Controlled Buys, Middlemen, and Probable Cause

Last week, the Court of Appeals of North Carolina decided State v. Frederick, a case about whether a controlled purchase of drugs provided probable cause to issue a search warrant. Before you say “the answer is yes, that fact pattern happens all the time,” be aware that Frederick presents a wrinkle. The wrinkle is that the controlled buy was conducted not by a confidential informant, but by an unknown “middleman” who the informant drove to the suspect’s home. Does the injection of an intermediary undermine probable cause? Read on to find out! Continue reading


News Roundup

Seven inmates were killed and many others were wounded during a prison riot in South Carolina on Sunday night.  Columbia newspaper The State reports that a disagreement over gang territory and contraband erupted into a massive and violent fight that spanned three dormitories at Lee Correctional Institution, a maximum-security facility located between Columbia and Florence.  The report from The State paints a bleak picture of Lee Correctional and other South Carolina prisons, saying that the state’s prisons as a whole “are rife with violence, illegal weapons, and gangs.”  The incident is the nation’s deadliest prison riot in 25 years.  Keep reading for more news.

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Misdemeanor Prior Conviction Level

For felony sentencing, a defendant’s criminal history is scored as a “prior record level.” The analogous measure for misdemeanor sentencing is “prior conviction level.” There are important differences between the two measures. Continue reading

State v. Fincher: No Foundation Required for DRE Testimony

The court of appeals held yesterday in State v. Fincher, ___ N.C. App. ___, ___ S.E.2d ____ (2018), that the trial court did not abuse its discretion when it permitted a drug recognition expert to testify in a DWI trial that the defendant was under the influence of a central nervous system depressant. The defendant argued that the State failed to lay a sufficient foundation to establish the reliability of the drug recognition examination, but the court determined that no such foundation was required as the General Assembly had legislatively sanctioned the admission of this type of evidence under Rule 702(a1)(2).

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Shhhh! Whisper Stops and U.S. v. Bowman

I recently summarized a Fourth Circuit traffic stop case arising out of western North Carolina, U.S. v. Bowman, 884 F.3d 200 (4th Cir. 2018). It’s an interesting case in its own right as an application of U.S. v. Rodriguez, 135 S. Ct. 1609 (2015) (holding that extensions of a traffic stop must be supported by reasonable suspicion). In short, the Fourth Circuit reversed the trial court’s denial of the defendant’s motion to suppress, finding that the trooper lacked reasonable suspicion to extend the stop after the traffic stop was completed and vacating the defendant’s drug conviction. There are interesting issues in the case about when a seizure occurs and about whether the defendant consented to the extension of the stop, and readers are encouraged to check out the case, or at least the summary here (you can read all of the Fourth Circuit case updates here).

What caught my eye about it was a footnote in the opinion. Before the state trooper encountered the defendant, the Drug Enforcement Administration (“DEA”) passed along a tip to the local authorities in N.C. that the defendant’s vehicle was suspected of trafficking meth. That tip provided the vehicle’s license plate number and a description (“a red, older model Lexus”). According to the footnote, “The government agrees that the DEA tip should not be considered in any way in our legal analysis.” Slip op. at 3 n.1. Why would that be? After some digging and help from attorneys in the Charlotte Office of Federal Public Defender (thanks again to Ann Hester, Kevin Tate, and Mary Ellen Coleman from that office for talking about the case with me), I was able to determine that this was an instance of a so-called “whisper” stop. Although not exactly a new practice, its application in the digital age raises interesting questions. The tip aspect of the case is not discussed in Bowman beyond the brief mention in the footnote, but the case is a clear sign that the practice is occurring in North Carolina and elsewhere, so I wanted to cover it in today’s post. Continue reading

Search Warrants for Lawyers’ Offices

Last week, the FBI executed a search warrant at the office of Michael Cohen, a lawyer who has worked for President Trump. The Washington Post reports that Cohen is being “investigated for possible bank and wire fraud,” perhaps in connection with “buy[ing] the silence of people who . . . could have damaged Trump’s candidacy in 2016.” The New York Times story on the matter is here. President Trump and others have suggested that the execution of the warrant was inappropriate because it infringes on the attorney-client privilege. Without getting into the politics, what do we know about the law? Continue reading


News Roundup

On Monday morning, the FBI executed a series of search warrants at the home, office, and hotel room of Michael Cohen, a personal attorney for President Donald Trump and a former executive at the Trump Organization.  News reports say that the warrants were sought by the U.S. Attorney’s Office for the Southern District of New York based on a referral by the Office of Special Counsel, Robert Mueller, and that Cohen is under investigation for bank fraud, wire fraud, and campaign finance violations.  Keep reading for more news.  Continue reading

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Legal Financial Obligations Table

In my last post I wrote about some of the statutory options for providing relief from various criminal legal financial obligations. Several of my “friends” gave me a hard time about the post, saying the subject must be pretty complicated if I wasn’t able to compile it into some sort of table. Challenge accepted. Continue reading


Surviving Your Next Sovereign Citizen

This scenario will sound familiar to many criminal attorneys:  you’re in court, the DA calls the next case, and the judge asks John Q. Defendant how he pleads?

“Your Honor, I am not ‘JOHN Q. DEFENDANT,’ which is a fictional corporate entity. I am a natural living being, appearing pro per on behalf of John Q. Defendant, free citizen, for the limited purpose of challenging jurisdiction….” What follows next is a confusing series of questions to the judge about standing and injured parties, and quasi-legal arguments full of buzz words about the U.C.C., admiralty court, strawmen, right to travel, capital letters, red ink, fiduciaries, de facto government, accepted for value, etc. On and on and on it goes, for however long the court is willing to listen.

Yep, you’ve got a “sovereign citizen” on your hands.

Readers may have different opinions on the best way to handle these defendants in court (which I hope you will share in the comments), but I recommend taking the simplest approach of all: don’t play the game.

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GiveUNC: A Message from the Dean

Today’s post is a little bit different from our usual fare. It doesn’t analyze a recent case or answer a frequently asked question. Instead, it is a message from Mike Smith, the Dean of the UNC School of Government, about GiveUNC — an annual, one-day event during which we ask those who value the university to help support its mission. Check out the Dean’s message below, and please consider contributing if you’re able to do so.

Whether you attended classes at the UNC School of Government, consulted with our faculty, or used our books and blogs—we exist because of you.

Today is a special day because we’re spending 24 hours celebrating the University, the School, and all of the individuals and institutions we reach across the state. And we hope we can count on you to help us reach even farther. 

If 150 people can step up and donate today, we have an opportunity to earn an additional $7,500, thanks to generous anonymous donors.

We know that you have many demands on your time, talent, and resources and we appreciate all that you do for the people of North Carolina. If you can give today, you’re equipping us to train more public leaders and helping strengthen our state. 

Learn more about GiveUNC and how the School is celebrating at

We are grateful for your support.

Michael R. Smith


UNC School of Government

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