[00:00:00.858] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief. This is a podcast devoted to covering criminal law news in North Carolina and beyond. I'm your host, Phil Dixon. I'm a professor here at the UNC Chapel Hill School of Government in the studio, as always, with my studio tech wizard, Paul Bonner, on the ones and twos. I did a Supreme Court review in our last episode. Right at the end there, I misspoke. The Supreme Court did consider a bump challenge to the ban on bump stocks, and they actually ruled those bump stocks were legal, as in they were permissible. I'm not going to cover that more. It was just a one off statement. But I said at the end of the last episode, I thought they had struck that down. And in fact, I had that backwards. They they said they were just fine. Jeff Welty wrote an article on the North Carolina Criminal Law Blog about bump stocks, if that's something you're interested in. It's really more administrative law than criminal though, so I'm not covering it here today. I alluded to a case a couple of episodes back that I was hoping to get to, State v. Jackson. And that's where I want to start today. I wrote a blog about this one as well. And it's just a great overview of a bunch of Fourth Amendment issues from search incident to arrest to inevitable discovery to the plain view slash plain feel doctrine. We're going to talk about that. It's effectively a pills case. And we've got two pills cases to cover. So jumping right in. State v. Jackson, this is out of Avery County in North Carolina. The officer sees the defendant driving. He knows this guy does not have a license, and he has arrested this man before for possession of firearm by a felon. Apparently the officer has some vague notion that this defendant has been involved with drugs at some point in the past, but that's as much as we had on that note. So pretty vague, really just, I know this guy doesn't have a license and I'm aware that, you know, he's got a felony on his belt. I've arrested him in the past for firing by felon. They stop this guy. He immediately asked the defendant for consent to search his truck. The defendant is calm, collected, cooperative, cool. He's like, sure, you can search my truck. He just voluntarily consents. Officer searches the car. There's nothing in it. So at this point, the defendant has been asked out of the car. He, again, complies without complaint. And the man, Mr. Jackson, volunteers to the officer, hey, just so you know, I do have a pocket knife on me and on my person. The officer decides to frisk. Now, just stop right there for a second. The frisk is not an issue in this case, and it wasn't challenged. But I question whether that was appropriate. I mean, many of these officers, it's just like, well, if I get you out of the car, I'm going to frisk you. Officer safety. Just a reminder to defenders, that's not the rule. You know, this goes back, this is black letter law. It goes back to Terry v. Ohio. There needs to be reasonable suspicion of some crime, including traffic offenses. to conduct the stop, right, to have a brief investigative detention. The officer needs separate reasonable suspicion that a person is armed and dangerous in order to justify a frisk. So you can always consent to a frisk, I think, as Mr. Jackson here did. And Mr. Jackson doesn't he was armed, right? He had a pocket knife on him. But we talked a lot about the Second Amendment in the last episode. You have a right to keep and bear arms. I don't think by exercising one of your constitutional rights, like the right to bear arms, that you forfeit other constitutional rights, like the right to be free from unreasonable search and seizure. And when I'm telling an officer, Hey, I'm just letting you know I have a box cutter or a pocket knife or a gun on me. That is conveying to the officer that I'm armed, but without the separate suspicion that I am somehow dangerous. I think there's a good argument to say that's not a justified frisk. And, you know, perhaps here the guy was a felon. He knew he'd been arrested for firing by felon before. Hey, that might have been enough. He admits he got a pocket knife. We know he's a felon. We know he's committed a felony weapons offense before. Maybe that gets him there. But in the normal routine course of things, I'm not sure a pocket knife alone gets you much very far. And we saw this in a case from a couple of years back, State v. Duncan, where there was a pocket knife in the center console of the car. And based on that, the officer decided to pull the guy out of the car and frisk him. We had some discussion of that back then. State v. Duncan is another really interesting case with some of these issues. But I digress. Again, frisk was not challenged here. It's not really an issue, but I thought that was funny that he pulls this guy out of the car. He searches his car, doesn't find anything, gets the guy out of the car. And when the guy says he has a pocket knife, he frisks him. As he frisks him, he feels a pill bottle in the defendant's front pocket. And according to the officer, he could tell right away that it wasn't a normal pill bottle. Now, I'm not sure what that means. The sense I gather from reading the opinion and the briefs is like it was like a travel sized pill bottle. Simultaneously asked the defendant, hey, what is this? And removes it from the defendant's pocket. Well, that just converted a frisk to a search right now. He has removed an item from the defendant's pocket. You can do that under plain field doctrine when something is immediately apparent to be contraband. But that was sort of a big part of the issue here is like, is a pill bottle standing alone in somebody's pocket? Is that obviously and immediately