Consider a fact pattern that takes place every day, all across the country: a police officer stops a motorist for a traffic infraction, runs the motorist’s license through a computer database and finds nothing exceptional, and returns the driver’s license and registration, perhaps along with a warning or a citation. The officer then asks the driver for consent to search the driver’s car. The driver consents and the officer finds drugs. Did the officer do anything wrong in this situation? Are the drugs subject to suppression? The answers depend on whether the traffic stop ended when the officer returned the driver’s license. As a recent case shows, that can be a complex determination.
New Trafficking Fines Coming for Heroin, Fentanyl, and Carfentanil
My colleague Jeff Welty recently wrote about S.L. 2023-123 and changes to our death by drug distribution laws. He mentioned changes to the mandatory drug trafficking fines for certain drugs there, but I wanted to follow up on that point with the details. The new law, with new fines for certain controlled substances, takes effect on December 1, 2023. This post examines the coming changes to drug trafficking fines. Consistent with my defender-focused role, it also explores potential constitutional issues defenders might consider raising in cases where the new fines apply.
News Roundup
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.