[00:00:00.875] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief. I'm your host, Phil Dixon. I'm here in the studio with my studio technician, Paul Bonner. Big thanks to Paul as always. This is, of course, a podcast devoted to covering criminal law news and developments across North Carolina and beyond. As usual, we have a ton of cases to talk about and cover, so I'm going to dive right in. I've got a lot of search and seizure stuff to cover today, but I really wanted to start with this Radomski case, State v. Radomski. This is a Second Amendment challenge to our possession of weapon on educational property statute. Regular listeners know we've mentioned Bruin before. This is, of course, New York Rifle and Pistol Association versus Bruin, a big Second Amendment case that came down from the U.S. Supreme Court in 2022. Bruin sets a new sort of standard for the Second Amendment whereby if a law or regulation by its text affects conduct covered by the Second Amendment, that being the individual right to keep and bear arms, It's presumptively unconstitutional. That's the rule Bruin lays down. Conduct that flies in the face of what is protected under the Second Amendment, that right to possess and keep arms, is presumptively unconstitutional. The state is required to come forward with some evidence that the challenged regulation or law has a historical analog. in our tradition, meaning, in effect, as I read it, at the time of the founding, at the time that the Second Amendment was passed, was there some comparable prohibition or limitation on gun rights? Courts all over the country have been struggling with how to apply this and how far it should go. I think it raises lots of interesting questions about lots of our laws, and we're seeing those challenges brought all across the country. I know we've talked a little bit about some of them before on this podcast. My colleague Jeff Welty has blogged a little bit about this. But, you know, that's I think the biggie to keep in mind here is if a law affects your Second Amendment rights, it's presumptively unconstitutional. And it's the government's job, it's their burden to come forward with evidence showing it actually, you know, passes constitutional muster because this is like, this is akin to a regulation or limitation that existed at the time of the founding. This case, Radomski, occurred right here in Orange County in Chapel Hill. The defendant was unhoused. He was living out of his car. He'd recently had a kidney shunt put in. I'm not 100% clear on what that is, but some kind of procedure with his kidney sounds relatively serious, and he was having some issue with it. And he drove himself to the Chapel Hill University Hospital. Now, for those of you that don't know, that is part of campus. It is adjacent to sort of the edge of campus. And it's sort of between a bunch of healthcare buildings. The public safety is nearby. A lot of parking decks in the area. The football stadium is not too far away. The basketball arena, the Dean Dome, is sort of down the street and to the right a little bit. And there are dorms further down the street. My dorm, when I stayed as a freshman at Carolina Hinton James, is sort of right down the road. But this is a sort of odd, say, sort of an edge of the campus. And, of course, there's signs everywhere you go on campus that say, on the hospital grounds, excuse me, you know, identifying stuff as this is the property of UNC. Hey, you're on educational property. I think I've even seen, you know, gun-free zone signs around the hospital grounds because it's considered part of the campus. And we have a state law. It's GS-14-2. 269.2 that bars possession of weapons on educational property. And the statute defines educational property really very broadly to include any property owned or used by the school. And this applies to both elementary, high school, and college campuses. Any educational property, a very broad definition of educational property. This man, again, you know, living out of his car, all of his possessions are in his car. That includes several rifles and a shotgun, at least. I think it was five long guns he had. He's apparently in his car, maybe about to go in and seek treatment at the hospital. The police get a call about a suspicious vehicle and they respond, finding this man in his car. And the officer engages him and asks him several times, you know, what are you doing or what are you here? Do you have any weapons in the car? The man repeatedly denies having weapons in the car, but the officer continues to ask. And eventually the man admits, yes, I do have some guns in the car. He is charged with felony possession of a firearm on educational property. Of course, it's a misdemeanor to have some other kind of weapon like a knife, say, but it's a felony if it's a gun. And that's what Mr. Radomski was charged with. he's convicted at trial. There is apparently no constitutional argument made at trial. And that itself I think is significant here because normally that means your constitutional argument is waived on appeal. You cannot argue, you generally cannot argue any ground on appeal or that you didn't raise at trial. That's all the more clear when we talk about constitutional challenges, constitutional arguments. We talk about preservation on this show quite a bit, and I just would remind folks, you know, you've got to be proactive about thinking outside the box, bringing these kinds of challenges, especially, I think, when they potentially implicate Second Amendment rights under Bruin, because this is a rapidly evolving area. Mr. Radomski is convicted, his appellate attorney asked the court to consider the second amendment argument. And what I thought was notable is that the court invoked a special rule of appellate procedural rule two to suspend the normal rules of preservation and to consider this challenge. So just the fact that the court was willing to do that, I think is significant because they easily could have disposed of the case by saying, That's an interesting argument. You failed to raise it at the trial court, and we're not going to consider it on appeal. That's how the situation would normally be handled by the appellate division. But the court does have the discretion to invoke Rule 2 and suspend the normal preservation rules, and that's what they did. They said, we want to consider this argument to prevent what is potentially a manifest injustice. You know, while