contraband? We're going to talk about that. So officer says, what is this? Well, it's my medicine, officer. OK, what kind of medicine is it? Well, it's Percocet. He's like, well, you don't have a label on this bottle. You know, that's illegal. You can't carry your pills in an unlabeled prescription bottle. The officer repeats this several times. He opens the bottle, and indeed, there are two Percocet inside, and again and again, he's just like, listen, man, Mr. Jackson, it's illegal to carry pills like that outside of their original container. Full stop. I wrote a whole article about it. That's just not true. You can carry your pills around in whatever kind of container you want. As long as you have a prescription for your controlled substance, it's not illegal for you to carry it around. And in fact, I was teaching this class, teaching this case to a class full of magistrates the other day, and I was like, Does anyone have any experience with this? What do you think about this? And two of the people in the crowd pulled out pills they were carrying in a Ziploc bag from their pockets that was their daily medicine. There is no prohibition in North Carolina, and I think not under federal law, not in many states, that says you've got to keep your prescription medicine in the original container. If that were true, then, you know, your grandparents would be committing some kind of crime every time they fill their weekly pill container. Right. I know when I travel, I take prescription medicine to keep me alive. I put all that stuff in one bottle. And it's not even necessarily a bottle that matches the prescriptions. It's just I have prescriptions for those medicines. I don't want to carry around, you know, five different bottles full of medicine. So I take, you know, the dose that I'm going to need for the time that I'm going to be traveling. And I put all of those into one bottle. There is nothing illegal about that. That does not by itself give an officer probable cause to believe a crime has been committed. Now, can an unlabeled pill bottle be a factor? in a probable cause analysis? Yeah, sure, of course. That coupled with other incriminating circumstances might create probable cause to search the bottle. And I would note there is one caveat to this. It is a standard condition of supervised probation. As a condition of probation, you are only to keep your controlled substances that are prescribed to you in their original prescription container. So note, for people on probation, the rule is different in North Carolina. But for the rest of us, if I want to put my high blood pressure medicine just loose in my pocket or put it in a travel container and carry it around with me, I'm not committing a crime and I'm not an officer is not justified in seizing that just based on the fact that I've got a travel size pill bottle. He finds these pills. The guy says he has a prescription for it. He's like, well, why don't why don't you have it in the bottle? He's like, man, people steal it. If I was walking around with a bottle labeled Percocet, that would get stolen because, you know, I guess people like Percocet. He does a full search of Mr. Jackson based on these pills that he finds. In Mr. Jackson's sock, he finds some methamphetamine. Just a possession amount. But he then charges Jackson with felony possession of meth. and then cites him for driving while license revoked. And we're talking class three misdemeanor, non-impaired revocation, just regular old, you didn't have a driver's license, you weren't supposed to be driving, which was the basis for the stop, remember, right? Like the officer saw this guy, he knew this guy, he knew he didn't have a license. But here's where it gets funky. You know, the defendant makes a motion to suppress, says this is a bad search. When you found that myth, you know, I wasn't under arrest. You weren't going to find it by, you know, in the course of a lawful arrest because, you know, nobody arrests people for driving while license revoked. And in fact, you didn't arrest me for driving while license revoked. You cited me. But the state was arguing, no, this was a lawful search incident to arrest because you could have been arrested for the driving while license revoked. He also complained, you know, hey, you didn't have any probable cause to search that pill bottle in the first place. All of this is an unlawful seizure based on the pill bottle. Well, the trial court rules against Mr. Jackson, and they take it up on appeal. My friend Amanda Zimmer over at the Office of the Appellate Defender admirably briefed and argued this case. I got to watch her argue at the Court of Appeals while they were holding a little session at the law school next door, which was interesting. In any event, the Court of Appeals here does some interesting things. They ultimately say, look, we believe the officer, when he testified, that he was going to arrest the defendant either way for the driving while license revoked, even though he didn't arrest the defendant. So based on the non-existent arrest that could have taken place, We think that was a valid search incident to arrest. He didn't do so, but he could have, and he would have found the drugs as a matter of that arrest sooner or later. So we think inevitable discovery applies to this myth. The law enforcement was gonna find those drugs one way or another. So defendant, even if there was an illegal search, you lose here. There was back and forth on findings about that. The officer was pretty squirrely on day one of suppression about whether he really was going to arrest the guy or not. But by day two, he was crystal clear, like, yeah, I was going to arrest this guy. But, you know, then I found the myth and I decided I didn't