Episode 21: NC Criminal Debrief

[00:00:01.026] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief Podcast. This is a show where we talk about criminal law developments in North Carolina and beyond. I'm your host, Phil Dixon, a faculty member here at the University of North Carolina Chapel Hill School of Government. I'm joined by my friend and colleague Paul Bonner on the ones and twos for technical support here in the studio. And today we're gonna talk about some case law, some recent cases from the North Carolina Court of Appeals and the Fourth Circuit. You may have listened to the last episode. We covered a bunch of legislation there In particular, we spent some time talking about the new crime that'll go into effect on December 1st of exposing a child to a controlled substance. I just wanted to flag for listeners that I did recently publish a blog post going into a little more detail. After having recorded that episode, I thought about it some more and there may be some additional insights that you could find in that blog post. So check that out on the North Carolina Criminal Law blog. if you like. Today's first case is Aspiote, State v. Aspiote. This is a Carteret County contempt case. The defendant was trying to do a plea in superior court, trying to enter a guilty plea. As practitioners know, one of the questions on the form, one of the questions the judge asks during a plea colloquy is whether the person has used any drugs or medicine that might cause them to have issues understanding the proceedings. that day or when the last time they took any kind of drugs or medicine was. We get to that question here. The court asks the defendant, have you been using any drugs or alcohol? And the defendant says, yes, I did some drug this morning, but judge, I know how it affected me. I know what it did. I can promise you my mind is clear. I understand what's happening. I know what's going on. Everything's fine. So a very candid answer from the defendant. And the judge just sort of absorbs that and goes on through the rest of the plea colloquy. There are 20 some questions. The defendant responds appropriately. Yes, sir. No, sir. To each one. Seems like he understands what's going on. The judge never asks and the defendant never volunteered what the drug was that he actually had taken that morning. So again, the defendant seems to understand this colloquy. Judge never voices any concern during the colloquy that the defendant didn't understand things. But things go awry some point around when, after the DA gives a factual basis for the crime, he calls on the victim to speak, and the victim speaks at length, painting the defendant as a drug addict and otherwise in a very unflattering light. The victim's statement alone to the court about the facts of this case go on for six pages of the transcript. I'm taking it the victim had some really strong feelings here. After this speech by the victim, the trial court says to the defendant, you're going to need to do a drug test before I will accept your plea. And so the defendant is taken out of the courtroom, presumably a probation officer or some kind of bailiff. tries to go administer a urinalysis. And there's some indication that the defendant, you know, all outside the presence of the court while they're trying to do this drug test, that he may have resisted that at first. He may have been reluctant to give a sample. It's not clear to me what exactly happened, but he didn't want to give a sample right away. And eventually he does. This takes about 90 minutes. When it comes back, it is positive for methamphetamine. The trial court then goes on the record, rejects the plea, and says, I'm going to find that this plea is not knowingly, voluntarily, and understandingly given, so I reject it. And by the way, defendant, I'm going to find you in criminal contempt for delaying the proceedings. And it wasn't clear to me whether he's talking about the 90-minute delay from while the defendant was trying to get drug tested or the fact that the plea has to be rejected and they're going to have to go through this whole thing again some later day. The judge summarily finds the defendant in direct criminal contempt and sentences him to 20 days in jail. That's how this case ends up at the Court of Appeals, the defendant appeals, and a unanimous Court of Appeals reverses. This is a great reminder just about sort of some of the overarching rules of contempt. The court goes and explains, hey, you know, criminal contempt, that can be direct or indirect. Direct criminal contempt is when the defendant performs some contemptuous act in the presence of the court. And that can be within their sight or sound. Cussing in court is a common one, telling the judge off in no uncertain terms. Practitioners have all seen a defendant get held in contempt for that kind of behavior and that is summary direct criminal contempt. The judge does have to warn you unless it is plainly contemptuous. The judge is supposed to give you a warning and the judge is still supposed to give you an opportunity to respond. With those little protections in place, the