News Roundup

Hundreds of Venezuelan immigrants were summarily deported from the United States to a prison in El Salvador last weekend. Federal authorities relied on President Trump’s executive order invoking the Alien Enemies Act of 1798 in removing the immigrants without due process protections. The administration stated that the immigrants were members of a violent gang, Tren de Aragua, and that their alignment with the Venezuelan government and entry into the U.S. constituted an invasion by a hostile nation. Advocates for the deported Venezuelans deny their involvement with the gang and stress that the three previous times that the AEA was invoked, it was during clear times of war (the War of 1812, WWI, and WWII).

Judge James Boasberg, a federal judge in Washington, had ordered that the flights carrying the immigrants be turned around, but this did not occur, and the court is now engaged in an inquiry to determine whether the Trump administration should be held in contempt. After Trump called for the impeachment of the judge, Chief Justice John Roberts of the United States Supreme Court made a public statement that the appellate process, rather than impeachment, is the proper way to address adverse court rulings.

Read on for more criminal law news.

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When May a Trial Judge Reject a Plea Entered Pursuant to a Plea Agreement?

A trial judge has broad discretion regarding whether to accept a defendant’s guilty plea entered pursuant to a plea agreement in which the prosecutor has agreed to recommend a particular sentence. G.S. 15A-1023(b). In that circumstance, the judge must advise the parties whether he or she approves of the arrangement and will dispose of the case accordingly. If the judge rejects the arrangement, the judge must so inform the parties, refuse to accept the plea, and advise the State and the defendant that neither is bound by the rejected arrangement. The judge must tell the parties why he or she rejected the arrangement and give them an opportunity to modify it to meet the judge’s approval. The parties are not required to modify the arrangement, and, upon rejection of the arrangement, the defendant is entitled to have the case continued to the next session of court.

The judge’s rejection of the arrangement must be noted in the record, but such a rejection does not appear to preclude another judge from later accepting the arrangement. (The notation of the trial court’s discretionary decision arguably is not a discretionary order of the sort that would require changed circumstances to justify modification by another judge. See generally Michael Crowell, One Trial Judge Overruling Another, Administration of Justice Bulletin No. 2015/06 (UNC School of Government December 2015) (discussing the general rule that one trial judge may modify an order entered by another trial judge on a matter of discretion only if there has been a substantial change in circumstances)).

Those rules apply to a plea agreement in which the State has agreed to recommend a sentence. But what about arrangement where the State makes no such recommendation? Does the trial court retain discretion to reject those?

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Spring 2025 Cannabis Update

I have been covering developments around the legalization of hemp in North Carolina since 2018. Never did I suspect then that I would still be working on the topic all this time later, but here we are. My last post on In Re: J.B.P. covered the then most recent developments around probable cause and the odor of cannabis. That opinion was withdrawn and has yet to reissue, but subsequent cases have basically affirmed the logic on which the case was decided. This month, the Court of Appeals released State v. Ruffin, COA24-276,  ___ N.C. App. ___ (March 5, 2025), weighing in on evidentiary challenges to opinion evidence identifying a substance as marijuana, as well as on jury instructions for marijuana cases. This post examines these and other recent legal developments impacting the state’s criminal cannabis law. Read on for the details.

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When Can the Police Seize a Cell Phone Incident to Arrest, and How Long Can They Keep It?

Riley v. California, 573 U.S. 373 (2014), holds that the contents of a cell phone may not be searched incident to arrest, but allows for the possibility that the phone itself may be seized incident to arrest. This post addresses when such a seizure is permissible and how long it may last.

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News Roundup

The news story that captured my attention this week is not exactly, or not entirely, a criminal law story. Mahmoud Khalil, who helped lead pro-Palestinian protests at Columbia University, was arrested this week by ICE agents at the university-owned apartment where he lived. (Khalil apparently was a graduate student at the university until December.) Khalil is a lawful permanent resident of the United States – that is, a green card holder – but the agents indicated that his status would be revoked as a result of what the Trump administration views as his anti-Semitic advocacy. He remains in custody but has lawyered up, raising interesting questions about the government’s ability to revoke legal permanent residency based on speech. A federal judge has ordered that he not be deported pending further proceedings. The AP has more here and here. Keep reading for more news.

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The End of the Super-Contingent Sentence

Under G.S. 15A-1346(b), a sentencing court has the authority to order a probationary sentence to run consecutively to an undischarged term of imprisonment. Probation officers refer to that as a “contingent” sentence, because for them, it is—the start of the probation is contingent on the person’s release from prison. A contingent probationary sentence can be helpful when, for example, a defendant owes a lot of restitution, and the court wants to make sure there’s plenty of time on probation remaining after the defendant finishes any active sentences. To be clear, this is not a matter of whether the suspended term of imprisonment, if revoked, will run concurrently with or consecutively to some other term of imprisonment. This is about when the period of probation itself begins. A recent Court of Appeals decision changes things.

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When is Double Jeopardy a Rule of Evidence?

The defendant in State v. Greenfield, No. COA23-597 (N.C. Ct. App. Feb. 19, 2025), argued the trial court erred by admitting evidence and allowing argument about an attempted armed robbery charge for which he had previously been acquitted. The Court of Appeals posited that evidence is inadmissible under the Double Jeopardy Clause only when it falls within the scope of the collateral estoppel doctrine, which precludes relitigation of an issue of fact previously determined by a final judgment. The Court of Appeals concluded that the trial court did not err by failing to intervene in the closing argument here, but its formulation of the rule begs the question: under what circumstances will double jeopardy require the exclusion of evidence? This post attempts to answer that question.

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News Roundup

A man is scheduled to be executed by firing squad this evening, which would be the first firing squad execution in the United States in the last 15 years. On Wednesday, Brad Sigmon’s final appeal to the South Carolina Supreme Court was denied. In South Carolina, death row inmates may choose between firing squad, lethal injection, and electrocution.  Sigmon said he felt forced to choose execution by firing squad over lethal injection because of a lack of information about the drugs used and the “fear of a tortuous death.” He also said he didn’t choose electrocution because he didn’t want to suffer “by being cooked alive.” Sigmon’s attorneys attempted to delay the execution to get a fuller hearing in court to learn more information about the drugs used in lethal injection, but their request was denied. Sigmon plans to ask Governor Henry McMaster for his sentence to be commuted, although no South Carolina governor has granted clemency since the death penalty restarted in 1976. Read on for more criminal law news.  

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