The Fourth Circuit Court of Appeals, on a rehearing of a case en banc, held in United States v. Robinson, 2017 WL 280727 (Jan. 23, 2017), that an officer had the authority to conduct a frisk of a lawfully-stopped person whom the officer reasonably believed to be armed with a concealed firearm, regardless of whether the person may have been legally entitled to carry the firearm. This post discusses the ruling and its possible influence in the development of the law of frisk in North Carolina state courts. [For those who received my summary of this case as a subscriber to the criminal law listserv, this is the same summary but with the addition of an analysis and comment section at the end of this post.] Continue reading
Tag Archives: robinson
Sometimes a legislature enacts a statute that has consequences beyond the direct impact of the statute’s provisions. West Virginia’s statute allowing the carrying of a concealed weapon with a permit may be such an example, based on the February 23, 2016, ruling of the Fourth Circuit Court of Appeals in United States v. Robinson. The court ruled that a West Virginia officer did not have reasonable suspicion to conduct a frisk because there was insufficient evidence of dangerousness, relying in part on a person’s right in West Virginia to carry a concealed weapon with a permit. And this ruling may impact cases in other states, such as North Carolina, that have a statute similar, although not identical, to West Virginia’s. This post discusses this ruling and its potential impact in North Carolina state courts. Continue reading →
This blog post is divided in two parts. This is Part II. Part I was posted yesterday. That post offered a general introduction, defined a strip search, and discussed the legality of consent searches involving strip searches. This post discusses the legality of nonconsensual strip searches. As mentioned in Part I, strip searches at jails and prisons are discussed here by Jamie Markham and are not the subject of these posts.
North Carolina appellate cases. These cases are discussed in chronological order because they sometimes build upon or distinguish prior cases. The facts in strip search cases are often critical to a court’s ruling, and because of space limitations not all the pertinent facts can be included here, so the reader will need to read the cases to gain a better understanding of the rulings.
The North Carolina Court of Appeals in State v. Smith, 118 N.C. App. 106 (1995), ruled that a search was unreasonable under the Fourth Amendment. However, the dissenting opinion disagreed, and the North Carolina Supreme Court in a per curiam ruling without an opinion, 342 N.C. 407 (1995), reversed the court of appeals and adopted the dissenting opinion, thus upholding the search. Officers had probable cause to believe that the defendant possessed cocaine and specific information that the cocaine would be concealed in or under his crotch. Based on these facts, the dissenting opinion stated that the officers had authority to make a warrantless search of the defendant, including his crotch area, after the officers had stopped the defendant in his vehicle. While blocking the defendant from being seen by the public, an officer pulled the defendant’s underwear down and removed a paper towel that contained cocaine. The opinion noted that the officer took reasonable precautions to prevent public exposure of the defendant’s private areas.
In State v. Johnson, 143 N.C. App. 307 (2001), officers had a search warrant to search a male defendant and his apartment for crack cocaine. The officers required the defendant to remove his clothes and move his genitals and spread his buttocks to exhibit his anal area. The officers saw a piece of plastic protruding from his anus. The defendant removed the package at their request; it contained individually packaged bags of crack cocaine. Two male officers searched the defendant in his bedroom, and they did not touch him. The court upheld the search. Note that in this case the defendant was specifically named in the search warrant as a person to be searched; the court’s ruling may not have upheld the strip search otherwise unless the officers had a basis for believing that illegal drugs or other contraband were concealed in his private areas.
In State v. Battle, 202 N.C. App. 376 (2010), officers received a tip from a confidential informant that three named people were driving to another municipality to obtain cocaine and transport it. After stopping the vehicle, officers searched two male passengers and did not find any illegal drugs. The third passenger, a female, was strip searched by a female officer at the roadside between the vehicle’s open doors—in daylight hours with pedestrians and vehicles in the immediate vicinity and a male officer standing close by with a Taser. The search included pulling her underwear out from her body, which resulted in the discovery of a folded five dollar bill and a crack pipe. The court stated that for a roadside strip search to be constitutional, there must be both probable cause and exigent circumstances to show that some significant governmental or public interest would be endangered if law enforcement officers were required to wait until they could conduct the search in a more discreet location. The opinion concluded there were not exigent circumstances in this case. Although the opinion for the court was that of only one judge of the three-judge panel, later cases of State v. Fowler and State v. Robinson, discussed below, have recognized the opinion as a binding precedent. In addition, Robinson limited the requirement of exigent circumstances for roadside strip searches only to cases in which officers lack a specific basis for believing that illegal drugs, weapons, etc. are located in a suspect’s underclothing.