judge can just do it summarily. You don't have to be served an order to show cause. You don't get appointed a lawyer. It's a very quick and dirty proceeding. Don't have to give them any particular notice. With indirect criminal contempt, something happens outside the presence of the court. Here, you're entitled to a full-blown plenary proceeding, meaning the court has to issue a show cause order, put the defendant on notice of what they're being accused of to have caused this indirect contempt, They're entitled to counsel, and they're entitled to a full-blown hearing where they can present evidence and cross-examine witnesses if they like. Here, the court held the defendant in direct contempt, and the judge wrongly found as fact that the defendant had represented to the trial court that he would pass a drug test. Well, the defendant never said that. Had he said, yeah, judge, I'll pass a drug test, and then he failed it, that would have been lying to the court, adjudication either for the lie or for the delay but he never said that and he was never asked if he would pass a drug test. So the trial court just got that wrong. I think they had it in their head that when he admitted to having used drugs that morning that somehow that was that got turned around in the trial court's mind to be a representation that he was going to I guess when he said that I was not impaired that that was some representation that he would not fail a drug test. But the defendant, again, said no such thing. And the Court of Appeals here correctly observes, you know, the defendant admitted to ingesting some substance. Trial court, you never asked him what that substance was or how much it was. There's really no indication from the record that he was actually under the influence of drugs during the plea colloquy. Perhaps this is helpful language for defenders, but it's important to remember, and the Court of Appeals expressly notes this, having drugs in your system does not mean that you're under the influence of drugs. A positive test is not equivalent to being impaired or somehow affected by the drugs. Folks probably know. I mean, different drugs have different rates of metabolism depending on your dosage, your frequency of use. Drugs might be in your system. Most notably, marijuana lasts, I think, the longest of all the major controlled substances just because of its chemical structure and how the body metabolizes it. But you could test positive for drugs days or weeks or even longer after having used them when any impairing effect occurs. has long since worn off. The Court of Appeals goes on to say, causing a delay of the proceedings by initially refusing the drug test, maybe that would have supported indirect contempt here, but it couldn't support direct contempt because it didn't happen in or near the courtroom. It Perhaps the judge could have done this differently and still gotten to the same place, but he or she would have needed to serve the defendant, show cause, give him the opportunity to obtain counsel, and conduct a full-blown hearing. They also said someone being impaired in court is another completely justifiable use of direct criminal contempt. They cite cases where people are nodding off or falling into a deep sleep and can't be awakened, where people are drunk or seem drunk or otherwise impaired. When that happens in the courtroom, it can justify a finding of direct criminal contempt because it is disrupting the proceedings. It's affecting the authority of the court. It's a contemptuous act. When the defendant here says, yeah, I've taken drugs today, but I'm actually not intoxicated. The court here suggests, well, trial court, you need to clarify, ask some questions, figure out a little bit more about this guy's mental state. If you're satisfied that he is not impaired, you can just continue with the plea and accept it. I realize many judges might be reticent to do that because I think the fear is the defendant's going to turn around and say, Judge, you had evidence before you that I was on drugs. You should have never accepted this plea. The plea is knowing wasn't knowing involuntary. So it's a double edged sword. With the right findings, like I'm going to find what was it you took and how much did you take it? How frequently do you use this? How long does it typically last? Are you of sound mind and cognition now? Building a record like that would, I think, probably defeat any after the fact post-conviction challenge to the voluntariness of the plea. And that's what the court of appeals here suggested. Depending on how the defendant answers those clarifying statements about his drug use and mental state, there may be a need to continue or the need to continue the case or do a drug test. And that causes a delay. You might get to direct criminal contempt that way. But there would need to be an actual delay or some kind of disrespect of the proceedings. And there has to be enough information before the court to find that the delay was caused by the defendant's willful actions before the court, i.e. in the courtroom. The court also pointed out, hey, any