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.
Fourth Circuit: North Carolina Assaults Don’t Count as “Misdemeanor Crimes of Domestic Violence” for Purposes of Firearm Prohibition
It is a federal crime for a person who has been convicted of a “misdemeanor crime of domestic violence” to possess a gun. 18 U.S.C. § 922(g)(9). A “misdemeanor crime of domestic violence” means a misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,” and that is committed by a person with one of several specified relationships to the victim. 18 U.S.C. § 921(a)(33). Late last year, the Fourth Circuit ruled that North Carolina misdemeanor assault convictions generally don’t satisfy that definition.
News Roundup
This week the Tenth Circuit ruled that a condition of supervised release that required a man convicted of distributing child pornography to complete a sex offender treatment program violated the Fifth Amendment. The particular program at issue included a sexual history polygraph that required the man to answer questions about whether he had committed sexual crimes for which he was never charged. The program also required him to “sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities.” The court determined that the threat of being returned to prison for refusing to answer the polygraph questions, and thus violating supervised release, unconstitutionally compelled the man to be a witness against himself. Keep reading for more news.
Egregious Aggravation Is Unconstitutional
In 2008 the General Assembly created the new crimes of rape and sexual offense with a child by an adult offender (G.S. 14-27.2A and -27.4A, respectively). S.L. 2008-117. They have special sentencing rules, described here, including the possibility of a higher maximum sentence if the judge finds “egregious aggravation” in the case. Discussing the law immediately after it passed in 2008, John Rubin wrote (here, on page 3) that placing the responsibility for determining egregious aggravation on the judge—not the jury—was “likely unconstitutional” under Blakely v. Washington. As my kids like to say, “Nailed it.” State v. Singletary, decided by the court of appeals last week (and mentioned briefly in last week’s News Roundup), ratified John’s view.
Is it Legal to Keep a King Cobra as a Pet?
When news broke last week that 21-year-old Orange County resident Ali Iyoob had been bitten by his “pet” King Cobra, I had three thoughts.
- Who has a pet King Cobra?
- Where does one find a King Cobra to keep as a pet?
- It can’t be legal to have a King Cobra in your house. Can it?
The first question is obviously rhetorical. The answer to the second question is: the internet (of course). To answer the third question, I had to do a little research (on the internet, of course).
Court of Appeals Rules That Officer Had Reasonable Suspicion to Extend Traffic Stop
Jeff Welty in his post here yesterday discussed last week’s North Carolina Court of Appeals ruling in State v. Bedient. Today, I will discuss another ruling decided on the same day: State v. Castillo. Both cases are post-Rodriguez cases with different outcomes, with Bedient resulting in a ruling for the defendant and Castillo a ruling for the State.
Court of Appeals Finds Extension of Traffic Stop Unsupported by Reasonable Suspicion
Last week, the court of appeals decided State v. Bedient, a significant post-Rodriguez opinion on traffic stops. The court ruled that an officer lacked reasonable suspicion to extend a stop by a few seconds to ask the driver for consent to search. This post summarizes and analyzes the case.
News Roundup
Earlier this year, the News Roundup noted that the United States Supreme Court held in Hurst v. Florida that Florida’s capital sentencing scheme was unconstitutional under the Sixth Amendment because it permitted a judge to increase a defendant’s maximum authorized punishment based on the judge’s own factfinding rather than that of a jury. The Defender Manual has an overview of the development of the Court’s Sixth Amendment jurisprudence on this issue here. Now the Florida Supreme Court has to decide what to do about the nearly 400 inmates awaiting execution who were sentenced under the unconstitutional scheme. The Palm Beach Post reports that former Florida Supreme Court justices were “among a handful of leading lawyers,” including two former American Bar Association presidents, calling for the court to impose life sentences on all of the inmates in a blanket commutation.
Closer to home, the North Carolina Court of Appeals decided that old G.S. 14-27.4A(c) (now codified as G.S. 14-27.28(c)), a statute which “purports to provide the trial court with the unfettered ability to lengthen a defendant’s sentence . . . with no input from a jury,” is unconstitutional based on the same line of Supreme Court cases implicated in Hurst. The case is State v. Singletary, and, as the opinion notes at page 28, Jessie and John have predicted for some time that the North Carolina statute likely was unconstitutional. Keep reading for more news:
Can the Police Compel You to Unlock Your Phone Using Your Fingerprint?
I’ve written before about whether a court may order a person to provide a password to a computer or a passcode to a phone to enable an officer to complete a lawful search, such as one pursuant to a search warrant. But passwords and passcodes are so old-fashioned. The cool kids are all using biometric data like fingerprints to secure their devices. So, may a person be required to unlock his or her device using a biometric identifier? Yes, said one court recently.
Deadly Force and Resisting a Public Officer
The N&O series: Deadly Force. Today the News and Observer published the last article of its four part investigative series Deadly Force, a series that chronicles numerous physical confrontations between Harnett County sheriff’s deputies and citizens and the deaths and injuries that resulted.