Jeff Welty

Welcome, Joe Hyde!

I am pleased to announce that Joe Hyde has joined our faculty. He will be working in the area of criminal law, especially as it relates to prosecutors. We hope he will post on this blog and expect that he will take the lead on maintaining NCPRO, our online resource for prosecutors. Joe will also … Read more

Does a Dirty Trash Pull Provide Probable Cause to Search a Residence?

The Supreme Court of the United States has held that trash left for collection at the curb is not subject to a reasonable expectation of privacy and therefore may be searched by the police without a warrant. See California v. Greenwood, 486 U.S. 35 (1988). So-called “trash pulls” are now a routine feature of drug investigations. When officers find drugs, drug residue, drug paraphernalia, or other indicia of drug activity in the trash, does that provide probable cause to support the issuance of a search warrant for the associated residence?

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News Roundup

As I write this, Theranos founder Elizabeth Holmes is in federal court in San Francisco for sentencing. She was convicted of defrauding investors and owes restitution of more than $100 million. She could potentially be sentenced to up to 20 years in prison, and given the loss amount, federal prosecutors have asked for a 15-year sentence. Holmes is asking for house arrest, and has submitted letters from Senator Corey Booker and over 100 other people in support of her compassion and character. Plus one of the letters says that she’s pregnant, and another says that her dog was “carried away by a mountain lion” from her front porch. The Verge has some highlights and a link to her sentencing memorandum here. Keep reading for more news.

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Quick Post-Bruen Update on the Constitutionality of Gun Laws

Earlier this year, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022), holding that New York could not constitutionally require residents to show a special need (beyond the general concerns about self-defense that any person might have) in order to obtain a permit to carry a handgun outside the home. I wrote a detailed summary of the case in this prior post. North Carolina doesn’t require any such showing, so the direct impact on our state was minimal.

However, Bruen’s holding arose from a new interpretive approach. The Court rejected the intermediate scrutiny test most lower tribunals had used when analyzing gun laws and replaced it with a historical analysis in which a limit on gun rights is constitutional only if it is “consistent with the Nation’s historical tradition of firearm regulation.” Lower courts have now begun to apply this framework to assess the constitutionality of various gun laws. The early returns suggest that Bruen’s impact may be substantial across a wide range of federal and state gun laws.

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News Roundup

The election this week had some notable results. Republicans swept the races for appellate judgeships, shifting the state supreme court from majority Democrat to majority Republican. In Columbus County, Jody Greene was elected sheriff just weeks after resigning the same office. He resigned after District Attorney Jon David filed a petition seeking to remove him based in part on racially-charged comments he made during a recorded phone call. This local story indicates that District Attorney David is planning to file a new removal petition against Sheriff-elect Greene. A similar pattern nearly played out in Franklin County, where former clerk of court Patricia Chastain, who had been removed from office by a superior court judge, narrowly lost her bid to be elected back to the same position. This pre-election story has the details. Keep reading for more news.

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Must a Vehicle Be Located in a PVA to Be Searched Without a Warrant?

In State v. Parker, __ N.C. App. __, __ S.E.2d __, 2022 WL 4850255 (Oct. 4, 2022), the Court of Appeals considered the warrantless search of a vehicle that took place at a gas station. The court upheld the legality of the search based on probable cause that the vehicle contained evidence of drug activity. In the course of its opinion, the court stated that “the automobile exception [to the warrant requirement] . . . requires that the vehicle be in a public vehicular area.” Is that right?

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News Roundup

A few weeks ago, I mentioned that a Florida jury divided on the proper sentence for Parkland shooter Nikolas Cruz, with the result that he was to receive a sentence of life without parole. The formal sentencing hearing took place this week, and while the outcome was a foregone conclusion, many surviving victims and relatives of deceased victims addressed the court – and the defendant. Their words were sometimes raw and angry, and at other times preternaturally compassionate. Excepts from their statements appear in a number of stories about the sentencing hearing, including from CNN and the Associated Press.

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The Civilianization of Law Enforcement

Law enforcement agencies are having difficulty recruiting and retaining sworn officers. The situation is “a crisis for law enforcement,” according to the International Association of Chiefs of Police. This local article highlights some of the numbers here in North Carolina. At the time it was written, the Raleigh Police Department was short 150 officers, Winston-Salem was short 20%, and Asheville was short 41%. The Marshall Project offers a contrary view here, arguing that federal jobs data don’t support the concern, but most law enforcement leaders I’ve talked to recently are profoundly worried about staffing, recruitment, and retention. Can the increased use of civilians to do jobs formerly done by sworn personnel be part of the solution?

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News Roundup

If you’ve been to Walmart lately, you know that there are hardly any cashiers anymore. The retail giant seems intent on getting us all to use its self-checkout kiosks where shoppers scan their own merchandise and bag it too. Pretty much every time I shop there, the kiosk alerts, suggesting that I may have “missed a scan.” I flag down the harried employee who is supposed to be keeping an eye on at least a half-dozen kiosks, and he or she straightens things out. But beware the shopper who actually does miss a scan . . . or perhaps misses several scans. Fox News reports that “[a] Michigan woman is being charged after allegedly stealing items from Walmart by not scanning all of her items at the self-checkout.” I was initially outraged on behalf of Walmart shoppers everywhere, though my outrage diminished significantly upon reading that surveillance footage allegedly shows the shopper in question failing to scan over $1000 in goods over a period of months. Keep reading for more news.

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When an Officer Threatens to Seek a Search Warrant if a Suspect Doesn’t Consent to a Search, Is the Suspect’s Subsequent Consent Rendered Involuntary?

Suppose an officer is investigating a report of drug sales at a home. The officer sends an informant in to make a controlled buy from the suspected dealer. The informant comes out of the house with drugs and a report that the dealer has a large additional quantity of illicit substances remaining in the house. The officer decides that it would be a good time to bust the dealer, so the officer approaches the home, knocks on the door, and the dealer answers. The officer explains the situation and says, “I’m asking for consent to search your house. If you don’t consent, I’ll go apply for a search warrant because I think I have probable cause. So, can I search?” The dealer says yes, but later argues that his consent was not voluntary and that he merely acquiesced given the threat of the warrant. What’s the law?

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