contemptuous act has to be willfully performed by the defendant. A willful act is needed to justify any finding. You might have been able to find here that the defendant willfully delayed the proceedings, but there just wasn't anything in the record about that. The trial court needed to ask more questions and develop a little bit more of the record. Contempt is a funny thing. Our law treats it as its own thing, even though we talk about it being a criminal contempt and a conviction for contempt. We actually say that it is its own thing. It's neither criminal nor civil. It's contempt. This is all in 5a of the general statutes. And this is, if not the most, gotta be one of the most commonly reasons a Superior Court judge gets reversed. Because there's sort of a lot of little traps for someone who's not being cautious enough. They get overturned because there's not evidence that the thing is willful, that the act was willful. They get overturned for not giving the defendant an opportunity to respond. Judges themselves, as this opinion indicates, get confused about the differences between direct criminal, indirect criminal, direct civil, indirect civil cases. I would just alert listeners to if you're dealing with contempt issues or if you need a resource in this area, a former school of government, longtime professor Michael Kroll, published a paper on contempt law in North Carolina. I think it's just called Contempt Law. But if you Google Michael Kroll, C-R-O-W-E-L-L, Kroll Contempt North Carolina, that pops right up on some school of government websites. And it is an exhaustive treatment and breakdown of the differences between the different kinds of contempt, the limits of contempt power when it's appropriate and when it's not appropriate. As for Mr. Aspioti himself in this case, I'm curious whether I assume he probably got his 20 days stayed for purposes of getting this appeal. And now it sounds like he gets a do over without that adjudication of contempt. Shay Denning, my colleague here, the Director of the Judicial College, published a great blog post on this case, so you can also read more about that on the Criminal Law Blog. Moving right along, I wanted to talk about State v. Moore. This is another Court of Appeals case from Forsyth County, fairly fresh off the presses. This was decided and published on July 16th of this year, 2025. Pretty tragic facts. The defendant was driving in Winston-Salem. He's hauling a motorcycle on a trailer. So sort of carrying a lot of weight. And he is seen speeding between 60 and 70 miles per hour in a 35 mile per hour zone. He's seen crossing into the lanes on both sides of his lane of travel, and at some point he swerves into the lane of opposite traffic, hits a woman and her passenger head-on, and sadly the passenger is killed. At the hospital, the doctors draw blood from this man for purposes of medical treatment and find benzodiazepines, opiates, and amphetamines. That's a heck of a cocktail. And again, as we just talked about, the presence of those things in your blood does not necessarily mean you're under the influence of them. But here there was a good bit of evidence that this man was under the influence of these drugs because they checked this guy out medically, the defendant, and there's really no evidence of any real traumatic injury. He hasn't hurt his head. He didn't get banged up. He is acting very groggy, though, and the doctors note, you know, there's not really evidence of serious injury here, but without that evidence of serious injury, it kind of seems like he's on drugs. He's charged with second-degree murder and felony death by motor vehicle. The doctors testify at trial about his blood test results. They explain how benzos and opiates are both depressants and how the defendant seemed impaired when they were doing intake and examination at the hospital. There's a host of other witnesses. I mean, they bring out a crash reconstruction expert, a forensic toxicologist. One officer who tried to do HGN while this guy was laying in a hospital bed in a neck brace. Finally, they get to a DRE officer, a drug recognition expert officer. And importantly, this DRE officer did not actually ever examine the defendant. Not at the time, not at any point. He reviewed the records of the incident. He listened to the testimony at trial, and he watched a video, I guess, was taken of the defendant sometime at or near the time of the crash. And based on that sort of after-the-fact reconstruction, offered an opinion that this guy was impaired on drugs at the time. The trial counsel for the defendant objected to this testimony and pointed out, I don't think that's right, Judge. He didn't observe any of this stuff. He didn't perform a DRE exam on the defendant. Shouldn't come in. None of this stuff is based on his own observations. And trial court overrules it, lets it in. This guy's convicted. And on appeal, he complained specifically about this ruling. And the defendant tries to raise a due process argument on appeal that the admission of this evidence was so improper as to violate his federal and state constitutional