Articles in the Procedure category - Page 41 of 77

Defendants who drive while impaired while their licenses are revoked for another impaired driving offense or who drive while impaired without a license and without car insurance risk more than criminal prosecution. The vehicles they drive must be seized, and, if they are convicted, will be ordered forfeited. To speed up the forfeiture process, DWI cases involving vehicle forfeitures must be scheduled within 30 days of the offense. But they rarely, if ever, are. Are defendants entitled to relief when the statutory scheduling directive is ignored?  And can that relief come in the form of the dismissal of criminal charges?

Imagine that someone breaks into your house and steals something. Let’s say it’s a laptop. A week later, you see the laptop in a pawn shop. You want it back, but the shop owner says that he paid $200 for it. Must the shop owner give it back to you for free? Sell it back to you for what he paid for it? Or is he free to sell it to you on whatever terms the two of you negotiate?

A recent conversation reminded me about a question I’ve received several times over the years: On a habitual felon indictment, what should be listed as the offense date? The two main choices are (1) the date of the substantive felony with which the defendant is charged, and (2) the date of the last of the defendant’s previous convictions, i.e., the date that the defendant became a habitual felon.

The facts. A detective with the Charlotte-Mecklenburg Police Department writes a plan for a checkpoint to be conducted later in the evening. The plan states that the checkpoint will be established at the intersection of Ashley Road and Joy Street in Charlotte, NC. The plan states that the checkpoint’s purpose is to increase police presence in the targeted area while checking for driver’s license and vehicle registration violations. The plan further states that all vehicles traveling through the checkpoint must be stopped unless the officer in charge determines that a hazard has developed or an unreasonable delay is occurring. If that situation arises, all vehicles must be allowed to pass through until the hazard or delay is cleared.

The checkpoint is conducted from 12:34 a.m. to 1:52 a.m. on the designated evening. Every vehicle that travels through the checkpoint is stopped, and the officers ask every driver for his or her driver’s license.

The question. A passenger in a car stopped at the checkpoint moves to suppress evidence obtained during the stop and subsequent search of the car, alleging that the checkpoint was unconstitutional.

If you were the court, how would you rule? 

[Author’s Note:  This post has been substantively edited to make corrections in response to helpful comments from readers.]

A person generally may not lawfully be arrested unless there is probable cause to believe he has committed a crime. But there are several exceptions to this rule. Most involve arrests made pursuant to an order for arrest issued by a judicial official. A judicial official may, for example, issue an order for the arrest of a defendant who fails to appear in court or who violates conditions of probation. See G.S. 15A-305(b). And there is one circumstance in which a law enforcement officer may, without a judicial order or warrant for the defendant’s arrest and without probable cause to believe a crime has been committed, arrest a defendant. That’s when the officer has probable cause to believe the defendant has violated a condition of pretrial release. G.S. 15A-401(b)(1),(b)(2)(f.).

The Fourth Amendment protects the home as well as its curtilage, which is defined as the area immediately surrounding the home and associated with it. Recently, the North Carolina Supreme Court in State v. Grice, 2015 WL 304075 (Jan. 23, 2015), was confronted with a Fourth Amendment issue involving the curtilage. The court held, reversing the court of appeals, ___ N.C. App. ___, 733 S.E.2d 354 (2012), that officers who were validly on the curtilage of a residence to conduct a knock and talk did not violate the Fourth Amendment when they saw marijuana plants 15 yards away on the curtilage and warrantlessly seized them.

Myra Lynne Combs beat her DWI charges in court. The trial court held that the officer who stopped her didn’t have a lawful reason to do so. So the trial court suppressed all the evidence resulting from the stop, and the State dismissed the charges. But Combs’ license was revoked for a year anyway based on her refusal to submit to a breath test after she was arrested. Combs didn’t think that was right, so she took her case to the state court of appeals.

On Friday, Attorney General Eric Holder announced major new limits on asset forfeiture. In a nutshell, he put a stop to the federal civil forfeiture of assets seized by state and local law enforcement and “adopted” under the Equitable Sharing program. The details are a little fuzzy, but this may be a very big deal in the world of forfeiture, for reasons I discuss below.

I previously wrote (here) about the U.S. Supreme Court’s recent cert grant in Ohio v. Clark, a case in which the Court will decide whether a three-year-old child’s statements to his preschool teachers are testimonial. Hiding in plain sight in that case is an issue as interesting as the Crawford question that the Court will decide. In Clark, the Ohio Supreme Court held that the child’s statements to his teachers identifying the defendant as the perpetrator were testimonial. It further held that the trial court violated the defendant’s confrontation clause rights when it admitted the child’s out of court statements to his teachers at trial, after finding the child—L.P. —incompetent to testify. L.P. was found to be incompetent six months after uttering the statements at issue.

Most people stopped on suspicion of impaired driving would rather avoid the trip to the police station. Some suspects attempt to dispel officers’ suspicions by answering questions about whether they have been drinking and how much they’ve had to drink.  Others perform field sobriety tests. A few cut right to the chase, demanding that officers transport them immediately to the station for breath testing. That way, the person who is not impaired by alcohol can resolve the encounter without the indignity–and the record–that accompanies arrest.