’re an email subscriber, your spam filter probably won’t like it, either. Also, it is quite long.

A federal court of appeals recently ruled in favor of a man who called a group of police officers “bitch ass fucking pigs,” “motherfuckers,” and “dirty rat bastards.” It found that his arrest on disorderly conduct charges was unjustified because “mere epithets” directed at a law enforcement officer, no matter how coarse or profane, do not constitute fighting words and are protected by the First Amendment. Wood v. Eubanks, 25 F.4th 414 (6th Cir. 2022). This raises the question: do police officers really have to put up with this? Continue reading

News Roundup

Matthew Fishman, a sergeant in the Wayne County Sheriff’s Office, was shot and killed this week while attempting to serve involuntary commitment papers. He leaves behind a wife and two children, as well as many other friends and family members. Two other deputies were also shot but will survive. The man they were trying to serve shot and killed himself before a SWAT team entered his home. ABC11 has the story here. Read on for more, and less tragic, news. Continue reading

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