due process rights. Unfortunately for Mr. Moore, that argument was not presented to the trial court and constitutional arguments that are not raised before the trial court will usually not be heard on appeal. We talk about this all the time on the show, just a standard preservation point. Every once in a while, they will do something unusual like invoke Rule 2 of the Rules of Appellate Procedure to suspend the normal rules and consider an unpreserved claim. We saw that in the Radomski case where the court took up a Second Amendment as applied challenge to weapon on educational property. But for the most part, as I always say, you can't count on that. And here there was not even any discussion of it. It was just, hey, this wasn't raised. So your constitutional argument is waived. But the court does say decide your statutory argument under Rule 702 that this was improper expert testimony. That statutory argument was preserved. So we'll dig into that. Under Rule 702, Subsection A1, Subsection 2, a qualified witness may give expert opinion only on the issue of impairment if they are currently certified as a drug recognition expert by DHHS. And the rule goes on to say, they shall be qualified as an expert, notwithstanding any other provision of law. So you read that and it sounds kind of absolute. Hey, if they're certified, they possess the certification from DHHS, They are an expert and their testimony, they shall be qualified, which sort of indicates their testimony is going to come in. And these are a pair of amendments to Rule 702 some time ago added this something similar about HGN and this provision about drug recognition testimony. The state here said, well, look at that notwithstanding any other provision of law, Judge. You know, that means certification equals this testimony comes in, period. It's up to the jury to weigh it, but doesn't have to jump through any other hoops. And the court said, that's an absurd interpretation. That cannot be the case. It still needs to be relevant. It still needs to be reliable. What these amendments to 702 did in regards to HGN and DRE was to say the legislature has made a determination that these are generally reliable methods. The state, the prosecution does not have to go through every single case and convince the trial judge that, hey, HGN, can be a reliable science, or that drug recognition expert testimony can be reliable. That part of the foundation, that this is a reliable science, that has been decided by the legislature. And that's what these amendments did. But the court notes, correctly, these tests still have to be performed in accordance with their training. It still needs to be done per the DRE protocols. You've got to still do the HGN or DRE exams correctly. With DRE protocols specifically, it's a 12-step process, and this includes evaluating the suspect's behavior, their appearance, administering tests to the defendant, talking with the suspect, all of these things and more. You still do have to show that the witness reliably applied the DRE methodology to the case. It's clear when you look at the DRE protocols from DHHS, it's meant to be done on a live person and it's meant to be done soon after the arrest. It is not designed to be done by reviewing video after the fact. And here the officer acknowledged, I never did any DRE exam on this guy. The court said that was error. It should have been kept out. However... Given all the other evidence, and there was a lot, this was not likely to have prejudiced the defendant, so harmless on the facts. And the court points to, we had evidence of his erratic driving, his unsafe driving, drugs were in his blood. He seemed impaired at the hospital with no other apparent explanation. And in fact, several of these drugs were found in his car. So no possibility of a different result based on that. Doesn't help this defendant, but a good case for defendants generally. Because again, I think the state would love to read those provisions of 702 as saying HGN and DRE always comes in as long as they've taken the training and have the certification. And that is what the DRE prong sort of seems to say. If you're trained and certified, it sure sounds like it comes in. And there's a little bit of difference there. I mean, the HGN prong says when the test is administered in accordance with the training on how to do the test, it comes in. They're reading that language effectively into the prong addressing DRE testimonies, saying you still got to do the test right. And if you don't follow the protocols and don't perform the test correctly, you have grounds defendant to object or move to exclude it. This is something I think that comes up with quite a bit of frequency in impaired driving and related kinds of prosecutions like we saw here, second degree murder based on effectively impaired driving. The defendant can file a motion in limine at any point during the trial, at or before the trial, and ask for an evidentiary hearing on this. I think that's wise. I know DWI practitioners have made a science out of this, reviewing a video of an officer performing field sobriety