we're on this preservation point quickly, don't count on that. Again, I think, you know, we saw this a lot with the satellite based monitoring cases back in the day in light of the Grady decision by the U.S. Supreme Court. All these Fourth Amendment challenges were being brought in satellite based monitoring cases. And sometimes the argument wasn't raised at trial. It would be raised on appeal for the first time. And the court, for a while, occasionally did this. They'd say, well, it's not preserved, but we're going to let you make that argument anyways because this stuff is new. It's still evolving. Word hasn't necessarily gotten out to everybody at the trial level yet. And I think, in effect, that's what we're seeing the court do here is, hey, Bruin's still new. The contours of it aren't clear. It's not obvious that every trial lawyer should have this front of mind. So we'll still reach the merits. But they only did that for so long in the SBM cases. And I think it's likely that the same thing would apply here. You might see it done a couple times. You might see it three or four times. But after they've done that a few times, I think the expectation for practitioners, for defenders, really specifically, is that you know about this and you raise it at the trial court. So don't ever count on getting a Rule 2 invocation from the appellate court because it's generally rare. And I think even when they're doing it for a new and involving area, there's only so long they're going to give you. Getting to the merits, the defendant wins here, and he wins a couple of different ways. Sticking to the constitutional argument, he made two arguments. He said, one, the weapon on campus statute is just facially unconstitutional, and a facial constitutional challenge means that it's unconstitutional in all aspects. It cannot be applied constitutionally to any person under any set of circumstances. In the alternative, he made an as-applied challenge saying, even if the law is constitutional in some applications, it would be unconstitutional to apply it to me on these facts. The court bit on that second one. They said, you know, we agree this is an unconstitutional application on these facts to Mr. Radomski. And in light of our decision there that it's unconstitutional as applied, we're not going to consider the facial challenge. So, you know, one one point, one takeaway here is that the facial challenge to this statute weapon on campus still remains as a court is not squarely rejected it either way. But as we'll talk about, I think, you know, it's likely to me that the court would properly deny that challenge because there are likely still very much constitutional applications of this law. I mean, Bruin itself and I think Heller before it, City of Chicago v. McDonald or McDonald v. City of Chicago, all of these cases, I believe, you know, they mention we've always approved a practice of disarming felons or dangerous people. We've always approved of restrictions on carrying a gun in a sensitive place. Bruin, I believe, talks about sensitive places such as schools, courtrooms, legislative buildings, offices, polling places. These are places where historically carrying guns could be restricted. So, even Bruin recognized keeping guns out of schools, for instance, that's probably okay. And again, I think that's dicta within that opinion, but I think it's likely persuasive dicta. And I think that's really where we land here. I mean, the court looked at these facts and said, look... This was the man's home. That car was the man's home. That's where he's living. That's the only place he could have stored his guns. He came to the hospital to get treatment. He left his guns in his car. And this is maybe the most important part. This was the parking lot of the hospital. Yeah, there was a few signs up and there was some testimony about that. I think the officer said, you know, there really weren't any signs nearby where this man was parked. But you drive past some signage, you know, pulling into the parking lot. There are signage. There's signage in various places. If you look around or walk around a few feet, you're going to run into a sign that identifies the hospital as, you know, UNC property. But they said, you know, this falls within the technical definition of educational property under the statute. And indeed, it is technically UNC property. But this is not the kind of sensitive place that we think Bruin was referring to when talking in that approving language of gun prohibitions in sensitive places. And that's an interesting line to draw I went through that detailed description of where this parking lot is situated in part to give you that context. It's really not near classroom buildings, unless you're counting medical school and clinic kind of training places. The court said, you know, there wasn't really evidence here that he saw the signs. Some signage is not enough. These restrictions on guns in sensitive places are probably okay under Bruin. We really mean the campus, like where the students are. And that's not the hospital parking lot, whatever else it is. It's a fairly short discussion. So, I mean, some of this I'm filling in with what, you know, my interpretation of how the court was thinking this through. But that's where they landed was it's unconstitutional as applied to him when he's living out of his car, the gun stayed in the car and he's there for medical treatment and it's at a hospital parking lot that's sort of attached to campus. It is owned by campus, but it is not campus in the sense that, you know, a normal lay person or a college student might conceive of it. It's not the quad, you know, in the middle of campus. It's not the first thing you think of when you think UNC campus or college campus period. And I have to say, I saw this all the time in practice because as folks who know me or regular listeners know, I came up in Greenville, North Carolina in Pitt County, and there's a university there, East Carolina University, go Pirates. I would get this charge from private, I would get hired or appointed to represent clients on this charge under what was really similar circumstances. I mean, ECU owns the hospital now, which is far away from campus. It's another part of the town. you know, there are parking lots up and down major streets in the city where they're university-owned property. Or, you know, the city has bought a restaurant, is in the process of