need to. I'd arrest for that and cite for this. Not a win, exactly. Mr. Jackson still loses on this inevitable discovery issue. But what I thought was more significant was the arguments from the state that the Court of Appeals rejected here. Again, the state argued, hey, Plainfield justified seizing that bottle, pulling it out of the guy's pocket, opening it up. You can't carry your pills around in some unlabeled container. And the Court of Appeals said, no, we firmly disagree with that. It is not a crime to carry prescription pills outside of their original container. Many of us do that all the time, as I just described. And that immediately apparent standard, is something immediately apparent to be contraband, that equates to probable cause. Is there probable cause to believe that as soon as you feel something, you knew it was criminal? A travel-sized pill bottle, again, standing alone, just isn't that. The state was arguing about this case, an earlier case, Robinson. And in Robinson, the container at issue was a film canister, like an old analog film canister, little black tubes, you know. But there was a number of things different in Robinson. The officer in Robinson didn't just sort of suspect or have some vague notion that the defendant may have been involved in drugs before. He knew, hey, this guy's involved in crack. And he had made two arrests in the same area within a recent period of time. where other people had a black film canister and it was full of crack. And when he felt the film canister on Mr. Robinson, he heard it rattle and he was like, I know that's crack. It's immediately apparent that it's crack. And they were in a high crime area. Again, the defendant was a known drug dealer. The Court of Appeals looked at all those factors in Robinson and said, yeah, we think Plainfield justified the seizure of that film canister. But the Court of Appeals in Jackson said, this is not like that. It wasn't immediately apparent to be contraband. Even if you were entitled to pull it out of the guy's pocket, you weren't entitled to search it. Can't seize it or open it without more. Now, as I wrote in the blog post about this case, these are all fact specific cases, right? Different facts shake out differently. It's always a matter of the totality of the circumstances when we're talking probable cause and reasonable suspicion. really kind of a good one about pill bottles and the fact that they're not categorically justification for a search and that, hey, if you want to put all your medicine in one bottle and travel with it, that shouldn't be justification for a search. The Court of Appeals gives with one hand, it sometimes takes away with the other. And I don't quite think it undoes Jackson, but we had a sort of companion case, kind of similar facts that came out a few months later. It sort of muddied the waters at least a little bit. In Siler, this is a Chatham County case. And basically all the things that were missing in Jackson, the officer had here in Siler. Kind of funny facts, the defendant is sitting in a car in the passenger seat at a gas pump at a gas station. The law enforcement officer pulls up into the gas station, presumably to get gas, and he just notices that he's pumping gas, and he notices the defendant take an orange unlabeled pill bottle and tuck it under his seat. He knows this defendant. He knows this defendant has been involved with drugs before. He had previously served an indictment on this defendant. And during service of the indictment, the defendant attempted to hide drugs from this same officer. So much more robust facts. And again, he sees this unlabeled pill bottle. He sees Mr. Seiler hide it. What does the officer do? He comes over to the guy and is just like, hey, like I saw you hide that orange pill bottle. Like, what's up with that? Mr. Seiler says, what pill bottle? I don't know what you're talking about. I don't have an orange pill bottle. No, sir. That didn't happen. But the officer sort of keeps prodding him a little bit, and Mr. Siler eventually says, well, I do have this white pill bottle, and pulls out a white pill bottle from his coat. He claims it's his own medicine, this is like an Advil bottle, but he keeps denying that there was ever any orange pill bottle. Officer asks him, what's in the white pill bottle? He says, Vicodin. Officer opens it up, finds Vicodin. He said, where'd you get this, Mr. Seiler? Mr. Seiler says, from a friend. Well, that's not the right answer, right? I mean, if it was, I got them from my doctor at the pharmacy. I was prescribed these things lawfully. I can check. You know, that would go one way, probably. But to say my friend gave me this Vicodin, not a great start for Mr. Seiler. This, of course, leads to a full search of the car. And what do you know? There are a trafficking amount of opioid pills, 83 pills in the orange bottle that was indeed under Mr. Seiler's seat. So he's charged with trafficking. There was probable cause to do that search. The law enforcement had this prior specific knowledge of this defendant, of this defendant's involvement with drugs, of this defendant's tendency to hide drugs from law enforcement. He observed this guy hiding an unlabeled pill bottle and then lying about it. That kind of gets you there. And then the guy, of course, volunteers. Here's this other Vicodin I have on me. I mean, to me, that's PC all day. We talk about totality of the circumstances. Looking at all those circumstances, I think a reasonable officer would be justified in thinking, hey, it's pretty likely a crime I'd be being committed here. But there's this confusing mention of the law against dispensing prescriptions without a label. And I don't see the opinion as hanging its hat on that