tests. The most reliable of which is the HGN, horizontal gaze nystagmus test, where they look for twitching in the corner of your eye. And can just end up keeping out that HGN test altogether when they can show by watching it on video and cross-examining the officer that you didn't really do the test right. You know, you're supposed to be at four inches from the face. You were at 10 inches. You're supposed to hold it at a maximum sustained deviation for this long. There's plenty of really detailed steps. And I think even for trained officers, it's easy to get those wrong in the middle of the night on the side of the road. Some officers do them great, but in any event, Moore, this July Court of Appeals case is a good one, a good reminder that, you know, 702 is not as absolute as it sounds when it comes to this drug recognition and HGN testimony. And a good reminder that it can be error to admit it when it wasn't done properly. Good case for the defense there. My colleague Bilal El-Rahal is a professor here at the School of Government in the course group working on motor vehicle law and impaired driving law. And he is about to publish a blog post on this one on the North Carolina Criminal Law blog. So stay tuned for that one. Also in July, if my memory serves, the Court of Appeals finally republished this juvenile delinquency case, NRAJBP. And I think we talked about this at the time I originally wrote a blog post about it. When it was first released, it was the first case to squarely answer the question about probable cause and the odor of cannabis in the age of legal hemp. And the court there basically said, Nothing's changed, as regular listeners know. And that's where we are with things. But not because of this decision. This decision was withdrawn shortly after it was issued. And I think it's been like about a year or maybe more. In the meantime, we've had a string of cases that have decided the same issue. Those are State v. Cheyenne cases. State v. Rowdy, State v. Little, State v. Dobson. And those have been decided going back to September of 2024, as we've discussed on this show more than once. So when JVP gets put back out Recently, I had calls from the media, wow, what's the significance of this decision? Seems like they're rejecting this probable cause argument. I was just baffled. We've had this probable cause issue decided by the Court of Appeals since last September. But reading the current JVP opinion, you'd never know it because they don't cite to any of the other Court of Appeals decisions that all address the exact same issue or very closely related issues. Weirdly, the court cites to a case from last winter, State v. Real, where the odor of marijuana was found to help get to exigent circumstances, justifying a warrantless entry. Real is arguably not very on point. I mean, there wasn't squarely an argument in Real about the impact of odor of cannabis and legalization of hemp. at least not that I could see. But even stranger, we've had close to a year of decisions from the Court of Appeals addressing exactly this issue. None of those decisions are cited. Perhaps even more significantly, three of those decisions, I believe Cheyenne, Rowdy, and Dobson, maybe little too, I'm not sure about little off the top of my head, but I know for sure Cheyenne, Rowdy, and Dobson have been accepted for review at the state Supreme Court on this issue. And all three of those cases are set for oral argument on September 9th. So if you want to see our state Supreme Court grapple with these questions of probable cause and the odor of cannabis in the age of legal hemp, those can be viewed live. You can watch the oral arguments over YouTube at the North Carolina Supreme Court, or it might be administrative offices of the courts, YouTube channel on September 9th, I think starting at 9 a.m. I have to think, depending on what happens at the Supreme Court, we might see JVP also get sent up for further review at the Supreme Court or perhaps reconsidered by the Court of Appeals if the Supreme Court is to dramatically change the case law here. But so far, The odor of cannabis remains probable cause in North Carolina. And JBP, while it was out for a few weeks, it was the deciding word on this issue. It has been effectively superseded by other cases that were decided in the interim. while it was in withdrawn status waiting to be re-heard. And it's funny, just if listeners recall, this JVP case is out of Beaufort County. And this, for not the first time, I believe one of the same officers was involved in State v. Booth. where there was similar testimony, but one officer testified, I'm aware of what marijuana is, I know what hemp is, and based on my extensive training, I can smell the differences between hemp and marijuana. This is a scientific impossibility, as listeners know, and something that the trial court, in this case, didn't buy. The trial court expressly found that that was not credible. Not something we see a lot, right? Where the trial court just says, I'm going to find the officers not telling the truth here. It's not believable. But that was the finding by