In preparation for some upcoming teaching, I’ve been brushing up on anticipatory search warrants. Such warrants authorize a search, but only once a “triggering condition” takes place. The most common scenario involves the controlled delivery of drugs that have been intercepted in transit. The warrant authorizes the search of the destination residence, but only once the drugs have been delivered. Case law establishes that a warrant may issue only if the drugs are on a “sure course” towards delivery. This post asks why – and whether – that should be the case.
Jeff Welty
Removing State Criminal Charges to Federal Court
Every law student learns that state civil cases may be “removed” to federal court under certain conditions – usually when the case presents a question of federal law, or the parties are residents of different states. See 28 U.S.C. § 1446. But until recently, I had never heard of a state criminal case being removed to federal court. Former President Trump and several members of his administration have requested exactly that, and there are federal statutes that allow for it under limited circumstances. This post digs a little more deeply into the removal of criminal cases.
News Roundup
Yesterday, former President Trump turned himself in at the Fulton County jail in Atlanta to be booked on criminal charges related to his alleged efforts to interfere with and overturn the results of the 2020 presidential election. President Trump was in and out of the jail in 20 minutes, during which time he had a mug shot taken. He posted the mug shot on X (formerly Twitter), returning to the platform for the first time in two years. He characterized the prosecutor who brought the charges as a “Radical Left, Lowlife District Attorney.” NBC News has the basics here. I’ll have some more information about some interesting legal issues in the case on Monday. For now, keep reading for more news.
Officer Discretion and Failure to Discharge Duties under G.S. 14-230
Law enforcement officers can’t cite every jaywalker, stop every speeder, and arrest every underage drinker, nor would most people want them to do so. Wisely exercising discretion is an important part of an officer’s work. At the same time, North Carolina has a statute that makes it a crime for an officer willfully to fail to discharge his or her duties. That statute has occasionally been used to prosecute officers who chose not to enforce criminal laws. This post considers the extent to which the statute constrains an officer’s discretion.
News Roundup
Hunter Biden has been the focus of journalistic, criminal, and political investigations for years as a result of questionable overseas business dealings and other alleged misconduct. Earlier this week, he apparently planned to put an end to his legal limbo by (1) pleading guilty in federal court to two misdemeanor counts of failure to pay taxes on over $1.5 million in income, and (2) entering into a two-year diversion agreement that would potentially result in his nonprosecution for a felony charge of possessing a firearm while being a drug user. The plea agreement also contained promises by the government not to prosecute Biden for certain other conduct and to recommend probation for the tax offenses. Although the prosecution was under the supervision of a Trump-appointed United States Attorney, critics saw the agreement as a sweetheart deal tainted by political interference. The Heritage Foundation and at least one member of Congress submitted filings to the court asking the judge not to accept the plea. And on Wednesday, Judge Maryellen Noreika did just that, expressing concern about the scope of the nonprosecution agreement and how Biden’s compliance with the deferral would be determined. The parties are apparently regrouping and attempting to reach a new agreement that the judge will accept. Meanwhile, Republicans in Congress are keen to hold hearings on the whole mess. Reuters has the basics here and CNN has some pertinent documents here. Keep reading for more news.
Illinois Supreme Court Upholds Legislative Abolition of Cash Bail
On my drive home yesterday, I heard a news story on the radio. The report indicated that the Illinois Supreme Court had just upheld a law completely eliminating financial conditions of release in the Prairie State – apparently making it the first state in the country to abolish cash bail. The story didn’t detail the legal arguments at issue in the case, or even who had challenged the law. Given the national interest in bail reform, I thought the Illinois case might be a harbinger of things to come elsewhere, so I looked into it. This post briefly summarizes what I learned.
United States v. Texas and Discretion in Arrest and Prosecution
The Supreme Court just concluded its Term with blockbuster decisions on affirmative action, free speech, and student loan forgiveness. But criminal law practitioners should be aware of a less-ballyhooed case that is significant for its broad pronouncements about the discretion of police and prosecutors. The case is United States v. Texas. This post summarizes the decision and places it in context of the ongoing national debate about discretionary decisions concerning arrest and prosecution.
News Roundup
I am embarrassed to admit that I enjoy the movies in the Fast & Furious franchise. I like exotic cars, which the films have in abundance. And there is something virtuous about Dominic Toretto, the character played by Vin Diesel. A downside of the series is that the films, particularly the early ones, glorify the spectacularly dangerous and irresponsible sport of street racing. Paul Walker, a star of the early movies, died while driving a Porsche at high speeds through the streets of Los Angeles. WRAL reports here that a bill moving quickly through the General Assembly targets street racing and street takeovers in North Carolina. Language has been added to S91 that would criminalize “operat[ing] a motor vehicle in a street takeover” or otherwise participating in or facilitating such an event. Drivers would be guilty of a Class A1 misdemeanor for a first offense and a Class H felony for later crimes. Vehicle seizure would also be possible under the law. Keep reading for more news.
Third Circuit Deems Federal Felon-in-Possession Law Unconstitutional
Earlier this month, the Third Circuit, sitting en banc, found the federal felon-in-possession statute unconstitutional as applied. The decision was based on the new interpretive approach announced in New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). The Third Circuit’s ruling is a massive decision that seems virtually certain to be reviewed by the Supreme Court. Keep reading for more details.
Does an Officer Who Receives a Giglio Letter Have a Right to a Name Clearing Hearing?
In my most recent post, I noted that a law enforcement officer who is fired will sometimes have a right to a “name clearing hearing” at which the officer may supply evidence contradicting negative information about the officer’s honesty or integrity that the agency released in connection with the officer’s termination. I ended that post by asking whether an officer who is fired in connection with a Giglio letter is entitled to such a hearing. Under most circumstances, the answer to that question is no. Keep reading for more details.