law, but General Statute 90-106 says, hey, doctors, pharmacists, it is a crime for you to give out prescription pills in an unlabeled container. great. We just talked about Jackson and Jackson, the court said, you know, we've scoured the books. We are unable to identify any law that requires a person to keep their prescription medicine in the original container. And in fact, we've, we've surveyed other jurisdictions and we haven't found such a law. So that's just not the law in North Carolina that you have to have your stuff in the there's sort of this throwaway mention of 90-106. And they're like, well, you know, it also is a crime for pharmacists to dispense medicine without a label. Okay, I'm not sure that adds a whole lot to anything here. That is some authority that, you know, restricts the conduct of pharmacists. But I don't think there was any confusion by the officer that this man was a pharmacist or that he was in the business of legally dispensing pills. And they sort of suggest without really relying on it that this was an additional, you know, this added to the suspicion. I think that's a red herring. They had probable cause all day based on the totality of the circumstances. And I have a really hard time believing that, you know, even if the officer did suspect that, hey, my pills may have been dispensed without a label. That investigation would have to do with the pharmacist or the doctor, or maybe you can ask me about that, but I don't know that that would justify a search. But Seiler does confusingly raise that specter, and nowhere does this opinion cite Jackson. That came just before it, and it was dealing with almost identical issues of an unlabeled pill bottle. Sometimes these panels just aren't talking to each other. We see that sometimes, and I think it's probably safe to assume that's what happened here. It definitely doesn't directly conflict with Jackson to the extent it muddies the waters here around an unlabeled pill bottle. Well, you know what? When an earlier panel of the Court of Appeals has decided something and another decision comes along and conflicts with it, well, the earlier decision controls. That's in re civil penalty. So even if you could read this Seiler case as sort of contracting or contradicting Jackson, Jackson would be the controlling case on the point. But again, I think the better read of Seiler is just that, hey, the totality here supported probable cause, and this reference to 90-106 is really not essential to the holding. It's not really relevant as far as I can tell. There's some interesting side issues here. Turns out Mr. Seiler was on probation at the time, but the officer didn't know it. So there was this discussion in the opinion of like, can it be a probation church, which is justifiable under a lower level of suspicion, even when the officer doesn't know the person's on probation? And the court ultimately says, we're not going to decide that issue. We don't have to decide it here. We're just deciding there was probable cause. But they sort of strongly imply that if the officer does not know the person's on probation, then they can't rely on that after the fact to justify a search under a lower standard of suspicion. And I think that's correct. And the defender takeaway on that point is, you We're talking about the facts known to the officer at the time. After the fact, justifications are rarely going to get you there, and I think Seiler is good on that point as well. An interesting pair of pill cases for y'all. We've just really been on a gun kick lately, and I'm not talking about Second Amendment issues this time, but we do have some gun cases to cover. A really good sufficiency of the evidence and constructive possession case out of Rutherford County from this summer, State v. Norris. Law enforcement here had an arrest warrant for the defendant. They've got good reason to believe he's basically living at his girlfriend's house or that he can be found at his girlfriend's house. And they they're watching that place. They see the defendant enter. They see him come back out onto the porch. And that's when they approach him. They serve the arrest warrant and they arrest him. Whatever that charge was, I don't know. It doesn't have anything to do with this case other than just teeing up the issue. And turns out that charge was actually later dismissed. While they're there, they've arrested this guy on the girlfriend's porch. They asked, the officers asked the girlfriend, can we search the home without a warrant? We don't have a search warrant. We just have an arrest warrant. We already served it. We got the dude in custody. But hey, can we search your house? For whatever reason, the woman consents and they go through everything as they do. And inside of her bedroom, inside of a dresser drawer, they find a gun. Alongside the gun are items that are generally associated with women. Things like feminine lotion, hairspray. The opinion refers to quote, unquote, other feminine products. The bedroom is pink. It has pocketbooks hanging around it. Other items kind of strongly indicating this is a woman's bedroom. There was male and female clothes in the closet. and they found the defendant's name on a scrap of paper inside of a tote bag in the closet. Of course, the defendant was a convicted felon. So they charged the boyfriend with that gun firing by felon. The theory being, hey, we think you are really a co-occupant of this house and you're living here. You're living in that bedroom with your girlfriend. Therefore, you had joint control over that weapon. And we know we didn't catch you with it, but we think you had constructive power. possession of it. You had dominion and control, the power and intent to control that