In State v. Fowler, ___ N.C. App. ___, 725 S.E.2d 624 (2012), the court upheld a strip search after a vehicle stop was supported by probable cause based on an informant’s information that the defendant would be carrying 3 grams of crack cocaine. A consensual search of the defendant’s vehicle produced marijuana but no cocaine. Because the search did not produce the cocaine, the court concluded that the officers had probable cause to believe that the defendant was hiding the drugs on his person, and exigent circumstances supported the search. An officer knew that the defendant had prior experience with jail intake procedures and that he could reasonably expect that the defendant would attempt to get rid of any illegal drugs before getting to the jail. The strip search occurred in a dark area away from the traveled roadway, with no one other than the defendant and the officers in the immediate vicinity. The trial court had found that the searching officer did not pull down the defendant’s underwear or otherwise expose his bare buttocks or genitals—the search of the underwear was done with the officer’s hand. No females were present or within view during the search.
In State v. Robinson, ___ N.C. App. ___, 737 S.E. 2d 712 (2012), the court upheld a strip search. Crack cocaine was found in a car in which the defendant was a passenger, and the defendant possessed a lot of cash. An officer felt something hard between the defendant’s buttocks during a weapons pat down. Based on his training and experience the officer inferred that the defendant may have been hiding drugs in his buttocks. The court found that the officer had an ample basis to believe that the defendant had contraband beneath his underwear and reasonable steps were taken to protect his privacy: the defendant was positioned between a rear door and passenger seat and the officer pulled the waistband of the defendant’s pants and looked inside the rear of the pants, and no one else was present. The court limited Battle’s requirement of exigent circumstances for roadside strip searches to those in which officers do not have specific a specific basis for believing that illegal drugs, weapons, etc., are in a suspect’s underclothing. (Note: There was a dissenting opinion in this case, the defendant filed a notice of appeal to the supreme court, but later withdrew it.)
In State v. Johnson, ___ N.C. App. ___, 737 S.E. 2d 442 (2013), the court ruled that probable cause and exigent circumstances supported a roadside search of the defendant’s underwear for drugs that was conducted after a vehicle stop. It also ruled that the search was conducted in a reasonable manner. There was probable to search because the defendant smelled of marijuana, a drug dog had alerted to the driver’s seat, and during a pat-down the officer noticed a blunt object in the inseam of the defendant’s pants. The officer placed the defendant on the side of his vehicle, with the vehicle between the defendant and the travelled portion of the highway. Other officers stood around the defendant to prevent passers-by from seeing him. Between the defendant’s two pairs of underwear (outer pair of boxer briefs and inner pair of compression shorts) the officer found a cellophane package containing several smaller packages. The court noted that narcotics can be easily and quickly hidden or destroyed, especially after a defendant has notice of an officer’s intent to discover whether the defendant possessed them.
Factors to consider concerning the lawfulness of a strip search. Based on these cases, below are some of the factors to consider when deciding the reasonableness of a strip search under the Fourth Amendment, although any single factor is not necessarily dispositive.
- Did officers have exigent circumstances to conduct a roadside strip search, as opposed to conducting the search in a nonpublic area? But note that exigent circumstances is only required for a roadside strip search (under State v. Robinson) when officers lack a specific basis for believing that illegal drugs, weapons, etc., are present in the suspect’s underclothing.
- Did officers have a specific basis for believing that illegal drugs, weapons, etc., were hidden in the suspect’s underclothing?
- What efforts were made by officers to shield the suspect from public view and generally to protect the suspect’s privacy?
- Was the search conducted by an officer or officers of the same sex as the suspect and away from the view of officers of the opposite sex?
