Fourth Circuit Court of Appeals Rules That an Officer Was Not Entitled to Summary Judgment in a Civil Lawsuit for an Arrest Allegedly Made Without Probable Cause

The Fourth Circuit Court of Appeals recently ruled (2-1) in Smith v. Munday, 848 F.3d 248 (4th Cir. Feb. 3, 2017), that a North Carolina officer was not entitled to summary judgment in a civil lawsuit for arresting the plaintiff allegedly without probable cause. This case is the subject of this post. Continue reading

Prying Open the Jury Room: Supreme Court Creates an Exception to the No-Impeachment Rule for Racial Bias

[Editor’s note: Today’s post was written by Alyson Grine and Emily Coward. Until last year, Alyson was the Defender Educator at the School of Government. She is now an Assistant Professor of Law at NCCU, but she continues to work with the School of Government’s Indigent Defense Education team on the NC Racial Equity Network. Emily is a Research Attorney with the Indigent Defense Education team at the School of Government.]

Summary: In its March 6 opinion in Pena-Rodriguez v. Colorado, the U.S. Supreme Court carved out an exception to the “no impeachment” rule for cases in which a juror makes a clear statement that he or she relied on racial bias in voting to convict a criminal defendant. In such cases, the evidentiary rule preventing the court from hearing juror testimony about statements made during deliberations must give way so that the court may consider whether the alleged racial bias violated the defendant’s Sixth Amendment right to a fair trial. We may be opening ourselves up to accusations that we are seeking to extend our moment in the spotlight by blogging about this case: as mentioned in last week’s News Roundup, the manual we co-authored, Raising Issues of Race in North Carolina Criminal Cases, was cited by Justice Alito in his dissenting opinion. However, as this opinion marks the beginning of a new chapter in the centuries old “no impeachment” rule, it’s important for North Carolina practitioners to understand its implications. Continue reading

News Roundup

Over the past week the Associated Press has published reports describing instances of physical and emotional abuse at the Word of Faith Fellowship church in Spindale.  According to the AP, congregants, including children, “were regularly punched, smacked, choked, slammed to the floor or thrown through walls in a violent form of deliverance meant to ‘purify’ sinners by beating out devils.”  Former congregants have alleged that two members of the church who are assistant district attorneys in Prosecutorial District 25 helped cover up the abuse.  Keep reading for more news.

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Category: Uncategorized

All the Probation Response Options

I can’t be the only one who has a tough time keeping track of what sanctions are permissible in response to different types of probation violations in different types of cases. It’s the kind of thing that requires a chart. And you know I love a chart. Continue reading

The Light Just Turned Yellow for Retrograde Extrapolation

I wrote in September 2015 that the court of appeals’ view of the admissibility of retrograde extrapolation under Daubert did not look much different from its take on the admissibility of that evidence under old Rule 702.  As of yesterday, it does. The court of appeals in State v. Babich, __ N.C. App. __ (2017), changed the green light for retrograde extrapolation testimony in DWI cases to yellow. Continue reading


Evidence Rule 803(8) and the Admissibility of Police Reports

Suppose that a law enforcement officer testifies for the State in a criminal case and is unable to remember some aspects of his investigation. The prosecutor shows the officer his report, which the officer prepared in the ordinary course of his work around the time of the events, but it does not refresh his memory. The prosecutor offers the report as evidence. The defendant’s attorney objects, relying on North Carolina Rule of Evidence 803(8). That rule creates an exception to the hearsay rule for official records and reports, but it specifically excludes “in criminal cases matters observed by police officers and other law-enforcement personnel.” The prosecutor argues that notwithstanding this prohibition, the report is admissible under other hearsay exceptions. Who’s right? Continue reading

May an Officer Search a Vehicle Incident to an Arrest for DWI?

In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court of the United States ruled that an officer may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment” or it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant involved an arrest for driving with a suspended license, and the Court concluded that was “an offense for which police could not expect to find evidence in the passenger compartment” of the arrestee’s car.

But what about DWI? If an officer arrests a driver for DWI and secures the driver in the officer’s cruiser, may the officer search the driver’s vehicle because it is reasonable to believe that evidence of impaired driving will be found in the vehicle? Yes, at least on the facts before it, ruled the Court of Appeals of North Carolina in State v. Martinez, __ N.C. App. __, 795 S.E.2d 386 (2016). This post summarizes Martinez and considers searches incident to DWI arrests more broadly. Continue reading

News Roundup

As the New York Times reports, the United States Supreme Court heard oral argument this week in Packingham v. North Carolina, a case that presents the question of whether prohibiting sex offenders from accessing social networking websites, as North Carolina does with G.S. 14-202.5, violates the First Amendment.  If you’re not up to speed on Packingham, check out Jamie’s 2013 post discussing the North Carolina Court of Appeals decision holding G.S. 14-202.5 facially unconstitutional, and then check out Jeff’s 2015 News Roundup entry explaining the North Carolina Supreme Court’s subsequent reversal of the lower appellate court.  A transcript of the oral argument is available here and a SCOTUSblog argument analysis, suggesting that the Justices were skeptical of the constitutionality of the law, is available here.  Keep reading for more news.

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Category: Uncategorized

North Carolina’s Warrantless Search Conditions

In North Carolina, probationers, post-release supervisees, and parolees are subject to warrantless searches—sometimes by a probation-parole officer, sometimes by law enforcement officers. The statutory conditions that apply to each type of offender and officer are not identical. Today’s post collects them all in one place. Before getting into any of the complicated issues about the constitutionality of a warrantless search of a supervised offender, a sensible starting point is a careful look at the language of the search condition itself. Continue reading

May Teachers Search Students’ Cell Phones?

I have a “friend” whose teenage son was caught using his cell phone in class. The teacher saw him using it and took the phone. She looked at the phone when she picked it up and saw displayed on its screen a snapchat from another student in the class. So she took the other student’s phone too. My friend wanted to know what the teacher’s options were after that. Could she search the contents of the cell phones she had seized? Continue reading