property. This may sound familiar. We covered a very similar case last year on the show, State v. Sharp. There, the guy was a passenger in his mom's car. Somebody else was driving. There's a gun in the backseat. The defendant was a felon. It was a car situation there instead of a bedroom like here in Norris, but the same guiding principles and ultimately the same result. It's a great case for the defense on constructive possession and sufficiency of the evidence. Just to review, possession can be actual, got it on the person, or it can be constructive. You're aware of it. You know it's there. You got power and intent to control it. And where the defendant has exclusive control of the premise, like it's my home, you found a gun in my home, I'm the only person in that home, you can infer that the defendant had knowledge and intent to control it. Where the defendant does not have exclusive control, however, like the gun is found in someone else's car or someone else's bedroom, then the state's got to come forward with extra evidence. They've got to show there are other incriminating circumstances, some additional facts to prove, yeah, the defendant had that knowledge and had that intent to control this weapon. So put another way, you can't just infer that the defendant had knowledge and intent to control the gun when multiple people have control of the location or access to the location. The court reviews some case law. It's a good walk through these principles. One was the defendant was cooking in the home. There was mail addressed to the defendant in the home. And there was drugs in the defendant's bags in the home. You know, hey, that's enough. That's enough to show that those are those additional incriminating circumstances, even though it wasn't his home. Where the drugs were found inside a man's jacket, and there's some on the kitchen bar, but the suspect was a female, that wasn't enough. Again, without exclusive control of the premises. So here, the court says, even if we assume the defendant was living there, even if we assume he was staying in the bedroom, there was no additional evidence linking the defendant to that gun. So it was non-exclusive possession, so you need those extra facts showing that the defendant had control and knowledge of the gun. He was at the home, last name was on the mailbox, there was a scrap of paper with his name and a bag on the closet, and he had a few clothes in the closet, but that wasn't enough. The woman said, it's my home. It's my gun. I'm the one who consented to the search. You asked me, officers. You didn't ask him. There was also some evidence that the defendant's last name on the mailbox was really referred to his deceased daughter who used to live with the girlfriend, weirdly enough. And the state argued, well, look, he could have stashed the gun there to confuse police. And the court said, look, that's rank speculation. The unanimous court said, there's nothing here. Nothing links it to the defendant, just like in that Sharp case. You don't have ownership records. You don't have fingerprints. You don't have DNA. You don't have an admission. You don't even have circumstantial evidence linking him to the gun. So like in Sharpe, the motion for insufficient evidence should have been granted. The denial of that motion was reversed by the unanimous court. The conviction was vacated. That's an acquittal on appeal for Mr. Norris, and he wins. Again, great case for the defense if you've got one of those constructive possession cases. You want to look through this case. You want to look through the cases cited and discussed in it and try and analogize your facts to these facts in cases like Norris and Sharp, where there just wasn't enough to link the defendant there. Turning to one more gun case, a really just tragic, tragic set of facts out of McDowell County. This is Stavey Cable. This has to do with negligent failure to store a firearm in a way to protect a minor. These are some gun folks. The defendant was actually a mom, and she and her husband live in this home in McDowell County with their 16-year-old son. They've got guns all over the house. They have like 50 guns, I think. The son, 16-year-old, he has a friend come over and spend the night, another 16-year-old boy. The mom was home. There is an unlocked gun safe in the mom's bedroom. And on top of that gun safe, sort of the go-to gun is what I gathered, mom and dad keep an unloaded .44. There's an unloaded .44 Magnum revolver. They keep that on top of the gun safe. It's unloaded, but there's a box of ammo right there beside it. The boys stay up late past the time that mom and dad go to sleep. And around 2 a.m., the son sneaks into the parents' bedrooms. He grabs that revolver and the ammo. Mom and dad stay asleep. And he shows this off to his friend. He apparently just wanted to say, hey, look at this cool gun my folks have. And the friend ultimately asks his buddy, the son, hey, maybe we should play Russian roulette. And I guess loads one bullet into the chamber and spins the barrel. And he puts it to his head and pulls the trigger, killing him instantly. So really, you know, terrible set of facts. It's unimaginable as a father. But the mother is charged with this misdemeanor of failure to store firearm in a way to protect minors. Two counts, apparently. One for that pistol. and one for the other, excuse me, there was another 57 guns in the home, some of which were apparently not secured. And this is General Statute 14-315.1. I handled a couple of these when I was in practice. This is what happens, a young kid gets a hold of a gun, it goes off. It doesn't have to hurt somebody, they just have to show you were storing a gun in a way that a minor could access, you know. But