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Lessons Learned on Vacation: 2016 Edition

Memorial Day weekend isn’t technically the beginning of summer, but it feels like it. Temperatures rise and many families head east toward water on Friday afternoons. That’s what my family did last Friday. Given that I try to stay reasonably informed about the law and I read my local paper, I thought I was well prepared to keep all of us on the beach and out of the slammer through the course of the weekend.

It turns out that there are a lot of rules that responsible adults and parents can break on vacation.  I’m not just talking about bedtime rules and no-ice-cream-before-dinner rules.  I’m talking about the criminal kind—the ones that can land you in jail or at least in a district court down east on a hot Monday morning.  I’ve written about a few of these rules before.  And this recent article in the News and Observer put everyone on notice that children under 16 cannot drive golf carts.  But I’ve recently learned a new rule: You cannot have a mixed drink on the beach.

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News Roundup

As the Baltimore Sun reports, a criminal trial against one of the Baltimore police officers charged in connection with the death of Freddie Gray last year ended this week with the officer, Edward Nero, being acquitted on all charges.  According to the report, Nero’s acquittal on several misdemeanors came after a five-day bench trial that involved a novel theory of assault based on Nero detaining Gray without justification.  The Baltimore Sun also has an opinion piece from former Baltimore police officers that argues that Nero, characterized as having only a tangential role in the incident that culminated in Gray’s death, should not have been criminally charged.  Cases against other officers facing more serious charges are scheduled to be tried in the future.  Keep reading for more news.    

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A political science professor, a civil rights lawyer and a police chief walk into a classroom . . .

I haven’t figured out the punch line to this joke. It was my opening line for a traffic stops session taught last month in the special topics seminar, Race Issues in the Courts, by UNC Professor Frank Baumgartner, Southern Coalition for Social Justice Staff Attorney Ian Mance, and Fayetteville Police Chief Harold Medlock. One reason that it is hard to finish the joke is that these three were on the same page, which is somewhat surprising given the roles they occupy.

I immediately thought of that talk yesterday when I saw this News and Observer photograph of United States Attorney General Loretta Lynch standing next to Chief Medlock. Lynch traveled to Fayetteville as part of her nationwide community policing tour. She chose Fayetteville in part because of the work the presenters discussed at our April conference.

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The Meaning of Custody During Traffic Stops Under Miranda v. Arizona and Berkemer v. McCarty

The 50th anniversary of the landmark ruling in Miranda v. Arizona, 384 U.S. 436 (1966), will occur in a few weeks on June 13. As everyone knows, the case required a set of warnings and waiver of rights before a statement obtained during custodial interrogation could be introduced during the government’s presentation of its evidence at trial. The case spawned many thousands of appellate cases throughout federal and state courts. And the United States Supreme Court has issued several rulings that have clarified, extended, or confined Miranda’s scope.

This post will briefly review the meaning of custody during traffic stops by focusing on the Supreme Court’s most significant opinion on this issue: Berkemer v. McCarty, 468 U.S. 420 (1984). [For a discussion of all significant aspects of Miranda, see the text on pages 534-52 and case summaries on pages 578-640 of Arrest, Search, and Investigation in North Carolina (4th ed. 2011), and pages 87-89 (text) and 95-100 (case summaries) of the 2015 supplement.]

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Feds Focus on Fines and Fees

 

The U.S. Department of Justice recently issued a letter regarding its “strong interest” in putting a stop to unconstitutional court fines and fees that target the poor. According to the authors, Vanita Gupta, Principal Deputy Assistant Attorney General of the Civil Rights Department, and Lisa Foster, Director of the Office for Access to Justice, “[T]he harm caused by unlawful practices . . . can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape.” The DOJ sent the letter to judges and court administrators in all fifty states on March 14, 2016, directing them to review their procedures on imposing and enforcing fines and fees. An article from the New York Times states that the DOJ rarely issues “Dear colleague” letters of this sort; the last one went out in 2010 and concerned the need to provide interpreters for people who don’t speak English.

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News Roundup

The New York Times and Right on Crime are each reporting that South Carolina and Louisiana appear poised to raise the upper age of juvenile court jurisdiction in those states from 16- to 17-years-old.  The change would mean that most 17-year-old offenders would participate in juvenile court rather than adult court, and is in line with a bipartisan national trend towards raising the age of juvenile court jurisdiction.  The article from the Times notes that North Carolina is one of only two states where 16-year-old offenders are automatically treated as adults in the criminal justice system.  The Criminal Investigation & Adjudication Committee of the N.C. Commission on the Administration of Law & Justice is working on a raise the age proposal for North Carolina. Jessica Smith, Reporter to the Committee, presented a draft report on the issue to the Committee last Friday. Information about the Committee’s work is available here.  Keep reading for more news.  

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Twenty-Five Year Review of Sentences to Life Without Parole

I have started to get questions about G.S. 15A-1380.5, a repealed statute that used to provide for judicial review of sentences to life without parole after 25 years of imprisonment. It’s too early for a court to be applying the law just yet—the first reviews shouldn’t happen until 2019—but we’re getting close, and people are talking about it. Today’s post describes the law.

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Blanket Objection by State to Fact-Findings Sufficient to Trigger De Novo Review in DWI Case

If you decide to read yesterday’s court of appeals opinion in State v. Miller, ___ N.C. App. ___ (May 17, 2016) do yourself a favor and skip to page 9.  Not having the benefit of this advice, I got lost on page 3. At first, I thought my printer had malfunctioned, since page 3 seemed to be saying the same thing as page 2. But there’s no problem with my printer. I can’t say the same for the procedural history in this case. Tortured is not a sufficiently negative adjective to describe its path. Fortunately, things pick up half way through the opinion and an important rule emerges:  The State may obtain a de novo hearing in superior court under G.S. 20-38.7(a) without setting forth the specific findings of fact to which it objects.

So that’s the rule. Unless the senior resident superior court judge says otherwise.  You’re going to have to read the rest of this post to make sense of that.

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May an Officer Assume a False Identity Online in Order to “Friend” a Suspect?

Officers are allowed to misrepresent their identities in the course of their investigations: they may pose as drug buyers, or prostitutes, or members of an organized crime syndicate. Is the same thing true online? In other words, may an officer claim to be someone else in order to “friend” a suspect on social media and thereby gain access to whatever information the suspect has posted? The answer isn’t clear yet, but I would guess that courts ultimately will say yes.

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