Recent blog posts - 154 of 396

The United States Supreme Court granted certiorari a few weeks ago to consider whether a state statute authorizing the withdrawal of blood from an unconscious driver suspected of impaired driving provides an exception to the Fourth Amendment warrant requirement. The case, Mitchell v. Wisconsin, arose in Wisconsin, but the issue may sound familiar to practitioners in North Carolina.  Our state supreme court held in State v. Romano, 369 N.C. 678 (2017) (discussed here) that the warrantless withdrawal of blood from an unconscious DWI suspect pursuant to state statute when there was no exigency violated the Fourth Amendment. The Supreme Court of Wisconsin reached a different conclusion in Mitchell. The case provides the United States Supreme Court with an opportunity to tie up the ends it left loose in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016) by clarifying how implied consent laws authorizing blood draws without a suspect’s consent do or do not comport with the Fourth Amendment.

Many readers will by now have heard the news: Chief Justice Martin is stepping down to become the Dean of the Regent School of Law, a Christian law school in Virginia. This post looks back at his criminal justice legacy, and forward at the future of the court.

The ongoing federal government shutdown, now the longest in United States history, is undermining the FBI’s ability to protect the country from criminals and terrorists according to a report released this week by the FBI Agents Association.  Entitled “Voices from the Field,” the report contains stories from agents across the country that detail the effect of the shutdown on the FBI’s work.  Like other federal workers, agents currently are working without pay.  The president of the Agents Association, Thomas O’Connor, appeared on the NewsHour on Tuesday to discuss the report.  Keep reading for more news.

The North Carolina Sentencing and Policy Advisory Commission has just published its annual Structured Sentencing Statistical Report for Felonies and Misdemeanors. Today’s post covers some highlights from the report.

When law enforcement officers execute a search warrant authorizing the search of a private residence, they may detain, while the search is carried out, any occupant they discover on the premises. Michigan v. Summers, 452 U.S. 692 (1981). Officers do not need individualized suspicion that such a person is engaged in criminal activity justify his or her detention. The person’s mere presence on the premises subject to the search is sufficient to justify the seizure under this categorical rule. Muehler v. Mena, 544 U.S. 93 (2005).

If a person leaves the immediate vicinity of the premises just before officers execute the warrant, the person may not be detained based on the search warrant alone. Instead, any such detention must be supported by reasonable suspicion that criminal activity is afoot. Bailey v. United States, 568 U.S. 186 (2013).

But what about a person who approaches a house while a warrant is being executed? Is that person an occupant who may be detained without particularized suspicion? The North Carolina Supreme Court recently considered that question in State v. Wilson, ___ N.C. ___, 821 S.E.2d 811 (2018).

 Last week the Court of Appeals breathed new life into a decades-old law that requires district courts to refer juveniles who have been adjudicated delinquent, prior to disposition, to the area mental health, developmental disabilities, and substance abuse services director for an interdisciplinary evaluation if any evidence that the juvenile is mentally ill has been presented. This new decision, In the Matter of E.M., __ N.C.App. __ (January 15, 2019), raises many questions like, does it really mean any evidence of mental illness? And does it matter if the juvenile has already received mental health services? And who is the area mental health, developmental disabilities, and substance abuse services director anyways?

As the Asheville Citizen-Times reports, Wanda Greene pleaded guilty this week to several federal criminal offenses arising from her corrupt activity while serving as Buncombe County Manager.  With the plea, Greene joins her conspirators and former assistant county managers Jon Creighton and Mandy Stone, as well as her son Michael Greene, in awaiting sentencing for their crimes.  As the News Roundup has noted previously, Creighton, Stone, and the Greene’s participated to varying degrees in a range of corrupt schemes including accepting bribes in exchange for awarding county contracts and misusing county funds for their personal benefit.  Keep reading for more news.

I’m happy to announce the availability of a new School of Government publication, Probation Violations in North Carolina.

A few short years ago, a criminal law practitioner could be forgiven for not knowing what a presentment was—much less how it might properly be utilized. Presentments rarely preceded indictments before 2016. But after the court of appeals held in State v. Turner, ___ N.C. App. ___, 793 S.E.2d 287, 290 (2016), reversed, ___ N.C. ___, 817 S.E.2d 173 (2018), that citations and magistrate’s orders did not toll the two-year statute of limitations for misdemeanors, presentments in impaired driving cases proliferated. By obtaining a presentment from a grand jury, followed by an indictment, the State could ensure the statute of limitations was tolled. That, in turn, eliminated any requirement that the charges be resolved by trial or plea within two years of the date of the alleged offense. Though Turner was reversed by the state supreme court in 2018, the rising use of presentments following the court of appeals’ decision led to increased scrutiny of the procedure.

Some questioned whether a so-called presentment drafted by a district attorney and presented to a grand jury simultaneously with an indictment really was a presentment within the meaning of the state constitution and the criminal procedure act. Last December, the court of appeals in State v. Baker, ___ N.C. App. ___ (2018), considered this argument and weighed in on the proper use of presentments.

Last week I had the pleasure of hosting around 40 attorneys for the second part of a new course, Higher Level Felony Defense. The first part, held in early 2018, focused primarily on preparing a case for trial. We also included a deep dive into jury selection. This second part focused on common issues in serious felony cases as well on sentencing advocacy. As a new program, I’m sure it will evolve, but I thought the first iteration was promising and wanted to talk briefly about the program and our goals.