- How intrusive was the search and was it conducted in a reasonable manner?
- If the search was conducted during the execution of a search warrant, was the suspect named in the search warrant as a person to be searched, and if not, was there a basis for believing that the object of the search was in the suspect’s underclothing?
Category: Search and Seizure, Uncategorized | Tags: battle, fourth amendment, fowler, johnson, robinson, Search and Seizure, strip search
Last Friday, Cumberland County Senior Resident Superior Court Judge Greg Weeks issued the first merits ruling on a claim under the Racial Justice Act (“RJA”), G.S. 15A-2010 et seq. Judge Weeks’ order, which vacates the death sentence previously imposed on Marcus Robinson, is here. It’s 168 pages long, so I suspect most people haven’t read the whole thing. Maybe you’ve read a newspaper article about it, like this one from the News and Observer, or this one from the New York Times. But maybe you’ve been waiting to get the skinny from this blog. Here’s what happened.
In 1991, Robinson killed Erik Tornblom. Robinson was tried capitally in 1994, and was convicted and sentenced to death. His direct appeal and collateral attacks were generally denied. When the RJA became law, Robinson filed for relief under the Act. Earlier this year, Judge Weeks heard evidence on one aspect of Robinson’s RJA claim: his contention that “[r]ace was a significant factor in decisions to exercise peremptory challenges during jury selection.” (The Act also allows defendants to claim that the race of the defendant or the race of the victim influenced the decision to seek or to impose the death penalty. I believe that Robinson also made claims under those provisions of the Act, but those claims weren’t heard by Judge Weeks.)
The order begins by summarizing the testimony presented by the parties at the hearing. The key evidence for Robinson was a study conducted in part by, and the testimony of, Dr. Barbara O’Brien, a law professor at Michigan State University. In a nutshell, the study examined jury selection in 173 North Carolina capital trials resulting in death verdicts. O’Brien and her colleagues looked at each juror the state had an opportunity to strike; identified the juror’s race; noted other factors that might be relevant to the prosecutor’s decision regarding the juror; and recorded whether the state struck the juror. The study concluded that racial discrimination pervaded jury selection in capital cases in virtually every county, prosecutorial district, and judicial division in the state, as well as in the state as a whole. The state’s presented testimony from Dr. Joseph Katz, a retired business professor from Georgia State University, who was critical of Dr. O’Brien’s methodology but who did not himself conduct a competing study. The order also discusses a number of other witnesses called by the parties, and explains that Judge Weeks generally disallowed testimony from several judges who had presided over capital trials in Cumberland County.
The order then proceeds to interpreting the RJA. Judge Weeks’ interpretation of the relevant portions of the Act is as follows:
- The Act provides for relief if the defendant can show that race was a “significant factor” during jury selection or in the decision to seek or impose the death penalty. It doesn’t define “significant factor.” The order states that significance will be interpreted to mean (1) statistically significant, in the sense that the results are less than 5% likely to be the result of chance (statisticians everywhere are probably cringing at that way of expressing statistical significance, but hey, I’m a lawyer, not a statistician), and (2) practically significant under the four-fifths rule used by the EEOC in employment discrimination cases. (“Under this basic rule-of-thumb, disparate impact will be presumed if the minority’s success rate under a challenged employment policy is equal to or less than four-fifths (80%) of the majority’s success rate.”)
- The order states that the Act provides for a burden shifting approach: “[T]o establish a prima facie case, a defendant may introduce statistical proof of unadjusted data demonstrating significant racial disparities in prosecutors’ peremptory strikes. If a defendant establishes a prima facie case that race was a significant factor, it becomes the State’s burden of production to actually rebut the defendant’s case, or to dispel the inference of discrimination, not merely advance a non-discriminatory explanation.”
- The order concludes that the RJA does not require a showing of intentional discrimination. Rather, relief is required even if prosecutors discriminated subconsciously.
- The RJA does not require that a defendant show prejudice or an impact on his particular case: “The Court likewise holds that the plain words of the RJA demonstrate the absence of any requirement to prove race was the basis of the decision to seek or impose a death sentence in a defendant’s particular case. In clear and unambiguous terms, the RJA permits showings of patterns of discrimination by county, district, division, and state.”
