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?
Jeff Welty
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.
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?
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.
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?
News Roundup
Steve Bannon, former aide to President Trump, faces sentencing today on two misdemeanor counts of contempt of Congress. The charges arise from his failure to respond to a subpoena from the House Select Committee to Investigate the January 6th Attack on the United States Capitol. There are two counts because Bannon neither (1) provided documents nor (2) appeared to testify. There are two major issues for the sentencing judge. The first is what sentence to select. As is routine in federal court, a probation officer has filed a report that includes a calculation of the applicable sentencing range under the advisory federal sentencing guidelines. The report concludes that the proper range is 1 to 6 months in prison. The government is asking for 6 months, while Bannon is asking for probation. The second issue is whether to delay the effective date of any sentence pending Bannon’s appeal. The planned appeal concerns whether Bannon should have been allowed to introduce evidence that he relied on the advice of his lawyers in declining to respond to the subpoena and therefore lacked the requisite mens rea for the offense. Pundits seem to believe that the judge may grant a stay pending appeal, but we’ll know for sure shortly. CNN has a primer here. Keep reading for more news.
Is North Carolina a Stop and Identify State Now?
In some states, when an officer conducts an investigative stop, the person stopped is legally required to identify himself or herself. For example, Utah Code § 77-7-15 provides that an officer may “may demand the individual’s name, address, date of birth, and an explanation of the individual’s actions.” Stop and identify statutes were generally deemed constitutional in Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177 (2004), but North Carolina has never adopted one. Did a recent decision by the Court of Appeals turn North Carolina into a “stop and identify” state anyhow?
News Roundup
Last week, President Biden issued this proclamation effectively pardoning “all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana” in violation of federal law, including the laws of Washington, DC. It seems that no one will be released from prison as a result, as no one is in federal prison solely for marijuana possession, and marijuana possession has been permitted under DC law since 2014. However, the US Sentencing Commission’s analysis reveals that over 6,500 US citizens, and over 1,000 legal permanent residents, will have previous federal convictions wiped away under the pardon proclamation. I could not find a similar analysis of the effect of the pardon on DC convictions.
Of course, the vast majority of convictions for marijuana possession take place in state court. Here in North Carolina, there were almost 2,000 convictions for simple possession of a Schedule VI controlled substance last year alone. According to WCNC, Governor Cooper supports President Biden’s issuance of the blanket pardon. The Governor has said that “simple possession of small amounts of marijuana should not be a crime” and that he has “asked [his] lawyers to examine North Carolina law regarding simple possession of marijuana convictions and pardons to determine if there is action we can and should take.” If the Governor does take any action, we will of course cover it here. Read on for more news.
News Roundup
There was a ton of criminal law news this week, but far and away the news item that I found most intriguing was this one about new food offerings at the State Fair. Rattlesnake corn dogs? Sign me up! And by that, I mean sign me up on the list of people who will never in a million years eat a rattlesnake corn dog! As far as actual criminal law news goes, the week’s top stories follow.
Is It Proper to Charge a Person with RDO for Refusing to Open the Door for a Search Warrant?
I was at the magistrates’ fall conference last week when a magistrate asked me whether an occupant of a dwelling could properly be charged with resisting, delaying, or obstructing a public officer (“RDO”) for declining to unlock and open the door for an officer executing a search warrant. At first I thought so, but later became less sure. So I decided to look into it and write about it here.