I concluded last week’s post on District of Columbia v. Wesby, ___ U.S. ___ (2018), with a promise to return to Justice Ginsburg’s suggestion in her concurring opinion that it might be time for the Court to re-think Whren v. United States, 517 U.S. 806 (1996). So let’s take a closer look.
Shea Denning
Probable Cause and the Party at Peaches’ House
The United States Supreme Court issued its opinion in District of Columbia v. Wesby on Monday, holding that police officers had probable cause to arrest 16 people for unlawful entry after finding them reveling in a vacant house without the permission of its owner. The court further held that even if one assumed the officers lacked probable cause, they were entitled to qualified immunity because there was no clearly established law that rendered their actions unreasonable. The D.C. Circuit and the trial court had ruled otherwise, leading to a compensatory damages award of nearly $700,000 for the plaintiffs.
While trial courts are regularly called upon to evaluate whether facts known to an officer provide probable cause of criminal activity, it is less common for the Supreme Court to engage in such factbound determinations. Thus, the analysis in Wesby, whose language doubtless will soon be cited in the North Carolina reporters, warrants a closer look.
Court of Appeals Reconsiders State v. Reed and Again Finds a Fourth Amendment Violation
The court of appeals decided another significant Rodriguez case yesterday, ruling (again) in State v. Reed that the highway patrol trooper who stopped the defendant for speeding on Interstate 95 detained the defendant for longer than necessary to carry out the mission of the stop without reasonable suspicion of other criminal activity.
Theft, Possession, and Hendricksen
Defendant commits an armed robbery in county A, obtaining stolen goods that he transports to county B. May the defendant be prosecuted and punished for armed robbery in county A and be separately prosecuted and punished for possession of stolen goods in county B?
Swatting: An Ill-Defined Crime with Potentially Deadly Consequences
I learned a new word on my drive home yesterday: swatting. Ari Shapiro, host of NPR’s All Things Considered, explained in this report that swatting occurs when a person falsely reports a crime in an effort to cause a large group of officers or a SWAT (Special Weapons and Tactics) team to converge on the scene. The prank is associated with video gamers who reportedly have used it as a form of revenge as well as entertainment.
A Look Around the Country at the Admissibility of Evidence in Drugged Driving Cases
Last week I wrote about studies examining the prevalence of driving with drugs in one’s system. Research has shown that an increasing number of drivers have detectable drugs in their symptoms. What we don’t yet know is how many of those drivers are impaired by drugs and whether the incidence of drug-impaired driving is increasing.
We do know, of course, that drug-impaired driving is dangerous. Policy-makers in North Carolina and elsewhere have attempted to combat the problem by enacting zero-drug-tolerance laws and provisions that prohibit driving with a threshold of a drug or its metabolites in one’s body. And law enforcement officers across the country have created detection protocols that are geared specifically toward the drug-impaired driver rather than a driver impaired by alcohol.
Notwithstanding these measures, drug-impaired driving continues to be prosecuted in North Carolina and other states under statutory schemes and law enforcement protocol that were primarily written and developed to deter, detect and punish alcohol-impaired driving.
Courts across the country are increasingly being required to consider how those schemes and that protocol apply to drug-impaired driving prosecutions. This post will summarize recent court rulings on the admissibility in drugged driving prosecutions of (1) evidence regarding a defendant’s performance on field sobriety tests, (2) testimony about the effects of certain drugs, and (3) lay opinion testimony about the person’s impairment. It will also review recent opinions regarding the quantum of proof necessary to establish drug-impaired driving. It will conclude with a case that demonstrates why drugged driving is a matter of serious concern.
What We Know (And What We Don’t) About Drug-Impaired Driving
Ask someone to identify an emerging area of interest related to motor vehicle law and chances are the person will mention drugged driving. Indeed, the U.S. Office of National Drug Control Policy in 2010 set a goal of reducing the prevalence of drug-impaired driving by 10 percent by 2015. People who work in the field frequently cite anecdotal evidence supporting the notion that driving while impaired by drugs is becoming more common. Are they right? Are more people these days driving while impaired by drugs?
State v. Brice: Pleading Rules for Habitual Offenses Are Not Jurisdictional
The court of appeals last year vacated Sandra Brice’s conviction for habitual misdemeanor larceny for stealing five packs of steaks valued at $70 from a Food Lion in Hickory. The reason? The indictment alleged the steak theft and Brice’s four prior convictions for misdemeanor larceny in a single count. That violated a statutory rule requiring that prior convictions be alleged in a separate count, and, in the court of appeals’ view, deprived the superior court of jurisdiction to enter judgment against Brice for habitual misdemeanor larceny, a felony offense. Earlier this month, the North Carolina Supreme Court reversed the court of appeals and remanded the case for reinstatement of the trial court’s judgment. Read on to find out why.
DWI Day at the Court of Appeals
Yesterday was opinion day at the court of appeals. And while it wasn’t officially designated as DWI opinion day, several of yesterday’s opinions resolve significant and recurring issues in DWI litigation. Today’s post will cover the highlights.
Pro Bono Service by Magistrates, Prosecutors, Public Defenders, and Others Now Allowed
Sometimes it seems lawyers have a Latin phrase for everything: Self-represented litigants? They’re pro se. The thing speaks for itself? Res ipsa loquitur. Volunteer legal work? That’s pro bono to us.
While attorneys have had an English word and Latin phrase to describe this last category, many public attorneys in North Carolina have historically had no mechanism for actually doing it. That’s because, until last July, G.S. 84-2 prohibited district attorneys, public defenders, and others from “engag[ing] in the private practice of law.” A person practices law when he or she provides legal services for another, regardless of whether the person is compensated for the work. See G.S. 84-2.1.
Recent amendments to G.S. 84-2, however, allow some public attorneys who were previously disqualified to carry out certain types of pro bono legal work.