Next, the order makes findings of fact concerning the evidence presented. Principally, it states that the court “finds the [O’Brien study] to be a valid, highly reliable, statistical study of jury selection practices in North Carolina capital cases between 1990 and 2010. The results of the unadjusted study, with remarkable consistency across time and jurisdictions, show that race is highly correlated with strike decisions in North Carolina. The adjusted, regression results show that none of the explanations for strikes frequently proffered by prosecutors or cited in published opinions, such as death penalty views, criminal backgrounds, or employment, diminish the robust and highly consistent finding that race is significantly correlated with strike decisions in North Carolina.”
As to the “unadjusted” results, the study concluded that “prosecutors statewide struck 52.6% of eligible black venire members, compared to only 25.7% of all other eligible venire members,” and that similar disparities existed in the various smaller political subdivisions listed in the Act. The court ruled that “[b]ased solely upon the unadjusted analysis of the decisions to peremptorily challenge black venire members, the Court finds that race was a materially, practically and statistically significant factor in decisions to exercise peremptory challenges during jury selection by prosecutors” statewide and in smaller political subdivisions. The court further found that the unadjusted disparities supported an inference of intentional discrimination.
The order then discusses the efforts made in the study to control for the influence of non-racial variables that may be correlated with race, such as attitudes about the death penalty. The order undertakes a rather technical discussion of cross-tabulation and regression analysis, but the bottom line is that the study concludes that non-racial factors cannot explain the disparity in jury selection procedures, and Judge Weeks agreed that the study properly controlled for such factors. He generally rejected the state’s argument that the study did not include all the relevant variables, and that the regression analysis could be run differently.
The order also addresses several alleged errors that the state identified in coding the data included in the study. Judge Weeks agreed with the defense that most of the alleged errors were actually not errors, and that correcting the genuine errors did not change the results.
The court also rejected the state’s suggestion that any discrimination by prosecutors against black prospective jurors was counterbalanced by discrimination by defense attorneys against white prospective jurors. The court ruled that even if the juries actually seated were representative of the jury pools from which they came, discrimination by the state violates the RJA. In an interesting aside, the court suggested that any racial discrimination against white prospective jurors by defense attorneys might actually provide another basis for a defendant to seek relief under the Act.
The court also considered nonstatistical evidence of discrimination presented by the defense, including evidence that racial discrimination has a long historical legacy in the state; that people generally are susceptible to unconscious biases; that, in certain specific instances, prosecutors struck jurors without a clear non-racial reason; and that, in the court’s view, prosecutors had not conducted appropriate trainings regarding how to conduct jury selection in a non-discriminatory manner.
Summing up, the court found evidence of racial discrimination in jury selection statewide and at the level of the judicial division and the county. (Cumberland County is its own prosecutorial district.) Further, although the court stated that such findings were not required under the Act, it found that such discrimination was intentional and that it occurred in Robinson’s case. Based on those findings, the court ordered that Robinson be re-sentenced to life without parole.
The state has announced that it plans to appeal. Let me end by noting that I don’t think that this decision has any binding force with regard to the 150 or so other inmates who have filed claims under the Act. Even though the vast majority of the court’s conclusions aren’t specific to Robinson’s case, neither res judicata nor collateral estoppel allow those conclusions to control the outcome in other cases, because each case has a different defendant and so the element of identity of parties is not present. (Update: a helpful reader pointed me to Thomas M. McInnis & Assoc. v. Hall, 318 N.C. 421 (1986), and Rymer v. Estate of Sorrells by and Through Sorrells, 127 N.C.App. 266 (1997), which indicate that the requirement of identity of parties has been removed as to defensive and perhaps at least some offensive uses of collateral estoppel. So there may be room to argue that the ruling in the Robinson case has a broader impact. It should be obvious by now that I’m not the world’s leading expert on collateral estoppel, so I won’t offer an opinion on the merits of such an argument.) Of course, depending on how it is written, an opinion by the appellate courts could have a statewide effect. Stay tuned.
