Last week, in Part I of this series, I discussed whether having a drug dog sniff a vehicle is a search if the drug dog might alert upon smelling hemp, a substance that is legal to possess. Today’s post focuses on what may be an even more significant question: if a dog alerts, does the alert provide probable cause to search? Continue reading
Tag Archives: probable cause
The Supreme Court of the United States has held that trash left for collection at the curb is not subject to a reasonable expectation of privacy and therefore may be searched by the police without a warrant. See California v. Greenwood, 486 U.S. 35 (1988). So-called “trash pulls” are now a routine feature of drug investigations. When officers find drugs, drug residue, drug paraphernalia, or other indicia of drug activity in the trash, does that provide probable cause to support the issuance of a search warrant for the associated residence? Continue reading →
It’s been nearly a year since I’ve written about cannabis issues in the state. Many of the issues I’ve discussed here before remain unresolved, but there has been recent legislation and a new case impacting this area. This post examines the current state of the law on hemp and marijuana. Continue reading →
Category: Crimes and Elements, Search and Seizure, Uncategorized | Tags: 90-94, cannabis, delta-8, delta-9, drugs, hemp, marijuana, probable cause, state v. highsmith, THC
On Thursday, June 4, 2020, the North Carolina General Assembly passed S.B. 315, referred to as the State Farm Bill, which was subsequently signed into law by the Governor. The bill was pending all last session and stalled, allegedly over a dispute about how to treat smokable hemp. As I understand it, the bill originally intended to clarify that hemp in all forms (including smokable hemp) was legal (here is an earlier version of the bill taking that approach). After hearing objections from law enforcement and prosecutors (as detailed in the SBI memo on the subject), the proposed bill was changed to ban smokable hemp and regulate the rest of the hemp industry in a variety of ways. When the bill was last being discussed in the news, the dispute at the General Assembly had apparently narrowed to when the smokable hemp ban was to kick in. But, the bill never passed last session, and we were without a Farm Bill until this month. So, what big changes does the bill have in store for hemp in North Carolina? Continue reading →
Category: Crimes and Elements, Evidence, Search and Seizure, Uncategorized | Tags: cannabis, CBD, drug identification, farm bill, hemp, marijuana, probable cause, SB 315, SB 352, THC
The advent of cannabis legalization across the country has led to a proliferation of new types of cannabis products. There are skin patches, food and drinks (for humans and pets), vaporizer or “vape” cartridges (or “carts”), and different concentrate or extract products (“dabs”, “wax” or “shatter”, among other names). [Click that last link and scroll down to see a chart listing the different forms of extracts and their names.] The products can be made from lawful hemp, or from illegal marijuana alike. The illegal versions have found their way into North Carolina, and questions abound regarding how to handle these cases. The questions most commonly involve wax and cartridges, so this post takes a look at the issues surrounding those cases (leaving the skin patches and edibles for another day). Continue reading →
Category: Crimes and Elements, Search and Seizure | Tags: cannabis, cartridges, carts, CBD, concentrates, dabs, extracted resin, hemp, isolated THC, marijuana, probable cause, shatter, THC, vaping, wax
The question in the title of this post is an oversimplified version of the issue addressed by the court of appeals last week in State v. Bailey, __ N.C. App. __, __ S.E.2d __, 2019 WL 3925864 (Aug. 20, 2019). But it isn’t oversimplified by much, and the appellate division may be inching closer to answering the question in the affirmative. Continue reading →
Category: Search and Seizure, Uncategorized | Tags: bailey, court of appeals, nexus, probable cause, search warrants
What’s the most inconsequential criminal offense in North Carolina? My personal favorite is sale of immature apples, a Class 3 misdemeanor under G.S. 106-189.2. But take a look at the list of Class 3 misdemeanors compiled by the Sentencing Commission and make your case in the comments.
Whatever your answer, now consider this: could a court properly issue a search warrant if there were probable cause to believe that evidence of a very minor crime was in a person’s home? Suppose that a sheriff’s office receives a report that a vendor is selling immature apples at a farmers’ market. A deputy applies for a search warrant for the home of the vendor in question on the basis that she likely has receipts and other evidence of the crime in her house. May a judicial official issue the warrant? Or are there some offenses that are so minor that the “cure” of the search warrant is worse than the “disease” of allowing the crime to go unpunished? Continue reading →
Category: Search and Seizure, Uncategorized | Tags: fourth amendment, minor offenses, probable cause, reasonableness, search warrants
It is settled law that the police may rummage through a person’s trash once it is put out to the curb for collection. “Trash pulls” are a routine part of drug investigations, where sufficient evidence of drug activity found in the garbage may support a search warrant for the associated residence. But how much evidence is enough? For example, if a person’s garbage contains the remains of a single marijuana cigarette, does that provide probable cause to believe that further evidence of drug activity will be present inside the house? Continue reading →
Easy Come, Easy Go: Legislature Removes Affidavit Requirement for Citizen-Initiated Criminal Process
About a year ago, I wrote this post, discussing what was then a new provision in G.S. 15A-304(b): “[A]n official shall only find probable cause based solely on information provided by a person who is not a sworn law enforcement officer if the information is provided by written affidavit.” This year, the General Assembly reversed course and removed the affidavit requirement. Continue reading →
Category: Procedure, Uncategorized | Tags: affidavit, arrest warrants, citizen initiated criminal process, legislation, probable cause, warrants
Suppose that Officer Oxford is investigating a murder. Oxford believes that Steve Smith is the killer, and that the murder weapon is in Smith’s house. Oxford approaches Magistrate Martin with a search warrant application. The heart of the application is Oxford’s sworn affidavit, which lays out the evidence establishing probable cause. G.S. 15A-245(a) provides that “[b]efore acting on the application, the issuing official may examine on oath the applicant.” Should Magistrate Martin swear Oxford and ask Oxford to explain the case? Or should Martin ask Oxford to sit quietly while Martin reviews the written application? Continue reading →
