Things are going full tilt at the General Assembly. One new bill of interest this week would reduce the per se impairment blood alcohol content from .08 to .05. If the bill passes, this 50-state comparison chart suggests that North Carolina would be the second state, after Utah, to adopt the lower limit. The National Highway Traffic Safety Administration reports that Utah’s adoption of the .05 standard has saved lives and recommends that other states follow suit. Keep reading for more news.
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The School of Government Has a New Dean
The School of Government was founded 92 years ago as the Institute of Government. To say that the School has had continuity of leadership would be an understatement. The top job has been held by just four people, three of whom served more than two decades each:
- Albert Coates was the founder of the Institute and served as Director from 1931 to 1962.
- John Sanders served as Director from 1962 to 1973. He stepped away from the Institute to serve the university system from 1973 to 1978, during which time Henry Lewis served as Director. Sanders returned and resumed his role from 1979 to 1992.
- Since 1992, the School has been led by Mike Smith, first as Director of the Institute, and since 2001 as Dean of the School of Government.
Things will change on February 27, when our colleague Aimee Wall – currently the School’s Senior Associate Dean – will become Dean of the School. It is a watershed moment for many reasons, and while I don’t expect any disruptive changes to our work in criminal law, I thought readers would be interested to know of this transition. Below, I’ve pasted the message Chancellor Kevin Guskiewicz and Provost Chris Clemens sent to the University community about Aimee’s appointment.
News Roundup
The legislature is in session and a bill to make the Moravian cookie the official state cookie was introduced this week. According to my admittedly casual research, only a few states have official cookies. The first was New Mexico, which adopted the biscochito/bizcochito as the state cookie in 1989. Judging from this recipe, it seems to be sort of a cinnamon sugar concoction made with brandy. Read on for even more impactful news.
Court of Appeals Affirms Order Dismissing Media Entities’ Petition for Release of Law Enforcement Recordings in Andrew Brown Case
After Andrew Brown, Jr. was shot and killed in Elizabeth City in April 2021 by law enforcement officers who were attempting to serve arrest and search warrants on him, several media entities attempted to obtain law enforcement agency recordings of the events. The companies sought the release of those recordings from the superior court pursuant to G.S. 132-1.4A(g) and filed their request six days after the shooting using a form petition created by the Administrative Office of the Courts, AOC-CV-270. A superior court judge denied the request based on his conclusion that release would create a serious threat to the fair and orderly administration of justice and that there was a need to protect an active internal or criminal investigation. After the Pasquotank County district attorney announced that he would not seek charges related to the incident, the companies filed another petition on form AOC-CV-270 requesting release of the recordings. A different superior court judge dismissed this later petition on the basis that the petitioners were required to file a regular civil action to obtain the release of recordings under G.S. 132-1.4A(g). The media companies appealed, and, in an opinion published last week, the Court of Appeals affirmed the superior court’s ruling. See In re Custodial Law Enforcement Agency Recordings, No. COA22-446, ___ N.C. App. ___ (2023).
The Effect of Legal Hemp on Drug Dog Sniffs (Part II)
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?
News Roundup
Attorney General Josh Stein now appears to be highly unlikely to be charged criminally over a campaign ad he ran in the last election cycle. The ad charged that Stein’s opponent in the 2020 election – Forsyth County District Attorney Jim O’Neill – “left 1,500 rape kits on a shelf leaving rapists on the streets.” O’Neill complained to the State Board of Elections, contending that the ad was false and violated G.S. 163-274(a)(9), which makes it a misdemeanor to “publish . . . derogatory reports with reference to any candidate . . . knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.” The Board recommended taking no action, but Wake County District Attorney Lorrin Freeman asked the SBI to investigate further, and ultimately informed Stein that she was planning to submit the matter to a grand jury. Stein then sued in federal court, asserting inter alia that the statute is unconstitutional and seeking an injunction against Freeman. The district court declined to issue a preliminary injunction, but this week the Fourth Circuit said that it is pretty sure that the statute is unconstitutional and so the district court should reconsider. The main problem with the statute is that it “likely criminalizes at least some truthful speech,” namely, a “derogatory report[]” that is made in “reckless disregard of its truth or falsity” but that turns out to be true. Although the Fourth Circuit did not expressly instruct the district court how to proceed, any path forward for criminal charges now appears to be narrow at best. WRAL has more here. Keep reading for more news.
N.C. Supreme Court Weighs in, Again, on Forfeiture of Counsel
In December, the North Carolina Supreme Court decided State v. Atwell, 2022-NCSC-135, ___ N.C. ___ (2022)—its third time weighing in on the issue of forfeiture of counsel. The defendant had had five court-appointed attorneys when the trial court determined that the defendant was engaging in delay tactics and entered an order of forfeiture. A majority of the Court of Appeals found no error. In reversing this decision, a majority of the Supreme Court concluded that the record did not show that the defendant engaged in the level of conduct sufficient to warrant a finding of forfeiture.
This post discusses State v. Atwell, forfeiture guidelines as set forth by the state Supreme Court, and suggested practices in dealing with forfeiture of counsel issues.
The Effect of Legal Hemp on Drug Dog Sniffs (Part I)
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.
News Roundup
The New York Times story about Tyre Nichols’ funeral is here. Rev. Al Sharpton delivered the principal eulogy, but there were many speakers, including Mr. Nichols’ mother and Vice President Harris. A common theme was a desire to see changes in policing. The Vice President specifically demanded that Congress pass the George Floyd Justice in Policing Act. Relatives of Mr. Floyd, Breonna Taylor, and Eric Garner were among the mourners. Keep reading for more news.
NC Supreme Court Orders Trial Court to Reconsider Gag Order in Greensboro Body Camera Case
The North Carolina Supreme Court held last December in In re Custodial Law Enforcement Recording, 2022-NCSC-125, 881 S.E.2d 96 (2022), that a trial court abused its discretion in denying the City of Greensboro’s motion to modify restrictions imposed on the release of police body camera recordings. The trial court had previously entered an order that allowed members of the Greensboro City Council to view the recordings, but prohibited them from disclosing or discussing their contents to or with others. When the City sought reconsideration of that order on the basis that the restrictions prevented council members from carrying out their duties, the court summarily denied the motion after noting that council members had not “bothered to watch” the video. The Supreme Court determined that the trial court’s failure to consider the City’s reasons for seeking the modification, relying only on council members’ failure to watch the recordings while the restrictions were in place, demonstrated an abuse of discretion.