Search and Seizure

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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.

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Case Summaries: Fourth Circuit Court of Appeals – February, 2020

This post summarizes published criminal decisions from the Fourth Circuit Court of Appeals in February, 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.

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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.

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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).

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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.

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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.

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Shooting an Officer the Bird

Editor’s note: The opinion analyzed in this post was withdrawn shortly after publication and replaced with this opinion reaching the same outcome.

Last week, in State v. Ellis, __ N.C. App. __, __ S.E.2d __, 2019 WL 3559644 (N.C. Ct. App. Aug. 6, 2019), a divided panel of the court of appeals held that a trooper properly stopped a vehicle “after witnessing . . . a passenger in [the] vehicle . . . extend his middle finger in the trooper’s general direction.” The majority acknowledged that “there are a number of decisions from courts across the country [holding] that one cannot be held criminally liable for simply raising his middle finger at an officer.” Yet it ruled that the defendant’s conduct provided reasonable suspicion of criminal activity, namely, disorderly conduct. See generally G.S. 14-288.4(a)(2) (making it unlawful to make a gesture “intended and plainly likely to provoke violent retaliation”). Let’s take a closer look at Ellis.

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Pole Cameras after Carpenter

I recently traveled to New York City to do some sight-seeing. I noticed that I wasn’t the only one doing the looking. The New York Police Department has mounted security cameras on poles all over Manhattan. They are well-marked and conspicuous. Seeing them made me wonder about challenges to this kind of surveillance in light of the Supreme Court’s decision two terms ago in Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018), holding that a person has a legitimate expectation of privacy in the record of his or her physical movements as captured through cell-site location information (CSLI). The court based its opinion in part on a person’s reasonable expectation that law enforcement will not constantly surveil his physical movements. Though video recorded by a law enforcement camera differs from CSLI in its scope and in the type of information collected, some have argued that the privacy interests identified in Carpenter also are implicated by the government’s use of pole-mounted surveillance cameras.

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