the trial court. And it was referenced in the, this finding by the trial court was referenced in the original JABP opinion. It is no longer referenced in the current opinion as far as I could see. You can check out JABP if you want. I'm really just letting folks know that these oral arguments are coming up at the Supreme Court on these issues in these similar cases. What might be our last case for the day is fresh off the press as this was decided and published on August 5th, 2025 from the Fourth Circuit, U.S. v. Johnson. Investigators are looking into fentanyl and heroin trafficking in the Maryland, D.C. area. It's a big old investigation. They get a bunch of wiretaps. They get surveillance. And all of this eventually leads a task force to believe Mr. Johnson is a big time fentanyl heroin drug dealer. And they think he's selling drugs from his apartment in Washington County, Maryland. You would think with wiretaps and video surveillance and that sort of thing, they might have had enough for a warrant. But for whatever reason, officers decide they want to do a canine sniff of this guy's apartment door prior to applying for a warrant. So they get with building management of the apartment building and arrange to show up at Mr. Johnson's apartment door with a drug sniffing dog at three in the morning. The dog puts his nose basically right up on the defendant's door and has a positive alert. So the fact of that positive alert goes into the search warrant application, along with a bunch of other information from the earlier investigation. and police are granted a search warrant to search this apartment the next day. As they suspected, they find evidence that Mr. Johnson is selling drugs. They found heroin and fentanyl, a mixture gun, some ammo, some cash, other evidence of drug dealing. The feds bring various drugs and firearms charges against this guy. Well, the defendant moves to suppress this evidence seized from his apartment, and he has a twofold argument. He says, one, I had a reasonable expectation of privacy in my apartment door. And you bring in a canine to my front door to sniff the air. Well, that's sort of like using some specialized advanced equipment to basically peer inside my home. The defendant pointed to the famous Kylo case, K-Y-L-L-O. In Kylo, police used a thermal imaging device to scan the inside of someone's home, I believe to try and determine whether they were operating a marijuana grow house. And there, ultimately, the U.S. Supreme Court said that we think was a search because you really are using some unusual technology. It's not really available to the public. I mean, this was like in the 80s, I think, or early 90s. you used it to expose parts of the defendant's inner home inside of his home that wouldn't otherwise be observable to you. That kind of use of technology to peek inside someone's home without a warrant is a violation of their reasonable expectation of privacy. And in addition to Kylo, the defendant argued about Florida v. Jardines. This was a case where the police in Florida brought a canine to the front door of a home out of the front porch and had the canine sniff around the front door. Justice Kagan wrote a concurrence in Jardine's, and she argued that that sniff at the front door was in fact a search. That wasn't actually the majority holding, though, as we'll get to in a second. Part two of his argument here for suppression was that this was a Fourth Amendment violation because it amounted to a trespass. The police trespassed into his curtilage, the curtilage of his apartment, in order to do it. That is what was actually the majority holding in Jardines. They didn't decide it on reasonable expectation of privacy grounds. They said bringing a canine to the front porch of a home was a physical trespass. It exceeded the scope of a normal knock and talk. That you can't do. You cannot take the canine to the curtilage and enter it without a warrant because that is not what kind of implied license exists. I mean, knock and talks are justified by this concept of implied license that the police, just like a Girl Scout or somebody delivering the paper or the mailman, can go up to your front porch and knock on the door. During normal times, you know, at what seems to be the main entrance of the home, the that's a legit knock and talk. If they're doing it at three in the morning, if they're creeping up in the middle of the night, if they're going around the back door, that exceeds the scope of a knock and talk. That's what Jardine's was all about. I thought he had a pretty good argument as to the curtilage thing, but the district court here denies this motion, says, first of all, a canine sniff, it's black letter law, a canine sniff of open air, which can only perceive the presence or absence of contraband drugs, the sniff is not a search, even when it's done at your front door. Mr. Johnson, we reject the idea that the front of your apartment door amounted to curtilage. You know, curtilage is a funky little concept. This comes up in burglary, which I teach some on to magistrates, and Your attached garage of your home is