converting it into student housing, and it's a construction site with a parking lot attached, but that's university property. And there might be signs up saying it's university property, but to the average person who's just looking for a place to park or is going to see a loved one at the hospital, or is trying to get a free parking spot to sneak into the baseball game or any of these scenarios, it's not necessarily intuitive that you're on educational property. But folks would bring their gun and an officer would encounter them somehow. They would often unwittingly, I mean, not aware, I think, that it's a crime and just sort of say, yeah, well, I mean, I do have my gun. It is in my glove box or it's in the back. It's in my trunk or whatever. And they'd end up with this felony charge to the credit of the Pitt County DA's office under that elected DA. I didn't have to plead out those clients frequently when it looked sort of like an innocuous mistake. We often were able to negotiate some kind of resolution of the charges whereby the person certainly avoided a felony conviction. And I think in many cases avoided a felony and avoided a conviction altogether. But that's, of course, in the grace of the district attorney and the assistant district attorneys. Had they wanted to prosecute those cases, they certainly could have attempted to bring them to trial or to force a plea of some kind. This case gives us some fodder, gives defenders fodder for this argument that you can't interpret educational property so expansively. And I think that's sort of an unforeseen consequence of this holding. I mean, it sort of depends on where you weigh, how you want to weigh the factors the court pointed to. Perhaps we only get here because this man was homeless and living out of his car. That could be significant, right? If I could have left my guns at home before I went on to campus to get treatment at the hospital, maybe that's the distinction that the court would lay down. But I think you could look at this and say, to the extent that statute, our weapon on campus statute, defines educational property so broadly as any property owned or used by any school system, that it's rarely going to be constitutionally applied when that property is sort of away from what we would normally think of as a sensitive place, a part of the campus, where students are attending school, where classes are being taught. So exactly the kind of situation that I was saying I saw in Greenville, you know, where someone's inadvertently brought a gun onto some random parking lot that's not obviously, you know, in front of a dorm or in front of a classroom building, in front of an administrative building. Those sorts of situations now I think are ripe for this sort of as-applied challenge. I do think other facts may matter. It certainly might have made a difference had he walked into the front door of the hospital carrying his AR-15. I think it was likely important that the guns were in the car. And he wasn't trying to carry them around the grounds. He wasn't acting erratically or suspiciously in any other way. I think there's an argument to be made now that under Bruin and under the Second Amendment, our definition of educational property within the weapon on campus statute is overbroad and it cannot be applied constitutionally to folks when it is really any property that's owned by the school it should be something that can reasonably be considered a sensitive part of a school and this is you know i think much cleaner when we're talking about secondary schools elementary schools high schools they tend to be in sort of more discreet contained units. But a campus like East Carolina or UNC, not just ECU, not just UNC, but many of these campuses, they have property all over town. It's not necessarily contiguous. It's not adjacent to one another. And it's not always obvious. I mean, there is, again, often signage identifying it such that But I don't know that your average person is bothering to read those signs every time they drive across town or stop in a parking lot or pull over on the side of the road to take a phone call. You could inadvertently be on educational property in any of those situations. And to the extent our statute allows possession of a firearm or any weapon to be criminalized under those circumstances, I think every single one of those kinds of cases should be challenged under Bruin. And this argument should be made that, hey, that's not the kind of sensitive place where gun restrictions would be permitted under Bruin. So a real interesting one, and separate from this, separate altogether from this constitutional argument, the court said in the alternative, his motion to dismiss for insufficient evidence should have been granted. The statute says you knowingly possessed a gun on campus. And I think this part of the holding is significant, too, because had you asked me the day before this case, I would have told you. I think the knowingly part really refers to knowing that you have a gun, you know, knowing you're on campus property is likely going to be proved by circumstantial evidence. And, you know, they can you should have you should have known. It was knowable, but you can't claim ignorance that I didn't know. Or maybe you could, but I think it would typically, you know, I would say that's an uphill battle, especially if there's some signs up or there's other circumstances whereby a person should reasonably have guessed that they were on campus. They said there was not enough evidence of that here. The officer said there weren't signs nearby. I mean, there weren't signs immediately before the defendant where he encountered him. There were signs nearby, but not a lot of evidence about that one way or the other. And I think really the court said there was no direct or circumstantial evidence that the defendant knew he was on educational property at all. To the extent that is the square part of the holding where he didn't know, and you have to prove, State, that he knew not only that he had a gun, but that he was on educational property. That's another angle here. That's another potential defense to bring forward, an argument to make to your jury or to your judge at the motion to dismiss stage that knowingly means nothing. He knew not only about the weapon, but that he was on campus. And we're not just going to assume that. Now, this is one I really could see the state Supreme Court wanting to