what typically happens is someone gets hurt by it. That's how law enforcement finds out about it. But this law, the failure to store safely, says you cannot store a gun that is in a condition where it can be fired if a minor child will be able to access it. Based on the theory that that was so negligent, that was a crime not rising to the level of a felony, but resulting in death, they also charged involuntary manslaughter for the death of the 16-year-old friend. Quick side note, the defendant here at trial at the motion to dismiss for sufficient evidence stage, he only she only argued about the misdemeanors that fair to store. And they didn't get they didn't raise any sufficiency argument about involuntary manslaughter. Look, it's easy these days, defenders. All you got to say is, I move to dismiss for insufficient evidence as to each and every charge. There's no more magic language. But you do have to say you're moving to dismiss as to each charge. And if I'm charged with, you know, DWI and resist, let's say... and I move to dismiss for one of them and not the other, I have forfeited my argument as to the unargued one. So just know you want to do it as a matter of course every single trial you ever have at the motion to dismiss for sufficient evidence says, I move to dismiss all charges for insufficient evidence. They didn't do that here. That would normally mean that the sufficiency argument for involuntary manslaughter was waived, but here the court saved the appellant by invoking rule two, that's to suspend the normal preservation rules and get to the merits. They said, you know, we're going to prevent a manifest injustice by allowing this to be argued on appeal. We talked about that, I think, two episodes back in another case where that Radomski case where the weapon on educational property was struck down as unconstitutional in the Second Amendment. Same thing. The defendant made no Second Amendment argument there. Court of Appeals invoked Rule 2 on appeal to consider that constitutional argument. Defenders, you just got to know, don't count on that. As I've said before, if you normally have an unpreserved issue, it's just going to be waived in the court of appeals. But here, court apparently saw it and felt strongly enough about getting to the merits of both of these things that they considered the sufficient evidence of the involuntary manslaughter conviction. Quick reminder, involuntary manslaughter, you can predicate that on showing a death that resulted from either an unlawful act not amounting to a felony or that posed as naturally dangerous to human life or by culpably negligent acts or omissions. And here, the state expressly said, we're proceeding on this. You did criminal conduct that didn't amount to a felony, that being the misdemeanor of failure to store the firearms safely. So that kind of stopped them from being able to argue a different theory later. This was also a bench trial, so for what it's worth. What happens at the end of the day here, the Court of Appeals reverses both convictions. What was really at issue was that language of, was this a firearm capable of being fired? The defendant was saying it was unloaded. It wasn't capable of being fired until someone else put bullets into it. And the court grappled with this question of statutory interpretation. What does that mean? Is an unloaded gun fall within the ambit of the statute? It's not really capable of being discharged. And that's the language of the statute. Is it capable of being discharged? They sort of note like, look, there might be other wrinkles here. Like what if it's chambered in a loaded gun or what if the gun's loaded, but the bullet's not chambered? other variations on it. But at the end of the day, they said We think the rule of lenity applies to the extent this is ambiguous. The gun was not loaded. The statute requires it be capable of being discharged. An unloaded weapon is not capable of being discharged. So that means her convictions, her motion to dismiss for insufficient evidence on failure to store were reversed. And because those convictions were the justification for the involuntary manslaughter conviction, She gets a pass on all of it. So good reminder about the global motion to dismiss. You want to make sure you move to dismiss for insufficient evidence as do all charges. But then also a really important limitation on this failure to store firearms safely. A tragic result nonetheless. But an important development with this law, hey, an unloaded gun is never going to get the state there if they're trying to say you were negligent and failing to store this gun. I'm sure folks have feelings about that one way or the other. And a personal matter, I'd say try to store your firearms in the safest manner possible at all times where minors aren't able to get to them. These were also 16-year-old kids, and teenagers will sometimes make very poor decisions. I think we all have some experience with that. So an interesting one, an interesting development on that law, kind of sad stuff here. I want to touch on another thing I recently wrote about, which was synthetic THC and THCO. Of all the things, we talk about cannabis a lot on this show, I know, and usually we're talking about state cases. I do owe everyone a state update. Long and short of it is that we've now had a string of decisions from the Court of Appeals basically saying, look, As far as probable cause to search or arrest based on the site or odor of cannabis, we don't think hemp changed anything. It's probable cause all day. I have hesitated to write on that yet, both because a couple of those opinions announcing, you know, sort of firming up that rule have been withdrawn and are awaiting republication. One of