North Carolina Criminal Law Blog

If you’ve been to Walmart lately, you know that there are hardly any cashiers anymore. The retail giant seems intent on getting us all to use its self-checkout kiosks where shoppers scan their own merchandise and bag it too. Pretty much every time I shop there, the kiosk alerts, suggesting that I may have “missed a scan.” I flag down the harried employee who is supposed to be keeping an eye on at least a half-dozen kiosks, and he or she straightens things out. But beware the shopper who actually does miss a scan . . . or perhaps misses several scans. Fox News reports that “[a] Michigan woman is being charged after allegedly stealing items from Walmart by not scanning all of her items at the self-checkout.” I was initially outraged on behalf of Walmart shoppers everywhere, though my outrage diminished significantly upon reading that surveillance footage allegedly shows the shopper in question failing to scan over $1000 in goods over a period of months. Keep reading for more news.

The role of artificial intelligence (AI) in American life was a hot topic of discussion at a conference for judicial educators that I attended earlier this week. The conference launched with a screening of the documentary Coded Bias, which explores disparities in the data that inform algorithms for a range of computerized functions from facial recognition to loan eligibility to insurance risk. The documentary highlights the vast amount of data collected and controlled by a small number of large U.S. companies and the lack of regulation governing its use. A panel of experts spoke after the screening about what judges should know about AI. Several of those topics related to its use in preventing, investigating and punishing crime.

Most crimes on the list of reportable offenses automatically and mandatorily require registration upon conviction. As discussed in an earlier post, however, some crimes require registration only if the sentencing court orders it. After I wrote that post, the Supreme Court of North Carolina issued an opinion on what findings can properly support a trial court’s conclusion that a conviction will require sex offender registration. Today’s post discusses that case, State v. Fuller, 2021-NCSC-20, ___ N.C. ___, ___ S.E.2d ___ (Mar. 12, 2021).

Is it legally permissible to adjudicate a juvenile delinquent based on that juvenile’s violation of an order for protective supervision in an undisciplined matter? The North Carolina Court of Appeals says yes. The court upheld the practice of adjudicating a juvenile delinquent following an admission to indirect contempt related to violation of an order issued in an undisciplined case in In re B.W.C., 2022-NCCOA-590 (September 6, 2022). This post details the court’s holding and explores ramifications of the decision.

Suppose an officer is investigating a report of drug sales at a home. The officer sends an informant in to make a controlled buy from the suspected dealer. The informant comes out of the house with drugs and a report that the dealer has a large additional quantity of illicit substances remaining in the house. The officer decides that it would be a good time to bust the dealer, so the officer approaches the home, knocks on the door, and the dealer answers. The officer explains the situation and says, “I’m asking for consent to search your house. If you don’t consent, I’ll go apply for a search warrant because I think I have probable cause. So, can I search?” The dealer says yes, but later argues that his consent was not voluntary and that he merely acquiesced given the threat of the warrant. What’s the law?

Steve Bannon, former aide to President Trump, faces sentencing today on two misdemeanor counts of contempt of Congress. The charges arise from his failure to respond to a subpoena from the House Select Committee to Investigate the January 6^th Attack on the United States Capitol. There are two counts because Bannon neither (1) provided documents nor (2) appeared to testify. There are two major issues for the sentencing judge. The first is what sentence to select. As is routine in federal court, a probation officer has filed a report that includes a calculation of the applicable sentencing range under the advisory federal sentencing guidelines. The report concludes that the proper range is 1 to 6 months in prison. The government is asking for 6 months, while Bannon is asking for probation. The second issue is whether to delay the effective date of any sentence pending Bannon’s appeal. The planned appeal concerns whether Bannon should have been allowed to introduce evidence that he relied on the advice of his lawyers in declining to respond to the subpoena and therefore lacked the requisite mens rea for the offense. Pundits seem to believe that the judge may grant a stay pending appeal, but we’ll know for sure shortly. CNN has a primer here. Keep reading for more news.

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on October 18, 2022. 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 some states, when an officer conducts an investigative stop, the person stopped is legally required to identify himself or herself. For example, Utah Code § 77-7-15 provides that an officer may “may demand the individual’s name, address, date of birth, and an explanation of the individual’s actions.” Stop and identify statutes were generally deemed constitutional in Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177 (2004), but North Carolina has never adopted one. Did a recent decision by the Court of Appeals turn North Carolina into a “stop and identify” state anyhow?

This post summarizes criminal decisions published by the Fourth Circuit Court of Appeals during September 2022. Cases of interest to state practitioners are summarized monthly. Previous Fourth Circuit case summaries are available here.

Last week, President Biden issued this proclamation effectively pardoning “all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana” in violation of federal law, including the laws of Washington, DC. It seems that no one will be released from prison as a result, as no one is in federal prison solely for marijuana possession, and marijuana possession has been permitted under DC law since 2014. However, the US Sentencing Commission’s analysis reveals that over 6,500 US citizens, and over 1,000 legal permanent residents, will have previous federal convictions wiped away under the pardon proclamation. I could not find a similar analysis of the effect of the pardon on DC convictions.

Of course, the vast majority of convictions for marijuana possession take place in state court. Here in North Carolina, there were almost 2,000 convictions for simple possession of a Schedule VI controlled substance last year alone. According to WCNC, Governor Cooper supports President Biden’s issuance of the blanket pardon. The Governor has said that “simple possession of small amounts of marijuana should not be a crime” and that he has “asked [his] lawyers to examine North Carolina law regarding simple possession of marijuana convictions and pardons to determine if there is action we can and should take.” If the Governor does take any action, we will of course cover it here. Read on for more news.