Recent Blog Posts Page 218 on North Carolina Criminal Law Blog

In its seminal opinion establishing the State’s right to withdraw blood from a DWI suspect over his objection and without a warrant when there are exigent circumstances, the United States Supreme Court left a significant question unanswered. The court in Schmerber v. California, 384 U.S. 747 (1966), noted that the petitioner “is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the ‘Breathalyzer’ test petitioner refused. . . . We need not decide whether such wishes would have to be respected.” Id. at 771.

So how have courts in the ensuing four decades answered this question? Must an impaired driving suspect be offered the least intrusive type of chemical test available or a choice about the type of testing when he or she has a sincere objection to a particular test?

These days, figuring out the permissible ways to respond to a probation violation is easy. All you need to know is the date of the offense for which the person is on probation. And the type of offense (felony, Structured Sentencing misdemeanor, or DWI). And the date the person was placed on probation. And the date of the alleged probation violation. And bear in mind, of course, that the person may be on probation for more than one offense, with different rules applicable to each case. Once you have all that—piece of cake!

Sometimes a legislature enacts a statute that has consequences beyond the direct impact of the statute’s provisions. West Virginia’s statute allowing the carrying of a concealed weapon with a permit may be such an example, based on the February 23, 2016, ruling of the Fourth Circuit Court of Appeals in United States v. Robinson. The court ruled that a West Virginia officer did not have reasonable suspicion to conduct a frisk because there was insufficient evidence of dangerousness, relying in part on a person’s right in West Virginia to carry a concealed weapon with a permit. And this ruling may impact cases in other states, such as North Carolina, that have a statute similar, although not identical, to West Virginia’s. This post discusses this ruling and its potential impact in North Carolina state courts.

The court of appeals recently decided State v. Ford, a case about the authentication of social media evidence. This is the first North Carolina appellate case to give careful consideration to the issue, and the opinion sets a relatively low bar for authentication. Because this type of evidence is increasingly prevalent, the case is an important one.

The Atlantic reports that people attending Supreme Court oral arguments on Monday were “gobsmacked” when Justice Clarence Thomas asked a government attorney a question from the bench.  It’s been ten years since Thomas last asked a question in court.  The article suggests that Thomas’s broken silence is “powerful evidence” that the court has changed since Justice Scalia’s death a few weeks ago, and notes that no current Justice has ever sat on the court without Scalia.  A blog post from Sentencing Law and Policy indicates that the Justices did not grant review in any new cases this week and anticipates that the Supreme Court docket likely will be kept relatively light given that the court now faces the possibility of finding itself in a 4-4 tie in high profile cases.

As if things weren’t sufficiently unsettled on the high court already, the lights in the courtroom unexpectedly went out during Monday’s oral argument.  The Justices reportedly continued asking questions in the dark.  Let’s take a look at the other news of the week:

Two new cases from the court of appeals, both involving defendants named Johnson, shed more light on the meaning of “absconding” from probation.

Proving that a driver was impaired by alcohol is not all that difficult, particularly when the driver submits to a breath test and the result is .08 or more.  Proving that a driver was impaired by drugs or by a combination of alcohol and drugs is considerably more challenging. But an opinion released yesterday by the court of appeals demonstrates one way in which it can be done, even without a confirmatory chemical test.

The web has several stories about large retail stores banning people caught shoplifting from returning, sometimes for life, sometimes from all of the stores in the chain. Sometimes the incident prompting the ban goes to court, with the person convicted of shoplifting. Sometimes the store does not pursue criminal charges but rather has the person sign an agreement acknowledging that he or she is not permitted to come back. What happens if the person returns, reenters the store, and is caught shoplifting again? In some districts in North Carolina, the person is charged not with trespassing and shoplifting, both misdemeanors, but rather with felony breaking or entering under G.S. 14-54(a). I have reservations about whether the law supports this charge.

Nearly five years ago, the U.S. Supreme Court decided J.D.B. v. North Carolina, a case arising from the police interrogation of a middle school student in Chapel Hill. In a 5-4 decision, the Court ruled that police officers must consider a juvenile’s age when determining whether they must read juveniles their Miranda rights before questioning them. The ruling represents a major shift in Miranda jurisprudence by establishing a different standard for evaluating police interrogations of juveniles – the reasonable child standard. In the years since J.D.B., however, lower courts have not clearly defined how the reasonable child standard impacts the assessment of whether a juvenile was “in custody.” The application of this new standard also raises questions about how North Carolina courts evaluate custody determinations in the school setting. These and other issues are addressed in “Applying the Reasonable Child Standard to Juvenile Interrogations After J.D.B. v. North Carolina” (No. 2016/01), a new Juvenile Law Bulletin.

The unexpected death of Supreme Court Justice Antonin Scalia continues to dominate the national news this week.  USA Today reports that the high court appeared to be split in a 4-4 deadlock at oral argument of a criminal case involving the exclusionary rule on Monday; Orin Kerr has more analysis of the legal issue here.  President Obama made a guest post to SCOTUSblog where he explains that he takes his constitutional duty to appoint judges to the Supreme Court seriously, and vows to nominate someone to fill Scalia’s seat in the coming weeks.  The Washington Post reports that Scalia was in the company of “high-ranking members of an exclusive fraternity for hunters called the International Order of St. Hubertus” at the Cibolo Creek Ranch on the weekend of his death.  More news after the break: