The Supreme Court announced on Monday its adoption of a Code of Conduct setting out the ethics rules and principles that guide the justices. In a statement accompanying the rules, the Court stated that for the most part, the provisions were not new as the Court historically has been governed by “common law ethics rules” derived from a variety of sources. The Court stated that it was adopting the Code to “dispel” the “misunderstanding” that justices regard themselves as unrestricted by ethics rules. Adoption of the ethics rules did not quell the criticism related to recent reports of gifts and benefits bestowed on some justices and critics were quick to point out that the new code lacks an enforcement mechanism.
State v. Julius, the Automobile Exception, and the Exclusionary Rule
Joanna Julius was riding as a passenger in her parents’ car in McDowell County when the person driving the car crashed it into a ditch filled with water. The driver fled the scene. Law enforcement officers responded and searched the car for evidence of the driver’s identity. When they found drugs inside, they arrested Julius and searched her backpack. There, they found more drugs, a pistol, and cash.
Julius was indicted for drug trafficking and related offenses. She moved to suppress the evidence gathered at the scene on the basis that the car was unlawfully searched. The trial court disagreed, and Julius was convicted. She appealed. A divided panel of the Court of Appeals affirmed. Last month, the North Carolina Supreme Court reversed, holding that the search violated the Fourth Amendment. See State v. Julius, ___ N.C. ___, 892 S.E.2d 854 (2023). This post will discuss the court’s analysis of whether the search was lawful and its remanding of the case for consideration of whether the exclusionary rule barred admission of the resulting evidence.
The Abandonment of Digital Devices
Our cell phones and laptops normally are subject to a reasonable expectation of privacy, meaning that police cannot search them without a search warrant or an applicable exception to the warrant requirement. But when a person abandons a digital device, he or she relinquishes that expectation of privacy and police may examine the device without a warrant or an exception. This post discusses when a device has been abandoned and explores several common fact patterns.
Questions of Law: Untangling Admissibility in State v. Gibbs.
Is fentanyl an opiate? That’s the question the prosecutor asked a witness in State v Gibbs. The trial court overruled the defendant’s objection, and the witness was permitted to testify that fentanyl was both an opioid and an opiate. In an unpublished opinion (“Gibbs I”), the Court of Appeals ruled this was error, reversing a conviction for trafficking by possession. Our Supreme Court then reversed the Court of Appeals. In a concise, per curiam opinion, our Supreme Court declared that whether fentanyl is an opiate is a question of law, and it remanded for reconsideration. In a subsequent unpublished opinion (“Gibbs II”), the Court of Appeals determined that fentanyl is an opiate as a matter of law. Reasoning that there was no need for an expert witness to testify on the issue, the Court of Appeals concluded that there was no error in the defendant’s conviction for trafficking. Of course, whether such testimony is necessary does not resolve whether this particular evidence was admissible. Gibbs is an evidence case, but the rule it illustrates is elusive. This post examines Gibbs to ascertain whether the prosecutor asked a permissible question.
New Bulletin on Pretrial Release in Criminal Domestic Violence Cases
I recently finished a new Administration of Justice Bulletin on Pretrial Release in Criminal Domestic Violence Cases. It is available here as a free download. Through a series of questions and answers, the bulletin discusses pretrial release generally; examines the special rules of pretrial release for domestic violence cases; and explores the mechanics of the 48-hour rule, the impact of violations of these special pretrial release rules, and questions on limitations of authority.
News Roundup
Police in Boone may have narrowly averted a mass shooting this week. According to WRAL, Peter Gabaree was asked to leave a popular bar in the college town. He went to his vehicle in the parking lot, where two patrons noticed that he was holding a handgun. They told the bar’s security staff, who called police. Officers responded and ultimately charged Gabaree with going armed to the terror of the public. In his vehicle, they found “a tactical vest, a shotgun, the pistol and hundreds of rounds of ammunition.” The police chief described Gabaree as “preparing weapons.” Keep reading for more news.
Case Summaries: N.C. Court of Appeals (Nov. 7, 2023)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on November 7, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
A Closer Look at the New Misdemeanor DV Crime and the 48-Hour Rule
I previously blogged about the new misdemeanor crime of domestic violence, which will take effect on December 1, 2023. For the new offense, codified as G.S. 14-32.5, a person is guilty of a Class A1 misdemeanor if that person uses or attempts to use physical force, or threatens the use of a deadly weapon, against another person. The person who commits the offense must have a covered relationship with the victim, as specified by the statute.
While both the new misdemeanor domestic violence statute (G.S. 14-32.5) and the existing domestic violence pretrial release statute (G.S. 15A-534.1) require both a covered offense and a qualifying relationship, the requirements do not mirror one another. This post explores the interplay between the relationships listed under G.S. 14-32.5 and G.S. 15A-534.1.
News Roundup
A group in Massachusetts is working to clear the names of people accused of witchcraft, according to this report from the AP. The Massachusetts Witch-Hunt Justice Project includes historians and distant relatives of the hundreds of people who were charged, tried for, or convicted of witchery in the state during the 17th century. A similar effort in Connecticut resulted in a legislative resolution of innocence on behalf of the accused and an apology. According to this story, the last witchcraft trial in North America took place in Virigina in 1706. Read on for more criminal law news.
Probation Violations and the Pretrial Integrity Act
The Pretrial Integrity Act has been in effect for one month now and has generated several questions about the implications of the new provisions. Some of the most frequently asked questions stem from probation violations, particularly how arrests for probation violations are treated under the new law. This post briefly addresses the two most common questions in this context.