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Case Summaries: N.C. Supreme Court (Dec. 16, 2022)

This post summarizes the published criminal opinions from the Supreme Court of North Carolina released on December 16, 2022. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

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May a Judge Rule on a Motion to Suppress Evidence Seized Under a Search Warrant That He or She Issued?

Suppose a superior court judge issues a search warrant authorizing the search of a suspect’s house for drugs. Officers execute the warrant, find drugs, seize them, and charge the suspect with drug offenses. The charges end up in superior court, where the suspect – now the defendant – moves to suppress, arguing that the search warrant application lacked probable cause and that the judge who issued the warrant erred in doing so. Is it OK for the judge who issued the warrant to hear such a motion? Continue reading

News Roundup

Happy new year! It’s time for the first news roundup of 2023, but I’ll start with one item that dates back to 2022. The Associated Press reports here that “Adnan Syed, who was released from a Maryland prison this year after his case was the focus of the true-crime podcast ‘Serial,’ has been hired by Georgetown University as a program associate for the university’s Prisons and Justice Initiative.” Apparently he will support a class in which “students reinvestigate decades-old wrongful convictions, create short documentaries about the cases and work to help bring innocent people home from prison.” I guess he might know something about that. Keep reading for more news. Continue reading

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New Paper on No-Knock Warrants

I recently finished a paper on the law and practice of no-knock warrants in North Carolina. I went with the creative title, The Law and Practice of No-Knock Search Warrants in North Carolina. You can access the paper here. To give you a sense of the contents, here’s a paragraph from the introduction that notes some of the takeaways:

This bulletin takes a deep dive into the law and practice regarding no-knock warrants in North Carolina. Among the conclusions are: (1) there is no explicit authority for North Carolina judicial officials to issue no-knock warrants; (2) judicial officials sometimes issue such warrants anyway; (3) no-knock warrants seem to be very rare; (4) when an application for a no-knock warrant is granted, the resulting warrant does not always include an express judicial determination regarding the need for a no-knock entry or an express judicial authorization of such an entry; and (5) quick-knock entries, where officers knock and announce their presence and then immediately force entry, may be widespread.

Lots of other people made this paper possible, including practicioners who talked about their experiences with me, academics who wrote about this general topic in other jurisdictions, and clerks of court who pointed me in the right direction and let me look through many, many search warrants. My colleagues here at the School of Government provided helpful comments and valuable editing. Others too numerous to mention helped in various ways. I hope that the paper is useful and welcome feedback on it.

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Failure to Appear at Civil No-Contact Hearing Was a Prior Opportunity for Cross-Examination and Constituted an Implied Waiver of Confrontation Rights at Subsequent Criminal Trial

The Confrontation Clause of the Sixth Amendment generally guarantees a criminal defendant the right to confront and cross-examine his accusers in person. If a witness was available for an earlier trial or other proceeding and the defendant had an opportunity and motive to cross-examine the witness there, the witness testimony from the earlier proceeding may be admitted at a later criminal trial without offending the Confrontation Clause if the witness is unavailable at the time of trial. We have known for some time that this “prior opportunity for cross-examination” can be met at various stages of a criminal proceeding. See State v. Rollins, 226 N.C. App. 129 (2013) (testimony from plea hearing provided prior opportunity for cross); State v. Ross, 216 N.C. App. 337 (2011) (same for testimony at probable cause hearing); State v. Ramirez, (2003) (same for testimony at bond hearing, although the case was decided under hearsay rules and not expressly as a confrontation issue); State v. Chandler, 324 N.C. 172 (1989) (same for testimony from a prior trial); State v. Giles, 83 N.C. App. 487 (1986) (same for testimony from a juvenile transfer hearing). In all those cases, though, the defendant was present at the earlier proceeding, was represented by counsel, and the earlier proceedings could naturally be viewed as a part of the underlying criminal case. In State v. Joyner, 2022-NCCOA-525, ___ N.C. App. ___ (2022), the Court of Appeals expands the concept of prior opportunity to cross to a civil hearing where the defendant did not attend the hearing and was not entitled to counsel. Read on for the details. Continue reading

News Roundup

The biggest national (and international) criminal law story this week involves the December 1988 terrorist attack on Pan Am Flight 103. The flight was destroyed by a bomb over Lockerbie, Scotland, killing 270 people – many of them American students on their way home for the holidays. Two Libyan men alleged to have been involved in the attack were tried in 2001. One was convicted and imprisoned, and has since died. The other was acquitted. Two years ago, federal prosecutors charged a third man, former Libyan intelligence officer Abu Agila Mohammad Mas’ud Kheir Al-Marimi, who is thought to have been the bomb-maker. Al-Marimi is now in US custody and some reports indicate that he has confessed to his role in the attack. However, the circumstances of his reported confession and transfer to the US are unclear, with some suggesting that he was essentially kidnapped by a warlord, forced to admit guilt, and handed over to the US despite the lack of any formal extradition agreement between Libya’s dysfunctional government and the US. The Guardian has more here. I expect significant legal wrangling over the purported confession as the criminal case proceeds. Keep reading for more news. Continue reading

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2022 Criminal Legislative Summaries

It’s the most wonderful time of the year: legislative summaries are now available.

Though the North Carolina General Assembly has not yet adjourned, it does not expect to have votes during any of the sessions held for the remainder of the year. Nevertheless, there can always be surprises.

For now, you can read summaries of all of the criminal law and related legislation enacted during the 2022 legislative session here. Each summary provides a brief description of the act in question along with a link to the text of the act and, where available, links to blogs my colleagues and I wrote.

If any new bills are chaptered before the year is out, I will update the document accordingly. In the meantime, feel free to email me with any questions or comments.

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State v. Eagle: Blue Lights and Impeded Egress Equal a Fourth Amendment Seizure

The North Carolina Court of Appeals in State v. Eagle, 2022-NCCOA-680, ___ N.C. App. ___, 879 S.E.2d 377 (2022), considered whether the driver of a car that had already stopped when a patrol officer pulled in behind it with blue lights activated was seized within the meaning of the Fourth Amendment. The trial court had ruled that the driver was not immediately seized by the officer in this encounter. Instead, the court ruled that a seizure occurred only when the officer took Ms. Eagle’s driver’s license and returned to her patrol car. By this point, the officer had developed reasonable suspicion to believe Ms. Eagle was impaired. The Court of Appeals reversed, determining that Eagle was seized at the outset of this encounter. This post discusses State v. Eagle and its relationship to other recent seizure jurisprudence. Continue reading

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Incapacity to Proceed (G.S. Chapter 15A) and Incompetency (G.S. Chapter 35A): Apples and Oranges?

Incapacity to proceed under North Carolina General Statutes (G.S.) Chapter 15A and incompetency proceedings under G.S. Chapter 35A involve, at least in part, a court inquiry into someone’s cognitive abilities. Incapacity to proceed is narrowly focused on a person’s cognition within a criminal legal proceeding. Incompetency is a bigger picture analysis, more broadly focused on the individual’s life and needs, with a bit of forward-looking involved. In that way, incompetency is concerned with both a person’s cognitive abilities and their functioning.

These proceedings are separate and distinct from one another. Yet, if a client has history or present involvement in both, the client’s attorney in one proceeding should know about and understand the other. That attorney may want, for example, to access information or introduce evidence from the other proceeding. The attorney will want to consider issues such as information sharing and confidentiality, and the admissibility or other uses of records from one proceeding in the other.

These issues may be the subject of future posts. First, however, we need to understand incapacity to proceed under G.S. Chapter 15A and incompetency under G.S. Chapter 35A. This post provides a primer on incapacity and incompetency proceedings and compares the standards for each.

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News Roundup

Tens of thousands of residences and businesses in Moore County began the week without electricity after two electrical substations in the county were damaged by gunfire on Saturday evening. Federal, state and local authorities are investigating, and CNN reports that authorities recovered nearly two dozen shell casings from a high-powered rifle at the scenes. Authorities believe the person or persons who damaged the substations knew what they were doing, but have not identified a motive for their actions. The News and Observer reported on widespread speculation that the attacks were related to a drag queen show in Southern Pines that began just as the substations were damaged, but CNN reports that investigators have no evidence connecting those events. Duke Energy completed repairs Wednesday, and nearly everyone’s power had been restored by Thursday morning. A reward of up to $75,000 is being offered to anyone who provides information leading to an arrest and conviction.

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