In a recent interview with Katie Couric, Justice Ginsburg discussed San Francisco 49ers quarterback Colin Kaepernick and his practice of kneeling during the national anthem to protest racial injustice. She described Kaepernick’s conduct as “dumb and disrespectful,” compared it to flag burning, and said “I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it.” Is it OK for a judge to say that?
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News Roundup
Hurricane Matthew hit Eastern North Carolina hard over the weekend. Twenty North Carolinians lost their lives and many communities experienced severe flooding. The Fayetteville Observer has extensive coverage of the aftermath of the storm, including remarkable aerial photographs of flooded Lumberton. Governor McCrory has activated the Hurricane Matthew Relief Fund and the North Carolina Department of Justice is warning residents of areas damaged by the hurricane to be wary of scams in the wake of the storm. A number of courthouses are closed because of the storm and the AOC has a list of closings available here. Best wishes for a speedy recovery from the hurricane; keep reading for more news.
Sentencing Whiteboard: Active Sentences for Aggravated Level One DWI
Today’s post is a return to the Sentencing Whiteboard, this time to explain active sentences for aggravated level one DWI. As Shea and I have discussed in earlier posts (here, here, and here, among others), they are different from other DWI sentences. No parole. No good time. Not cut in half. The video explains why, and describes how typical aggravated level one sentences are administered by the county jails through the Statewide Misdemeanant Confinement Program. As you’ll see, sentences for this most serious level of misdemeanor impaired driving are in many cases longer than a felony habitual DWI. I hope you’ll take a look.
Drug Users, Drug Sellers, and Probable Cause
Here’s a common fact pattern: Officers find a person in possession of drugs. The officers say, in effect, “we won’t arrest you if you’ll tell us who sold you the drugs.” The person then reports having recently purchased the drugs from a particular person at that person’s home. Does this provide probable cause to support a search warrant for the supplier’s home?
What Constitutes Valid Consent When One Co-Occupant Consents and the Other Co-Occupant Does Not?
Generally, officers may obtain a valid consent to search only from a person whose reasonable expectation of privacy may be invaded by the proposed search. Sometimes two or more people—for example, spouses or roommates—share a reasonable expectation of privacy in the same place. Generally, either person may give valid consent to an officer. United States v. Matlock, 415 U.S. 164 (1974) (common authority over premises found). However, as discussed below, an exception to this general rule may exist when a physically-present occupant objects.
News Roundup
Reuters reported this week that Yahoo “secretly built a custom software program to search all of its customers’ incoming emails for specific information provided by U.S. intelligence officials.” Reuters says that the government sent Yahoo a classified request to search the email accounts, likely under the authority of the Foreign Intelligence Surveillance Act. The scope of the surveillance is unprecedented and involved “hundreds of millions of Yahoo Mail accounts.” The revelation comes just a month after the company announced that state-sponsored hackers stole information from 500 million Yahoo accounts in 2014. Change those passwords and keep reading for more news.
North Carolina’s Voting Restriction for Felons
Almost all states place some limitation on felons’ right to vote. Those limitations—which can be traced from ancient political traditions of “civil death” for certain crimes to more recent history in the post-Reconstruction United States—vary widely from state to state. They are sometimes controversial. For example, litigation involving Virginia’s restriction was mentioned in the July 29 News Roundup, with a follow-up on the ensuing executive action from the Washington Post here. Politics aside, today’s post covers some of the technical contours of North Carolina’s voting law for felons.
Probable Cause and Search Warrants for Cell Phones
Law enforcement officers often seek search warrants for suspects’ cell phones. When they do, judicial officials must determine what sort of evidence is needed to support the issuance of a warrant. Many people have their phones with them at all times, and use their phones to document and discuss every aspect of their daily activities. Does that mean that when an officer has probable cause to believe that a suspect committed a crime, the officer automatically has probable cause to search the suspect’s cell phone for evidence of the crime? Or does the officer need a more specific nexus between the crime and the phone?
News Roundup
The officer-involved shooting of Keith Lamont Scott and the associated protests in Charlotte continue to be in the local and national news. Mecklenburg County Public Defender Kevin Tully gave his view on the unrest in Charlotte late last week on NPR’s All Things Considered. The Charlotte Observer reports that the Charlotte Police Department has announced that it will “reverse course and be more open about releasing videos of police shootings to victims’ families and the public.” The move comes after the department was reluctant to release footage of the Scott shooting in the days immediately following the incident. The Observer report notes that a new state law regarding law enforcement recordings, S.L. 2016-88, goes into effect on Saturday. As the Observer reports, the new law is generating controversy; some say it reduces law enforcement transparency and accountability while others view it as an improvement over the current patchwork of local policies regarding recordings. Keep reading for more news.