them has requested the state Supreme Court to weigh in on this question. So I think it's still evolving a little bit. But the issue of probable cause based on the odor of cannabis and, of course, cannabis encompasses both legal hemp and illegal marijuana. That seems to be lost for the time being as far as the defense goes. But I may have more to say about that or write about it later. And as we've covered in a previous episode, there's still plenty of evidentiary challenges for a defender to bring in any kind of marijuana prosecution. But. I'm going to go way out on a limb here and say there's an employment law case out of the Fourth Circuit that, strangely enough, has these pretty significant criminal law issues. It's called Anderson v. Diamondback Investment Group, LLC. The plaintiff was an employee of this investment company. And part of the conditions of her employment where you got to pass a drug screen at some point, you know, during your probationary period, she takes a drug screen and she fails for THC. When confronted with that, she's like, oh, well, listen, I use CBD. I use legal hemp products. They help me with a variety of health issues, but I've never smoked marijuana. I'm not smoking marijuana. I just tested positive because of my use of legal hemp. They don't buy it. The employers fire her nonetheless. And she turns around and sues in federal district court, alleging American with Disabilities Act violations, saying, hey, this was a reasonable accommodation you should have made. and bringing a state tort claim under our lawful use of lawful product statute. I think I've mentioned this before, way, way back in the day, but we do have a statute that talks about if you use a lawful product outside of work hours and it doesn't affect your job performance, you can't be discriminated against for it. And if you are discriminated against for it, you can sue. It is GS 95-28.2. And so, you know, one thing, I'm not an employment law person, obviously, and I'm not going to get into those issues, but this is the very first case ever interpreting our state lawful use of lawful product statute. So it's worth a read just for that. And if you are doing employment law or you know people who are, you want to alert them to this. This woman ultimately loses her claims for the way I read the opinion was like she just didn't have very good evidence, either of her disabilities for the ADA claims, nor could she really prove that what product she was using. claiming to use were in fact legal products. But what's interesting is the DEA's interpretations of some of these rules around some of these hemp products and cannabinoids was challenged. One of the products she was using contained a cannabinoid known as THC-O. THC-O does not naturally occur in cannabis. It can be derived from CBD and hemp, but it is not a naturally occurring cannabinoid, unlike, say, Delta-8 THC or Delta-9 THC. These naturally occur in the plant. CBD, naturally occurring cannabinoid. But as folks know, if you paid attention to the hemp industry, there's all these crazy exotic cannabinoids now, many of which, like stuff like Delta-8, It's naturally occurring, but it usually naturally occurs in such minuscule quantities that it's not been thought traditionally to be a thing. But with the advent of legal hemp and all the innovation in the industry around it, they found a way to sort of make commercially viable Delta 8 concentrations from hemp. The DEA didn't like the Delta-8 stuff in the first place. They took the position originally in the Ninth Circuit a couple years back. They're like, look, hey, under federal law, synthetic THC is illegal. And we think Delta-8 is a synthetic THC because they've had to synthesize it from hemp to CBD to Delta-8. We're arguing Delta-8 is categorically illegal synthetic under federal law. They lost that argument in the Ninth Circuit in a case called AK Futures LLC versus Boyd Street Distro LLC. That was, I think, a trademark infringement or patent dispute case in part. So again, a weird context for it to come up. But at the end of the day, the Ninth Circuit looks at the DEA's interpretation of synthetic THC and how it applies to Delta-8. They look at the federal definition of hemp, which says... all parts of the cannabis plant containing no more than 0.3% Delta-9 THC and including all extracts, derivatives, isomers, acids, and cannabinoids. They said, look, DEA, you got it wrong. The definition of hemp under federal law is clear. It's clear that it's very broad. It's clear it includes derivatives and isomers. Delta-8 is an isomer. The only thing, the only regulation we have, the only thing that pegs a product distinguishes a product, excuse me, from legal hemp to illegal marijuana is the Delta 9 THC concentration. And there the parties came forward and showed with testing, this is a product that's sourced from legal hemp. It does not exceed the Delta 9 THC concentration limit. Therefore, we think it's a legal derivative within the meaning of the definition of hemp. And the Ninth Circuit agreed and said, DEA, your interpretation is wrong. Here, the DEA had taken the same stance. They had issued opinion letters saying, THCO, because it does not naturally occur in cannabis, we think it's a legal synthetic. Delta-9 concentration doesn't matter if it's an illegal synthetic THC. It's just illegal categorically. And state law mirrors this prohibition, although we don't have state cases interpreting it yet. But that's what was so interesting about this Anderson case from the Fourth Circuit was, again, the Fourth Circuit kind of joined with the Ninth Circuit and said, look, this is derivable from hemp. The definition of hemp is broad. The only thing that distinguishes legal hemp from