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
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 →
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 give.unc.edu/GiveUNC/SOG.
We are grateful for your support.
Michael R. Smith
UNC School of Government
I was on a plane recently, listening to the usual safety briefing, when I heard the flight attendant say that “it is a violation of federal law” to ignore illuminated safety signs, such as the “fasten seat belt” sign. I was surprised because, on another flight, I had overheard a flight attendant tell a passenger who wanted to use the bathroom while the “fasten seat belt” sign was illuminated that she couldn’t authorize him to get out of his seat but that she wouldn’t stop him either. The sense I got from that previous exchange was that the sign was essentially a recommendation. So, I decided to look into it. Continue reading →
An officer normally needs a search warrant to search a residence, unless an exception to the warrant requirement applies. That’s because residences are protected by a reasonable expectation of privacy under the Fourth Amendment. But what about residences that lie vacant and in disrepair? At what point do they become abandoned such that the reasonable expectation of privacy no longer applies? Continue reading →
Some law enforcement agencies concerned about officers’ exposure to fentanyl have stopped field testing white powders. A question I’ve had several times is whether a magistrate may find probable cause for a drug offense involving a white powder without a field test. The answer to that question is yes, so long as the totality of the circumstances provides reason to believe that the powder in question is a controlled substance. Continue reading →
Here’s a question for you: which of the following injuries is more serious?
- The victim, a police officer injured while fighting with a suspect, “sustained puncture wounds [from bites] on his left forearm and right bicep.” The officer testified that the bites were extremely painful, and they caused “severe bruising and depressions, [and] permanent scarring . . . includ[ing] a large circle on his right bicep, ‘just over a half an inch to an inch in a circle’ with a ‘large depression[,]’ and ‘a deep ridge’ on his left arm. The officer experienced loss of sleep and extreme stress [and] had to be tested multiple times for communicable diseases.”
- The victim, a six-year-old girl injured when her father “forcibly twisted” her leg until it broke, suffered a “spiral fracture” of her femur. A physician described such fractures as “incredibly painful,” and the child required morphine to control her discomfort. She was placed in traction and underwent surgery to place titanium rods in her leg. The surgery resulted in lifelong scars. The victim was in a cast for several weeks, and used a wheelchair and a walker during her recovery. She regained the full use of her leg in five to eight months, but had to repeat kindergarten as a result of missing so much school.
You can vote on the answer below. Once you have voted, read on to see how the court of appeals viewed these two scenarios.
The Fourth Amendment states in part that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The reference to a particular description of the place to be searched and the things to be seized is called the particularity requirement. As it pertains to the things to be seized, the Supreme Court’s most famous exposition of the requirement is in Marron v. United States, 275 U.S. 192 (1927), where it opined that the requirement “makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”
In practice, officers regularly seek search warrants with catchall provisions. For example, in a drug case, an officer may seek authorization to seize drugs, paraphernalia, customer lists, and “any and all other evidence connected to drug activity.” Are catchall statements like these consistent with the particularity requirement? Continue reading →
Shea blogged last week about State v. Terrell, a case in which the defendant’s girlfriend saw on one of the defendant’s USB drives an “image of [the girlfriend’s] nine-year-old granddaughter sleeping without a shirt.” She called the police, and an officer found additional images of “partially or fully nude minors” on the drive. The officer sought and obtained a search warrant that led to the discovery of child pornography. Shea’s post, and the case itself, focused on the officer’s initial warrantless search and whether it was justified under the private search doctrine. But the court’s recitation of the facts reminded me of another common issue in child pornography cases: how much information about an image must an officer provide in order to establish probable cause that the image constitutes child pornography? Continue reading →
In 1985, Anthony Wyrick sexually assaulted two teenage girls in Charlotte. The police collected semen and other biological evidence but DNA testing was not available at that time and the crime went unsolved. Almost 30 years later, the case came to the attention of the Charlotte-Mecklenburg Police Department’s sexual assault cold case unit. Officers submitted the biological evidence for DNA testing. The results pointed to Wyrick, who lived near the scene of the crime in 1985 and who had since been convicted of an unrelated second-degree rape. Wyrick was eventually arrested, charged, and convicted. His conviction was affirmed last month in State v. Wyrick, which I how I learned of the case. Reading it got me wondering about the status of what is popularly known as the rape kit backlog. Continue reading →