take a bite of. This really just came out, I think, in the last couple of weeks. So it's pretty fresh information. I don't believe we know yet if the state is seeking additional review here. If I recall, too, there was a concurrence, a partial concurrence, where one of the judges on the panel said, you know, I agree this is an unconstitutional statute as applied to Mr. Radomski on these facts. But they disagreed with that knowingly part that the motion to dismiss for insufficient evidence should have been granted for lack of the defendant's knowledge that he was on educational property. Between those two things, you know, the Bruin Second Amendment holding and this knowingly holding, I think that may be something the state Supreme Court wants to weigh in on in no small part, because I think as far as I can tell, you know, this is really our first big Bruin case. It's a significant issue of federal constitutional law. The area, again, is constantly evolving. And I could see the high court wanting to put their stamp of approval or not on the Court of Appeals decision here. I could see them affirming the Court of Appeals, but striking down this knowingly argument. But on the other hand, we saw a few years back, I don't think it's something I've talked about on this show, but I wrote a blog some years ago about a case called State v. Humphreys. In part, it focuses on the willfulness element of resisting arrest and talking about really what is willfulness. It really requires sort of an intention to break the law. It's more than just being aware of it. And that was a really good case for that willfulness element. I think in some ways this mirrors that holding on the knowingly element. It's a pretty good case for knowingly. And if that is the state of mind required for your offense, you might look to this case and look at the knowingly part of the holding and incorporate that into whatever other arguments you might have to defend someone because it's significant. Other Bruin issues are... Popping up all over, we're waiting on a decision from the US Supreme Court in a case called Rahimi about the ban on possession of weapons by a person subject to a domestic violence restraining order. Sounds like Mr. Rahimi will lose that case, if you ask me, just based on the arguments. And I think it's likely to give us some clarity on these. I mean, Bruin, if you look at the holding, it's broad. I mean, it could be read as very, very broad and affecting very many gun regulations and laws. And I think that we may see them cabin that in just a little bit by sort of throwing in a dangerousness standard. Where someone is demonstrably dangerous, that person may be disarmed, consistent with the Second Amendment, consistent with history and tradition. Because Rahimi was a terrible test case for this challenge. He had a long history of really serious violence, really serious erratic behavior. And I believe, you know, this was no, the allegations in the DVPO that he was subject to were quite serious, as I recall. So he faced a lot of skepticism from the court at oral argument. And that decision could come down any day now this summer. But I'm guessing Rahimi does not win his challenge at the U.S. Supreme Court to say you can't apply the ban on possession of weapons by a person under a DVPO to me. Will that be a facial holding or as applied, like we'll have to wait and see? There's another case out of the Ninth Circuit, I think it's Duarte, where the person has a older nonviolent felony conviction. And the Ninth Circuit said it was unconstitutional under Bruin to apply the felon in possession law to him. So despite him being a convicted felon where there was no showing that this person was dangerous, it was inconsistent with our history and tradition. Of gun regulation to subject this guy to criminal prosecution and to bar him from possessing a weapon forevermore because of a nonviolent felony. I think that's something else defenders have to be thinking about, you know, even more common than this weapon on campus charges the firearm by felon charge. And in my experience as a practitioner, most people that get charged with that offense don't have a violent felony on their record. They've got a minor drug felony or they've got a minor theft felony. Sometimes from, you know, ages ago, there is no exception except for very narrow, like securities law crimes in our firearm by felon statute. It doesn't matter if it's violent or not. It doesn't matter how long it's been. I mean, there, there is, technically a process by which you can be restored under state law, but it's not exactly easy or straightforward. And for your typical criminal defendant or typical convicted felon, I think they're unlikely to be... I think we see a whole lot more felony prosecutions and prosecutions for fire by felon than we do petitions to remove the disability under state law. And even then, it's not clear to me that would help you out with federal law that also bans possession of firearm by a felon. But that is to say, we'll get some clarity from the Supreme Court on part of 922G, the federal law that bans firearm by felon and firearm by a whole bunch of categories of people, including this person under a DVPO. We're seeing these challenges about nonviolent older felonies and whether that really can be applied to those folks. We just saw in the past week, I believe it was this week, Hunter Biden was convicted of lying on some applications about his drug use. One of the prongs under 922 that'll disqualify you from gun possession forever effectively is that you're an unlawful user of controlled substances. And you're asked that question on the application to purchase the weapon. Hey, are you an unlawful user of controlled substances? Mr. Biden was struggling with a crack addiction at the time, and he apparently checked no on that box and represented otherwise to the gun dealer that he could lawfully possess the gun and was convicted of both false statements to the gun dealer, making a false statement on the application and illegal possession of the firearm, which he denied. He had for a period of apparently 10 or 11 days before I think his now ex-wife got rid of the weapon. Well, this argument came up in Hunter Biden's trial. He made an as-applied Bruin challenge to this part of 922G that prohibits an unlawful user from possessing a gun. The court rejected that as applied challenge. The court rejected this facial challenge, but