illegal marijuana is the Delta nine concentration. So we reject that. This view that THCO was an illegal synthetic. She doesn't lose for that reason. Again, she loses because she didn't bring better proof and because she couldn't prove her products were legal ones. But the argument that she loses automatically because THCO isn't legal, we reject that view. So I thought that was significant. And the takeaway for defenders is just that that kind of thinking is likely applicable to several other cannabinoids like HHC. And there's a big debate or there's some controversy, I think, over what I believe is now the most popular hemp-based cannabinoid on the market, and that is THCA. Okay. Well, that's just THC acid. That's tetrahydrocannabinol acid. What does the definition of hemp talk about again? Isomers, derivatives, acids, extracts, cannabinoids. Those acids, those isomers, those derivatives, apparently under the fourth circuit logic, even when not naturally occurring in the cannabis plant, but are derivable from legal hemp, this all falls within the definition of legal hemp. I see lab reports frequently in the state that are doing the proper testing of Delta-9 levels, but they add the THCA to the Delta-9 to say total THC. And that, you know, now it's an illegal product because it exceeds 0.3%. I think this case gives defenders a really good argument to say THCA is legal as a matter of state and federal law. Our state definition of hemp tracks exactly the same language of the federal definition. Acids are included, isomers are included, derivatives are included. If THCO is legal, so is HHC, so is THCA, and it shouldn't be added to the delta-9 concentration when calculating delta-9. The definition is clear. What's the Delta-9 concentration? It's not what's the Delta-9 concentration plus the THCA. But I think law enforcement and some labs, I mean, their perhaps reasonable interpretation is like, well, THCA, when heated, converts to Delta-9. So, again, some controversy there. But I've found it interesting, the more I've dug into this, the USDA rules, the Department of Agricultural Rules for Cultivators, they do include the THCA as a matter of regulation when they're testing the Delta 9 levels. on the farm pre-harvest. But the USDA and its regulations do not have any authority over post-harvest products. The FDA and the DEA are the only ones with any kind of regulatory authority over legal cannabis products. And I've written a lot about this. I wrote about this case. If you see a lab report, Defenders, with total THC and it's adding in that THCA, I think you need to go read through this Anderson case, at least the section of it that's discussing THCO, that's discussing that Ninth Circuit case. And just as a sort of a practical sense, practical common sense reminder to everyone out there, I wrote my first cannabis post in 2018, I think, about CBD, looking at what is this stuff? Is it really legal? What are the risks of using it? And one of the risks I identified way back then was like, it looks to me, and I'm hearing a lot anecdotally, that just using CBD will cause you to fail a drug test for THC. If you take it long enough and a high enough dose... you're gonna fail a drug test for THC, and then you're gonna have some explaining to do, and your employer's not necessarily gonna have to believe you. That's what happened to this woman here, and we're six years later down the road, taking her at her word that she was using legal hemp products, she still failed the drug test at the end of the day, and it cost her her job. So despite these products being legal, and despite all the questions around some of the margins like we're talking about here, Just remember, folks, that stuff might still cause you to fail a drug test. And if you're in a job or in some kind of situation where you may be subject to drug testing, I think it's important to know that even though this stuff is legal, it might cause you some problems down the road with your employer, certainly with your probation or parole officer or something like that. Folks, that's it for today. Thank you all for listening. Big thanks as always to Paul Bonner on the ones and twos, my studio wizard. Thanks to Monica Yelverton, my associate director over at Public Defense Education. Thanks to David Dixon who composed our theme music. You can hear more of his original work over at David Dixon Music. on Facebook or Insta. Again, appreciate all of you listeners. It's really great to be back in the studio. I'm looking forward to continuing with a little bit more frequent of a pace. Hopefully, hopefully we'll get you something else before Christmas. If you have thoughts, feedback, whatever questions, please contact me. You can reach me at Dixon at SOG.UNC.EDU. Again, that is D-I-X-O-N at SOG.UNC.EDU. Also, you know, check out my competition with a faculty member devoted to working with prosecutors and my former colleague, his predecessor. That's Joe Hyde, who's currently a faculty member here working with prosecutors and his predecessor, Jonathan Holbrook, director of training over at the North Carolina Conference of DAs. They just put out their first episode of a podcast aimed at prosecutors, which was called has the clever title of Turning States. You can find that on the SOG website at least, and I imagine they'll get it up on other places where you listen to podcasts. But we hope, dear listeners, you will, of course, continue to tune in to the Defender podcast. So thanks, everybody. I'll talk to you soon. Take care.
Episode 15: NC Criminal Debrief
This episode covers the new state crime of sexual extortion, amendments to our state exploitation and disclose of private images offenses, a cannabis update, geofencing warrants, and more.