A decade ago, I wrote a post about the circumstances under which police may stop a person who is carrying a gun openly. A lot has changed since then. The Supreme Court has strengthened the Second Amendment in New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022). The General Assembly has eliminated the requirement that North Carolina residents obtain a permit before buying a handgun. See S.L. 2023-8. And empirical scholarship suggests that many more Americans are carrying guns on a daily basis. See Ali Awhani-Robar et al., Trend in Loaded Handgun Carrying Among Adult Handgun Owners in the United States, 2015-2019, Am. J. Pub. Health (2022) (finding that in 2019, “approximately 6 million [gun owners carried] daily,” which was “twice the 3 million who did so in 2015”). So it is a good time to revisit the question. Continue reading
Category Archives: Search and Seizure
Open Carry and Reasonable Suspicion
Last week, in Part I of this series, I discussed whether having a drug dog sniff a vehicle is a search if the drug dog might alert upon smelling hemp, a substance that is legal to possess. Today’s post focuses on what may be an even more significant question: if a dog alerts, does the alert provide probable cause to search? Continue reading →
Hemp and hemp products are now legal under state and federal law. Hemp is the same plant as marijuana and contains the same chemical compounds, though in different concentrations. Could a drug dog trained to detect marijuana alert on legal hemp? If so, does that impact whether a dog sniff is a search under the Fourth Amendment? And does it mean that a drug dog’s alert no longer provides probable cause to search a vehicle? This two-part series tackles those questions. Continue reading →
May an Officer Stop a Car to Serve an Occupant with a Subpoena or Other Civil Process?
Suppose that Victor Victim was the victim of a non-fatal shooting. Law enforcement has charged Dan Defendant with the crime, but Victor is not enthusiastic about testifying against Dan and has not cooperated with the police and the prosecutor in the run-up to the trial. The State has issued a subpoena to compel Victor’s attendance. Olga Officer is out looking for Victor when she sees him driving by. May Olga stop Victor’s car in order to serve him with the subpoena? Continue reading →
A Refresher on North Carolina’s Needle Exchange Law and Other Harm Reduction Immunities
In response to the opioid crisis, North Carolina passed several protections designed to alleviate some of the legal liability surrounding drug use in the interest of harm reduction and public health. One of those protections authorized needle exchange programs (alternatively known as safe syringes programs). G.S. 90-113.27. A recent study examined how the needle exchange program is working in seven North Carolina counties and found that the law was not consistently applied. Brandon Morrison et al., “They Don’t Go by the Law Around Here”: Law Enforcement Interactions After the Legalization of Syringe Services Programs in North Carolina, vol. 19, Harm Reduction Journal, 106 (Sept. 27, 2022). Considering the study’s findings, I thought a refresher on the immunity provisions for syringe exchanges and similar protections would be timely. Read on for the details. Continue reading →
New Paper on No-Knock Warrants
I recently finished a paper on the law and practice of no-knock warrants in North Carolina. I went with the creative title, The Law and Practice of No-Knock Search Warrants in North Carolina. You can access the paper here. To give you a sense of the contents, here’s a paragraph from the introduction that notes some of the takeaways:
This bulletin takes a deep dive into the law and practice regarding no-knock warrants in North Carolina. Among the conclusions are: (1) there is no explicit authority for North Carolina judicial officials to issue no-knock warrants; (2) judicial officials sometimes issue such warrants anyway; (3) no-knock warrants seem to be very rare; (4) when an application for a no-knock warrant is granted, the resulting warrant does not always include an express judicial determination regarding the need for a no-knock entry or an express judicial authorization of such an entry; and (5) quick-knock entries, where officers knock and announce their presence and then immediately force entry, may be widespread.
Lots of other people made this paper possible, including practicioners who talked about their experiences with me, academics who wrote about this general topic in other jurisdictions, and clerks of court who pointed me in the right direction and let me look through many, many search warrants. My colleagues here at the School of Government provided helpful comments and valuable editing. Others too numerous to mention helped in various ways. I hope that the paper is useful and welcome feedback on it.
State v. Eagle: Blue Lights and Impeded Egress Equal a Fourth Amendment Seizure
The North Carolina Court of Appeals in State v. Eagle, 2022-NCCOA-680, ___ N.C. App. ___, 879 S.E.2d 377 (2022), considered whether the driver of a car that had already stopped when a patrol officer pulled in behind it with blue lights activated was seized within the meaning of the Fourth Amendment. The trial court had ruled that the driver was not immediately seized by the officer in this encounter. Instead, the court ruled that a seizure occurred only when the officer took Ms. Eagle’s driver’s license and returned to her patrol car. By this point, the officer had developed reasonable suspicion to believe Ms. Eagle was impaired. The Court of Appeals reversed, determining that Eagle was seized at the outset of this encounter. This post discusses State v. Eagle and its relationship to other recent seizure jurisprudence. Continue reading →
This post summarizes criminal and related decisions published by the Fourth Circuit Court of Appeals during November 2022. Cases of interest to state practitioners are summarized monthly. Previous Fourth Circuit case summaries are available here. Continue reading →
Shea posted here about a 2019 opinion from the Sixth Circuit holding that chalking tires for purposes of parking enforcement was a Fourth Amendment search and rejecting at least some of the proposed legal justifications for the practice. That case led to some further proceedings and eventually to a new opinion, Taylor v. City of Saginaw, Michigan, 11 F.4th 483 (6th Cir. 2021), holding that the suspicionless chalking of tires (1) is a search, (2) is not justified as a community caretaking function, and (3) is not justified as an administrative search. The Taylor court ruled that the law was not previously clearly established, so the parking officer whose conduct was at issue was entitled to qualified immunity. But going forward, warrantless tire chalking is a no-no in the Sixth Circuit. Now another circuit has weighed in with a different perspective. Continue reading →
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? Continue reading →