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.
A Rare Opinion on Criminal Discovery in North Carolina
There seem to be fewer and fewer reported decisions about criminal discovery in North Carolina. A recent North Carolina Supreme Court decision finding a discovery violation by the prosecution, State v. Davis (Apr. 15, 2016), made me wonder why. This post reviews the evolution of North Carolina’s criminal discovery laws, which has brought relative calm to this area of law, along with the decision in Davis, which deals with a recurring issue about disclosure of expert opinion.
Sentencing Commission Recidivism Report Available
The North Carolina Sentencing and Policy Advisory Commission and the Division of Adult Correction recently released their Correctional Program Evaluation: Offenders Placed on Probation or Released from Prison in FY 2013—known better as the recidivism report. Every biennial report is interesting—who wouldn’t want to know how present sentencing choices affect future crime?—but this report is especially interesting because it is the first one to include a sizable number of defendants sentenced and supervised after Justice Reinvestment. We can begin to see if the law is working as intended.
News Roundup
The North Carolina General Assembly’s short session began Monday. On the first day of the session, supporters and opponents of HB2 held well attended dueling rallies in Raleigh according to this report from the Charlotte Business Journal. The Wall Street Journal has a national perspective on the rallies here. Democratic legislators filed a bill to repeal HB2, but Senate President Pro Tem Phil Berger has stated that repeal is not on the Republican agenda. The News and Observer reports that 54 protestors opposed to HB2 were arrested inside the Legislative building after refusing to leave House Speaker Tim Moore’s office and the area around it. Keep reading for more news.
Federal Judge Enjoins 300-Foot Rule for Sex Offenders
The North Carolina law making it a felony for some sex offenders to go within 300 feet of certain locations intended for children is unconstitutionally overbroad under the First Amendment. Last week, a federal judge permanently enjoined all North Carolina district attorneys from enforcing the law.
Only Experts Can Testify About HGN
Author’s note: I added the conclusory paragraph at the end of this post shortly after its initial publication in response to helpful questions from readers about the significance of State v. Godwin and State v. Torrence.
Like Supercalifragilisticexpialidocious, horizontal gaze nystagmus is a mouthful. Unlike Supercalifragilisticexpialidocious, not just anyone can utter horizontal gaze nystagmus and sound wise beyond her years. Two recent court of appeals opinions hold that that a witness be qualified as an expert before testifying about the results of a horizontal gaze nystagmus test.
N.C. Court of Appeals Rules That Defendant Did Not Make An Unambiguous Assertion of Right to Counsel Under Miranda to Bar Officer’s Custodial Interrogation
The United States Supreme Court and North Carolina appellate courts have ruled that a defendant must make an unambiguous request for counsel under Miranda to bar an officer’s custodial interrogation. A week ago, the North Carolina Court of Appeals in State v. Taylor (April 19, 2016), ruled that the defendant did not make an unambiguous request for counsel under Miranda. This post provides the background to this issue and discusses the Taylor ruling.
Court of Appeals: Pleading Standards Are Relaxed for Citations
Last week, the court of appeals decided State v. Allen, a case that holds that the pleading requirements that apply to indictments and other accusatory pleadings don’t necessarily apply to citations. The opinion is helpful to the State, but I think there’s a reasonable chance of further review.
News Roundup
House Bill 2 continues to be a major topic in the local and national news this week. As the Charlotte Observer reports, Governor McCrory defended the legislation on NBC’s “Meet the Press” on Sunday morning. McCrory’s appearance followed his issuance of an Executive Order last week that calls for the legislature to restore a State cause of action for wrongful discharge based on employment discrimination, but does not call for changes to the controversial restroom regulations.
On Tuesday, the Fourth Circuit Court of Appeals issued a 2-1 decision that reversed a lower court’s dismissal of a transgender high school student’s lawsuit alleging that his local school board discriminated against him in violation of Title IX by banning him from using the boys’ restroom at his school. The Fourth Circuit determined that the lower court did not “accord appropriate deference to the relevant Department of Education regulations” which the Department has interpreted as requiring schools to treat transgender students consistent with their gender identity. As the Charlotte Observer reports, the McCrory administration filed a brief in the case supporting the Virginia restroom ban.