This post summarizes published criminal and related decisions from the Fourth Circuit Court of Appeals in March, 2020. Decisions of interest to state practitioners will be posted on a monthly basis. Previous summaries of Fourth Circuit criminal and related decisions can be found here.
Search and Seizure
Stay-At-Home Orders, Charges, and Stops
The Governor ordered individuals in North Carolina to stay at home and non-essential business operations to cease beginning at 5 p.m. Monday, March 30, 2020. The order, Executive Order No. 121, remains in effect for thirty days from that date. Here are a few things to know about the order and its enforcement.
Proms and PBTs
Spring is only a few weeks away. Soon preparation will begin for the rites of the season, among them pruning, planting, and, of course, prom.
A few weeks ago, I chaperoned a dance at my son’s high school. (I elected not to tell him that I was chaperoning, so you can imagine his reaction when he saw me there. For more about that, please check out my parenting blog.) When I walked into the gymnasium, I saw tables laden with dozens of bright yellow flashlight-shaped devices. The school had not stockpiled flashlights for gazing into dark corners. Instead, these were portable breath testing instruments awaiting samples of air drawn from the deep lungs of teenagers. Every student seeking admission to the dance was required to submit a breath sample. Only students who registered no alcohol concentration were eligible to attend the dance.
After the dance, someone asked me whether it was lawful for a school to require students to submit to a breath test before admitting them to a school function. My answer? Yes. My reasoning? See below.
Does Miranda Apply When Defendant’s Lawyer is Present?
If you type “miranda” into the search box on this blog, it will return more than 50 posts covering a wide range of related topics: the meaning of custody, deficient warnings, knowing and voluntary waivers, ambiguous assertion of rights, special rules for juveniles, readvising and reinterviewing, public safety exceptions, and many, many others.
But I was stumped recently by a deceptively simple question that I had not heard before, and did not come up in those results: what if the defendant’s lawyer is present? Does an in-custody defendant still have to be advised of his Miranda rights before he can be questioned by police?
I did some digging, and the case law on this issue genuinely surprised me.
Criminal Cases to Watch in the Supreme Court’s 2019 Term
The United States Supreme Court’s 2019 term is well underway, and several criminal law cases are on the docket. Listed below are the principal criminal law cases currently before the court, with a link to the docket entry for each case, followed by the Questions Presented.
Carts, Wax, and Oh, My: The New World of Marijuana Extracts
The advent of cannabis legalization across the country has led to a proliferation of new types of cannabis products. There are skin patches, food and drinks (for humans and pets), vaporizer or “vape” cartridges (or “carts”), and different concentrate or extract products (“dabs”, “wax” or “shatter”, among other names). [Click that last link and scroll down to see a chart listing the different forms of extracts and their names.] The products can be made from lawful hemp, or from illegal marijuana alike. The illegal versions have found their way into North Carolina, and questions abound regarding how to handle these cases. The questions most commonly involve wax and cartridges, so this post takes a look at the issues surrounding those cases (leaving the skin patches and edibles for another day).
Case Summaries–Fourth Circuit Court of Appeals (Oct. 2019)
This post summarizes published decisions from the Fourth Circuit Court of Appeals that may be of interest to state criminal practitioners from October, 2019.
NC Supreme Court Weighs in on State v. Terrell and Private Search Doctrine
The North Carolina Supreme Court held in State v. Terrell, __ N.C. __ (Aug. 16, 2019), that a private party’s limited search of a defendant’s thumb drive did not frustrate the defendant’s legitimate expectation of privacy in the entire contents of the electronic storage device. The detective who searched on the heels of the private party could not be virtually certain that he would find nothing else of significance on the device or that his search would do no more than corroborate what the private searcher had told him. Thus, the court concluded that the detective could not lawfully search additional folders on the thumb drive without a warrant after the private party turned the device over to law enforcement.
When a Person Sells Drugs Away from His or Her Home, Does that Provide Probable Cause to Search the Person’s Home?
The question in the title of this post is an oversimplified version of the issue addressed by the court of appeals last week in State v. Bailey, __ N.C. App. __, __ S.E.2d __, 2019 WL 3925864 (Aug. 20, 2019). But it isn’t oversimplified by much, and the appellate division may be inching closer to answering the question in the affirmative.