told Biden's attorneys, you can make this as applied argument if you're convicted. He was convicted. And I think this motion has yet to be heard. So despite the jury's verdict against Hunter Biden, it may be that the judge finds the statute is unconstitutional as applied to him. But these as applied challenges, really, I think, as you can tell, sort of get into the weeds. They get into the facts a lot. And somebody with like an active crack cocaine addiction, well, that may look a whole lot different from somebody who is, say, using medical marijuana in a medical marijuana state. And believe me, those challenges, too, are being brought. I mean, more than half the states now have some form of legal marijuana. marijuana still remains an illegal controlled substance under federal law. So do all users of marijuana in any states where it's legal under whatever circumstances, you know, legal, medicinal, recreational, is there a difference? Do they lose their Second Amendment rights categorically by using marijuana. That's one of the challenges that's out there now. And one of the big questions is, what does Bruin have to say about that? Is that consistent with our historical tradition and understanding? So it may depend on the drug. It may depend on the severity of the drug addiction. It may depend on what other conduct is attendant to the person who's using drugs. Fascinating, rich area all around. I mean, there's more, but I don't want to just cover the Second Amendment today. But just check it out. Radomsky is how I think it's pronounced. That came out in late or early June of 2024, if I recall. And good one for the defense and for any Second Amendment advocates in terms of both an as-applied challenge to the weapon on campus rule and to the knowledge element of the weapon on campus rule. All right, I know that was an extended discussion. Let's move right along. I hope and expect that I will put out a blog about that case really soon. We talked a little bit in our last episode about recent search and seizure cases in the context of where we are with hemp and marijuana. The court isn't biting very hard on the arguments about the odor, potential confusion between the odor of hemp and marijuana in the search and seizure context. But I did a two part series on those issues. Part one focused on those Fourth Amendment issues, kind of what we talked about last time. And part two focused on evidence challenges that are still sort of hanging out there. I wanted to talk a little bit about that. As we've talked about on this show before, under current law, state be Fletcher. It's a 1988 Court of Appeals case. If an officer is trained and they testify, you know, I know what marijuana looks like. I know what it smells like. They're just allowed to identify it by sight or smell. And I know we've discussed on this show before, you know, is that really does that make sense anymore? The court has acknowledged this potential problem. They put it in a footnote in a case called State v. Highsmith from August 2022 Court of Appeals saying, you know, yeah, hey, we realize that marijuana and hemp look alike and smell alike and you can't tell them apart just by visual ID or looking at it, feeling it, smelling it, seeing it. That's not enough. You really need a lab test, as hopefully all regular listeners know, and you need a special kind of lab test. Got to tell what are the levels of Delta 9 THC because that's the difference. If it's more than 0.3% Delta 9 THC, it is considered marijuana. If it's less, it's considered hemp. None of our crime labs perform this testing. No law enforcement lab does this testing and the state crime lab does not do this testing. They simply test for the presence of marijuana. I have been harking on it for years now, but I think when defenders have a marijuana case, they should be striving to keep out this kind of lay opinion evidence identifying something as marijuana. So, you know, you got to object and say improper lay opinion or improper expert opinion when an officer gets up there and wants to say, in my opinion, we haven't done the testing, but that's marijuana. The argument is under Rule 701, this has to be relevant. It's supposed to be helpful to the fact finder. How helpful is this evidence? How probative of the identity of the substance is that kind of testimony in light of hemp and marijuana issues? So, I think that's the objection to the lay officer identifying something as marijuana is objection, Judge. Under Rule 701, this is not helpful to the jury. There's no way, as the Appellate Division has acknowledged, it's impossible to identify hemp or marijuana by visual inspection or olfactory inspection alone. We still see this coming in all the time. We talked about it before, but due to this really quirky rule in North Carolina, if you don't object, then it's going to be enough to get to the jury. There's a difference between sort of what is sufficient evidence to get to the jury and what is admissible, what is properly admissible. Defenders have to keep it out on admissibility grounds. So you've got to object at the time. You've got to state the grounds for your objection. You've got to renew that objection every time the objectionable testimony is given or referenced. If you don't, The court might agree with you on the back end, like, hey, that wasn't reliable. That shouldn't have came in. That didn't meet the requirements of 701. It wasn't helpful to the jury. But that doesn't matter because you didn't object. And any evidence, whether it's properly admitted or not, whether it is competent evidence or incompetent evidence, that all goes into trial. sufficiency. That all counts for sufficiency. And if there's any evidence, even improperly admitted evidence, that will be sufficient to send it to the jury. Now, if you find yourself in this situation and you're at closing argument, I think it's important to keep in mind, you can still, of course, argue this to the jury. Hopefully you've gotten out something on cross from the officer that There's a certain test that's required to distinguish him from marijuana. You didn't do that testing. So even if their lay opinion does come in, you can sort of raise some challenges to it. And then you can argue to the jury you shouldn't give that opinion any weight. If without an objection, you're never going to win the motion to dismiss for insufficient evidence, at least. And I think really how we win these