Articles in the Search and Seizure category - Page 18 of 45

May an officer, during a traffic stop, order an occupant out of the stopped vehicle? Into the officer’s vehicle? The law on this question has become unsettled.

Do the following facts provide probable cause to arrest for impaired driving?

An officer pulls behind a vehicle at a stoplight around 3 a.m. and sees that its registration is expired.  He activates his blue lights, and the defendant turns into a nearby parking lot. When the officer approaches the car, the defendant tells him that his license is revoked for DWI.  The officer smells a medium odor of alcohol coming from the defendant’s breath and sees that the defendant’s eyes are red and glassy. The officer performs an HGN test, noting 5 of 6 indicators of impairment. The defendant tells the officer that he had three beers at 6 p.m. the previous evening. 

The court of appeals answered this question earlier this week in State v. Lindsey, ___ N.C. App.  ___ (2016).  Its answer, and the outcome of the case, may surprise you.

May an officer search a motor vehicle based on the officer’s detection of the odor of marijuana coming from the vehicle? May the officer search the occupants of the vehicle? Several recent cases address these questions.

The Fourth Amendment’s exclusionary rule generally bars the introduction of evidence seized in violation of its provisions. State constitutions, statutes, and rules also may bar the introduction of evidence even when the Fourth Amendment’s exclusionary rule does not.

The preparation and service of an inventory of items taken during the execution of a search warrant is not likely a Fourth Amendment requirement, and thus the exclusionary rule would be inapplicable to inventory issues. Cf. State v. Dobbins, 306 N.C. 342 (1982) (a search warrant’s return not being sworn was not a constitutional violation).

On the other hand, G.S. 15A-974 bars under some circumstances the introduction of evidence obtained in violation of Chapter 15A of the General Statutes. Evidence is to be excluded if: (1) it is obtained as a result of a “substantial” violation of Chapter 15A, and (2) the officer committing the violation did not act under an objectively reasonable good faith belief that his or her actions were lawful.

Last week, the North Carolina Court of Appeals in State v. Downey (September 6, 2016) considered a defendant’s argument that G.S. 15A-974 should have barred evidence seized pursuant to a search warrant because an officer allegedly did not comply with G.S. 15A-254, which essentially requires the completion an inventory of seized items and leaving a copy in the manner set out in the statute. The Downey ruling is the topic of this post.

True or False:  An officer does not have to be qualified as an expert to testify about horizontal gaze nystagmus in a hearing on a motion to suppress in an impaired driving case.

The United States Supreme Court has stated that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” and that “searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. United States, 445 U.S. 573, 585-86 (1980). So in an ordinary case officers will need an arrest warrant to enter a person’s house to make an arrest of the resident or a search warrant to search for and seize property there. There are a few exceptions to the warrant requirement: (1) obtaining consent to enter from an appropriate person, (2) probable cause and exigent circumstances, (3) making a protective sweep of a home for dangerous people when an officer is there to make an arrest, (4) entering a home to seize weapons for self-protection, and (5) entering a home to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. See generally Arrest, Search, and Investigation in North Carolina (4th ed. 2011) at pages 66-73 (entering premises to arrest), 217-18 (probable cause and exigent circumstances), 232-33 (entry or search of home to render emergency assistance or for self-protection). A new edition of this book will be available this coming winter, possibly as soon as December 2016.

The existence of probable cause to search a vehicle and probable cause to search a vehicle occupant based on an odor of marijuana emanating from a vehicle present separate legal issues. The North Carolina Court of Appeals on August 2, 2016, ruled in State v. Pigford that although an officer had probable cause to search a vehicle, he did not have probable cause to search a vehicle occupant based on the marijuana odor. However, another theory mentioned by the court may ultimately support the admission of the illegally-seized evidence at the retrial of the case.

The court of appeals reversed a defendant’s DWI conviction yesterday in State v. Ashworth, __ N.C. App. __ (August 2, 2016), on the basis that the trial court plainly erred in holding that the driver’s license checkpoint at which the defendant was stopped was appropriately tailored and advanced the public interest. Unlike some checkpoint cases in which you can see the trouble coming in the recitation of facts, Ashworth is a pretty routine checkpoint case. Two officers with the State Highway Patrol set up the checkpoint to look for driver’s license and other traffic violations. The highway patrol had a checkpoint policy that the officers followed. A supervisor approved the checkpoint. The defendant admitted that he had been drinking almost immediately after he stopped at the checkpoint. So where did the trial court go wrong?

Generally, custody occurs under Miranda when a suspect is handcuffed even if the suspect is not informed that he or she is under arrest for a crime. However, there are exceptions, as evidenced by the recent North Carolina Court of Appeals ruling in State v. Barnes (July 19, 2016), which is the subject of this post.

By now, most court actors are familiar with the United States Supreme Court’s holding in Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (April 21, 2015) (discussed in a prior post) that a law enforcement officer may not extend a traffic stop to investigate matters unrelated to the mission for the stop–that is, to address the traffic violation that warranted the stop and attend to related safety concerns–unless the extension is supported by reasonable suspicion. Defense attorneys and other court actors were curious to see how North Carolina appellate courts would analyze this significant new limitation on the scope of traffic stops.