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Hemp and hemp products are now legal under state and federal law. Hemp is the same plant as marijuana and contains the same chemical compounds, though in different concentrations. Could a drug dog trained to detect marijuana alert on legal hemp? If so, does that impact whether a dog sniff is a search under the Fourth Amendment? And does it mean that a drug dog’s alert no longer provides probable cause to search a vehicle? This two-part series tackles those questions.

The New York Times story about Tyre Nichols’ funeral is here. Rev. Al Sharpton delivered the principal eulogy, but there were many speakers, including Mr. Nichols’ mother and Vice President Harris. A common theme was a desire to see changes in policing. The Vice President specifically demanded that Congress pass the George Floyd Justice in Policing Act. Relatives of Mr. Floyd, Breonna Taylor, and Eric Garner were among the mourners. Keep reading for more news.

The North Carolina Supreme Court held last December in In re Custodial Law Enforcement Recording, 2022-NCSC-125, 881 S.E.2d 96 (2022), that a trial court abused its discretion in denying the City of Greensboro’s motion to modify restrictions imposed on the release of police body camera recordings. The trial court had previously entered an order that allowed members of the Greensboro City Council to view the recordings, but prohibited them from disclosing or discussing their contents to or with others. When the City sought reconsideration of that order on the basis that the restrictions prevented council members from carrying out their duties, the court summarily denied the motion after noting that council members had not “bothered to watch” the video. The Supreme Court determined that the trial court’s failure to consider the City’s reasons for seeking the modification, relying only on council members’ failure to watch the recordings while the restrictions were in place, demonstrated an abuse of discretion.

Effective January 1, 2023, the state correctional system was transferred from the Department of Public Safety to its own cabinet-level department, the Department of Adult Correction. S.L. 2021-180, sec. 19C.9. The new department includes prisons and probation; juvenile justice will stay in the Department of Public Safety. After 16 years at the School of Government, I will be taking a leave of absence to work as the Senior Policy Advisor for the new department.

Suppose that Victor Victim was the victim of a non-fatal shooting. Law enforcement has charged Dan Defendant with the crime, but Victor is not enthusiastic about testifying against Dan and has not cooperated with the police and the prosecutor in the run-up to the trial. The State has issued a subpoena to compel Victor’s attendance. Olga Officer is out looking for Victor when she sees him driving by. May Olga stop Victor’s car in order to serve him with the subpoena?

The Associated Press reports here that “[f]ive fired Memphis police officers were charged Thursday with murder and other crimes in the killing of Tyre Nichols, a Black motorist who died three days after a confrontation with the officers during a traffic stop.” The officers allegedly beat Mr. Nichols to death. All five have been charged with second-degree murder among other crimes. Video of the incident is expected to be released to the public today and those who have seen it describe it as “horrific.” In a local connection, the Chief of Police in Memphis is CJ Davis, who served in a similar position in Durham until 2021. Chief Davis fired the five officers and has described their conduct as “a failure of basic humanity.” The officers’ attorneys say that they have little information about the case but that none of the officers intended to kill Mr. Nichols. Keep reading for more news.

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on January 17, 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.

In State v. McLymore, 380 N.C. 185, 868 S.E.2d 67 (2022), our Supreme Court held that Section 14‑51.3 “supplants the common law on all aspects of the law of self-defense addressed by its provisions,” and “the only right to perfect self-defense available in North Carolina [is] the right provided by statute.”  Id. at 191, 868 S.E.2d at 72-73.  At the same time, it interpreted the felony disqualifier provision of Section 14-51.4 – consistently with “common law principles” – to require a causal nexus between the felony and the use of force.  Id. at 197, 868 S.E.2d at 77.  The common law is apparently not so easily dispensed with.  This post – my first contribution to this forum – addresses the persistence of the common law in the area of self-defense.  My colleague Phil Dixon provided color commentary on McLymore here.  My colleague John Rubin discussed the felony disqualifier provision (and anticipated the holding in McLymore) here.

The law that governs the use of nontestimonial identification procedures in delinquency matters is markedly different than the law that governs use of these same procedures in criminal matters. The Juvenile Code requires a court order prior to the use of most nontestimonial identification procedures, a nontestimonial identification order (NTO) can only be issued in relation to felony charges, there are specific statutes that govern the destruction of resulting records, and the willful violation of the juvenile NTO statutes carries a criminal penalty. This post describes when NTOs are needed, and the procedure that must be followed to obtain them, in matters under juvenile jurisdiction.

In response to the opioid crisis, North Carolina passed several protections designed to alleviate some of the legal liability surrounding drug use in the interest of harm reduction and public health. One of those protections authorized needle exchange programs (alternatively known as safe syringes programs). G.S. 90-113.27. A recent study examined how the needle exchange program is working in seven North Carolina counties and found that the law was not consistently applied. Brandon Morrison et al., “They Don’t Go by the Law Around Here”: Law Enforcement Interactions After the Legalization of Syringe Services Programs in North Carolina, vol. 19, Harm Reduction Journal, 106 (Sept. 27, 2022). Considering the study’s findings, I thought a refresher on the immunity provisions for syringe exchanges and similar protections would be timely. Read on for the details.