cases is to keep it out altogether. So that was lay opinions. I think that's typically how officers are identifying this stuff. But let's say that we've got some drug task force guy or drug identification, drug recognition expert, and they want to tender, the state wants to tender the officer as an expert in drug identification or in marijuana and say, In my opinion, you know, I'm familiar with marijuana. In my expert opinion as a drug recognition officer, this stuff is marijuana. Well, I think it's largely the same set of objections, except you're now under 702, Rule of Evidence 702, which is our expert testimony rule. The argument there is that 702 requires that there is the opinion, the expert opinion is the product of reliable methods and principles. The methods and principles were reliably applied to the facts of the case. And this is real science, effectively. There's some basis in objective science for this opinion. The argument is, and I think it may be you need your own expert to come in and convince the judge, this could be done in a 702 hearing pre-trial or in the middle of trial, but the argument is without that chemical analysis, without that proper chemical analysis, that again, no crime lab does, no law enforcement lab currently does, only private labs do. It's not a reliable opinion, whether it's coming from a trained officer as a lay opinion or it's coming as an officer sworn in as an expert with extensive experience with marijuana. They still can't tell what it is without a proper chemical analysis. So whether the officer is offering it as a lay opinion or an expert opinion, I think you can say no. This fails the Daubert standard. This opinion is not the product of reliable methods or principles, certainly not the product of reliable methods and principles being reliably applied in this case because it's, in effect, an impossibility. If the state wants to continue prosecuting marijuana cases, they need to prove whether it's one thing or the other. And indeed, in my blog, I found a case from... I don't remember. Maybe it's Indiana. Northeast third is the citation. But Fritz v. State and the citations in my blog post, that's where they've come down. They've said, you know, hey, state, if you don't put on evidence of the Delta nine concentration specifically, then we find the evidence is insufficient. Now, that's not going to ever exactly translate in North Carolina because, again, we have this weird rule about sufficiency. And if any evidence comes in, even if it's improperly admitted, it counts as sufficient evidence. So defenders, you know, the burden's on you to keep it out in the first place or at least to preserve the evidence challenge in trying to keep it out. and tee this up for the Court of Appeals because unlike the search and seizure cases, we have yet to see them really weigh in on this. The closest they've come is to say there might be some problems with this, but the defendant didn't raise it and it's not preserved and we're not going to consider it. So I really am anxious to see these questions of admissibility of lay and expert opinion identifying something as marijuana without a proper chemical analysis I want to see that get up before the Court of Appeals with either one of these situations, lay testimony or expert testimony. Again, it may be helpful to file a pretrial motion and limine asking the judge to address this stuff beforehand or to hold a hearing and decide. Are they going to be allowed to testify to this? If so, how far are they going to be allowed to go? I mean, I know we've mentioned it before, but there's one case where an officer said, I can smell the difference in THC levels. Well, THC doesn't have a smell, so that's not possible. but no objection from the defense lawyer in that case. And it came in and it counted as part of the sufficiency of the evidence calculus. Certainly with that kind of testimony, you got to object and say, I want to be heard. That's not a reliable opinion. I don't think the jury should hear it. But if they do, of course, you can still argue the merits about don't give it any weight. Finally, when they sometimes go get a proper lab, which again, it means sending it to a private lab. I talked to the folks at the State Crime Lab now, and they said, we tell prosecutors that are trying to send us a pot case, don't send us a pot case. We can't do the proper testing. All we can tell you is whether there is some Delta-9 present or not. And Delta-9 is, of course, present in both things. And now, apparently, their lab reports have that disclaimer on the face of them because they still issue a lab report if they're asked to that says, we looked at it, we visually examined it, looked at it under a microscope, and we tested it for the presence of Delta 9. We found Delta 9. We've identified it as marijuana. but hemp is legal under the Farm Bill and under state law, and we didn't test the levels of Delta-9 THC, so we really can't be sure whether it is marijuana or not. Not all law enforcement crime lab reports make that disclosure or make it so plainly, but that is the case. That is the state of things. What does the state do? Well, if they've got, you know, say a tractor trailer full of marijuana, suspected marijuana, they really want to prosecute this person. They're taking it seriously. The prosecutor knows about these issues and is concerned about a savvy defense lawyer catching him or her unprepared on it. They send it to a private lab. That's a good start because they can actually tell you the actual levels of Delta 9 THC. But there's still potential issues with the lab result. And I think if you're getting one of those labs from the private lab, folks should consider contacting Sarah Olson at Indigent Defense Services. Sarah, of course, is our Forensic Resource Counsel. You can send it to me. I can talk with you a little bit about it, but ultimately I'm going to send you to Sarah. both for her expertise in interpreting lab results and for her to potentially refer you and connect you up with an expert. I mean, among many amazing things that she and her website, forensicresources.org, do is to provide a list of relevant experts in all sorts of different forensics fields. And I say all this because it's possible, depending on what kind of testing is used when you are testing suspected marijuana, you can actually convert what are otherwise legal cannabinoids into Delta-9. So stuff that wouldn't count normally can suddenly, you can increase the concentration of Delta-9 through the very process of testing it. I'm not a forensic chemist. I'm not. This isn't my background, but, you know, obviously I think and read about this stuff a lot. And as I understand it, you know, a standard way of testing drugs is the mass spectrometer gas chromatography test where it's sort of spun in a centrifuge to break out the compounds. And that doing that test heats the product. And when that product is marijuana, again, it'll convert what other it can, I believe, convert. what would otherwise be legal parts of the plant into illegal Delta-9. So you'd wanna know, did they do liquid chromatography or did they do this gas chromatography, mass spec test? And these private labs are not the state crime lab. They're not a public body. They're not affiliated with law enforcement. It's unclear to me how much of their operations are a black box. I mean, are we able to get all their standard operating procedures? Are we able to get the accreditations and, you know, training histories of the analysts? There may be, you know, potential discovery issues with the use of a private lab that we don't necessarily have when it's coming from a state crime lab or we've had those fights already before with the state crime lab or with local law enforcement labs. When it goes to a private lab, How many people are involved in the testing? What are their qualifications? What are the conditions like in the lab? What exact tests are they doing? We'd want to know all of that. What are the error rates? I think if you get in one of these cases and you know you're going to litigate it, that's going to be a big part of your discovery strategy is to really push for discovery on this. And if all of that was not enough for you, Even if they go get a correct lab, try to get a correct lab done by the private lab. Let's say the private lab does impeccable testing. They do the right tests where they're not heating the product unnecessarily. There's still multiple people involved in the testing, as I understand it. Let's assume there was just one person involved in the testing. In my experience, they don't always send the analyst or the analyst's who were involved in the testing to actually come testify. So what does that raise? Something else we talk about a lot on the show, a confrontation clause problem. We've talked before on this show recently about Smith v. Arizona. It's another case we're waiting on a decision from the U.S. Supreme Court on this practice of using a substitute analyst, that is, Not the person that did the testing, but someone who reviews the report prepared by the testing analysts and then comes to court and says, I've formed my own independent opinion about this test that I didn't perform. But I'm not using the report for the truth of the matter. I'm only using it as the basis of my opinion. It's a weird thing. No, we did a podcast episode on it. I have a blog on that. That I think is just, you know, what I wanted to emphasize in my post here on the cannabis stuff was there are these layers of evidentiary challenges that defenders can be making in these cases. And, you know, a lot of this stuff is more broadly applicable to any drug prosecution or perhaps any forensic testimony whatsoever. Is this being offered as a lay opinion? Is it really truly a lay opinion? Is it truly useful to the jury? Is it grounded in some kind of objective reality and fact. Is this expert opinion truly a reliable one? Is it the product of reliable methods? Were those methods reliably applied in this case? Even if you get past that, you want to look at the testing, how it was done, the procedures, the training. And then who's coming to testify about it? It's pretty straightforward. If I'm the testing analyst, I produce the report and I show up in court to testify about it. But if they're sending my supervisor or somebody maybe who's not even affiliated with our lab to come in and offer an opinion, you got to make that substitute analyst argument that this is not allowed under the federal constitution as a matter of confrontation clause rights. So again, I have a blog post on Smith v. Arizona. I know we've talked about that on the show, but I think that's the sort of order of how I would think about it if I was a practitioner making these challenges is got to keep the officer from offering this lay opinion. I'm going to challenge any expert opinion. I'm going to challenge the actual testing and I'm going to challenge how that testing is presented in court. And if you can do all that and preserve all those challenges, more power to you. I think that that gives you the best odds of actually keeping it out. And of course, as I mentioned, even if you can't keep it out, if you've put on those questions in front of the jury, you've made these challenges on the merits to the jury and raised these issues. I think it makes for a pretty compelling part of your closing argument. That's like you can't believe those opinions. You can't believe that lab report, ladies and gentlemen. So something to think about. Obviously, I spend a lot of time thinking and talking about cannabis law issues. Always happy to consult with any of you out there in the world. I do consult with really all sides of court system actors on this issue, and I'm always happy to talk some cannabis. So please feel free to reach out if you can. I'm going to wrap up today with one final fairly technical case. And just in case you haven't gotten enough of that today, but I'll be back in the studio soon. There was a lot more I was hoping to cover that we're not going to get to today, but Supreme Court dropped a batch of opinions pretty recently. There's a couple real significant things in there, one of which we'll talk about next time is Stavey Singleton, which purports to at least do away with jurisdictional indictment defects. They've just said, It's not jurisdictional anymore. Here was a rape, a second degree rape indictment was missing an element altogether. That has traditionally been a slam dunk for the defendant on post-conviction or appeal. Hey, the indictment is flawed. Fatal defect. Court didn't have jurisdiction. You can try me again, but this conviction can't stand. And the court said, no, no, no. This indictment was fine. And actually, we're doing away with that rule altogether. It's no longer a jurisdictional thing. It's really a question of notice and protection from double jeopardy. I'll dig into this more in future writing and podcasting. But if you're not aware of State v. Singleton from the state Supreme Court 2024, you need to familiarize yourself with that case. And it is a whopper of like 84 page opinion between the majority and dissent. But I wanted to close with another case from the state Supreme Court. This is a little more easy to digest, even if it is technical. This is Staby Jonas. We talked about this before, I think on a much earlier episode of the podcast, where this guy was stopped for having a transporter license plate. That's a sort of special designated plate you can get from DMV, like car dealers and people like that use it. Officers stopped him based on that suspicious plate. At the end of the day, Mr. Jonas won his argument that the officer lacked transparency. reasonable suspicion. But there was this sub issue in the case. I think we covered it, but it was probably a year and a half ago where, you know, he was found with like 0.1 grams of meth and he was charged with possession of meth and he pled straight up. No deal. Just I'll plead guilty as charged. Hey, do you have a deal with the state? No, I do not have a deal with the state. You know, is there a plea bargain between you and the state? It's blank. So no plea deal. But he also didn't do what we usually are required to do. If you're going to plead guilty and still want to appeal the denial of your motion to suppress, you have to say, hey, state, I'm going to appeal the denial of the motion to suppress. So I tell people, say it in open court, announce your intention to appeal this denial of the motion and put it in the plea transcript that I'm pleading guilty, but I'm reserving my right to appeal. We have a statute, 158979, that says if you get denied on a motion to suppress, you can appeal it. So if you just read that, you'd think, great, I don't have to do anything special. But the Supreme Court, since 1979, our state Supreme Court has said, out of fairness to the state, if you're going to do this, if you're going to plead guilty and then appeal and challenge the denial of your motion to suppress, you've got to give the state a fair notice. You've got to announce your intention. That rule, though, was in the context of a negotiated plea. And that was the deal. It was like, well, that was the reasoning of the court. The state needs to know what kind of bargain it's getting. And if the defendant negotiates this really favorable plea that the state thinks is going to be the end of the matter, and then the defendant turns around and successfully challenges the denial of the motion to suppress on appeal, well, then the state's kind of getting the short end of the stick. So the state has to know ahead of time that you're intending to appeal. And the question here was, does that apply when there is no plea deal, when the defendant just pleads straight up? Well, funny thing, our court, our high court, state Supreme Court had never recognized the, had never really acknowledged the existence of such a thing as an open plea, an unnegotiated plea with no terms or conditions attached, no bargain. But that's what Mr. Jonas had here. He had no deal. It was clear from the record and from the transcript that he had no deal whatsoever. And they said in that situation, those kind of concerns that were present in the case, the 1979 case, State v. Reynolds, where the state is not getting the benefit of the bargain, those simply aren't present here. He didn't make any deal, and we think he can preserve it. So a technical point, perhaps most salient for appellate lawyers, but I think an important one, because the state was really arguing, we think this Reynolds notice requirement should apply to all guilty pleas. The defendant was saying the justifications for that rule don't exist here. And a majority of the state Supreme Court agreed with the defendant and said he has the statutory right and the state's not getting any undue surprise by not getting notice on these facts. Of course, your right to appeal following a guilty plea is very limited by 15A-1444. We see this come up a lot where somebody will put in the plea transcript, I'm pleading guilty, but I'm reserving the right to make my double jeopardy argument or my speedy trial argument. or my motion to dismiss for a constitutional violation argument. None of those things can be preserved that way. You cannot appeal that as a basis following a guilty plea. You have to try your case out, preserve it there, and then you can make your arguments about due process, speedy trial, double jeopardy, that sort of thing. and motions to suppress specifically, you do get to appeal those because of 1589-79. But again, when it's a plea deal, you have to give the state and the court notice ahead of time before you enter your plea. That rule is inapplicable when there is no plea deal. Justice Berger and Chief Justice Newby dissented and would have applied the Reynolds rule to all guilty pleas, but the majority carried the day here. Good win for Mr. Jonas and good win for the defense bar, I think, in this area, because not only is Jonas a good reasonable suspicion case in its own right on Fourth Amendment grounds, but now he wins this procedural wrinkle to the case as well, this appellate procedural wrinkle. All right, folks, I will be back in the studio soon. It's great to be back. I've still got tons of stuff to cover. We'll talk about appeal bonds, State v. Jackson, a plain feel case. If you can't wait for that, I did do a blog about it and more. We'll have all kinds of stuff next episode. Thanks to you all for listening. Big thanks, as always, to my studio extraordinaire, Paul Bonner on ones and twos. Thanks to Monica Yelverton, my associate director at Public Defense Education for all her logistical support. Thanks to my brother, David, for our theme music. I love to hear from listeners. I appreciate all the feedback I get. Please feel free to reach out. Let me know what you think. Any topic suggestions, any thoughts, comments, corrections. I can always be reached at dixon at sog.unc.edu. Again, that's d-i-x-o-n at s-o-g.unc.edu. Love to hear from you. We'll talk again soon. Thanks, everybody.
Episode 13: NC Criminal Debrief
This episode covers the first successful Second Amendment challenge to a North Carolina criminal law, evidentiary challenges with marijuana prosecutions, and preservation of motions to suppress.