a part of the curtilage. If you've got a little garden right in front of your front porch, fenced in with the rest of your home, that garden is probably also the curtilage of your property. Definitely things like front porches, back porches, patios count as curtilage, but you see a lot of litigation both in the context of burglary and in Fourth Amendment law about where the boundaries of cartilage are. It turns out this is something that, of course, my colleague Jeff Welty has written about a couple of times on the criminal law blog, like going back to like 2010, 2011. But it wasn't really on my radar. And so reading this opinion, I was just thinking, like, do you have cartilage when you live in an apartment complex? I mean, does it matter? It would matter. I mean, not does it matter, but does it depend on the layout of the building? What's the deal with that? Here, the district court really hung its hat on the fact that there was no right to exclude other people, both building workers, other tenants, anybody in the building. And there was some evidence that basically the public was allowed to come and go as they pleased in this building. They could go wherever they wanted, including right in front of the defendant's apartment and in front of his door. So motion denied. Johnson goes to trial. He loses on all counts and is sentenced to 150 months imprisonment. And he raises this search argument on appeal. The Fourth Circuit notes that they've put out a couple of previously unpublished decisions about this kind of argument. In one case, it was a hotel room. In another case, it was an apartment building like Mr. Johnson's. Here, I think they're deciding we're going to finally weigh in with a published opinion. And they agree with the district court really on both counts. The sniff is just not a search. It's totally different from thermal imaging device, only reveals the presence or absence of drugs. And they noted, you know, almost all circuits agree that search is not a sniff, period, full stop, even at a home. I think Illinois is the one state they pointed that had reached a contrary conclusion that There might have been one circuit, too, that was a outlier. But that's pretty universally accepted. They said, yeah, we recognize Justice Kagan wrote this concurrence in Jardines arguing that it was a violation of this guy's reasonable expectation of privacy. But that wasn't the majority. It's not binding law. And we're we're declined to follow it until unless and until the Supreme Court tells us to. With the curtilage argument, I think it was a good argument and maybe a closer call. But again, Johnson ultimately loses. Good reminder, though, I've just had it ingrained in my head for so long as a practitioner and as a professor of criminal law that Sort of they can't do this to a house. They can't go up with a dog and have the dog sniff around the front door of your house. But apparently an apartment is different. They pointed to U.S. v. Dunn. That's where we get the factors on how to determine if something counts as curtilage, and that's a U.S. Supreme Court case. And those factors are you look at what are you claiming to be curtilage? How close is that to the home? Like I said, is it attached to the home? That's probably going to be a determinative factor. But otherwise, how close is it to the home? Is it enclosed with the home? Is there a fence around the whole area? That's going to make the curtilage argument a lot stronger. How is this claimed curtilage area being used? And what, if any, steps have been taken by the defendant to protect that claimed curtilage area from observation? We see it in the burglary context. The shed 80 yards away from the home is not curtilage. Barn across the street from a public road, not curtilage. Attached hot tub right out back, probably curtilage. Patio that's attached and covered or screened in porch, curtilage. Common area of an apartment building, like a hallway though, that's what we had here. They agree with the district court. This is just not curtilage. Mr. Johnson had no right to exclude others from that hallway. And really, his residence started and ended at the front door. The door was the line. The fact that it was set back a few inches from the rest of the hallway didn't make a difference. The fact that the canine touched the door didn't make a difference. He had no right to complain of the public using the space in front of his apartment to walk by, just like he has no room to complain about the police doing a 3 a.m. canine sniff of it. That hallway was just not part of his home. There was no trespass when officers conducted the sniff there. But in good news for apartment dwellers everywhere, the court here goes out of its way to say, we're really deciding this as a narrow issue. We are just saying on these facts, given what we know about this apartment building, this did not count as curtilage. But we acknowledge that Apartment buildings can be set up all different kinds of ways and different facts might lead to a different result. We're not announcing any kind of categorical rule that apartment owners can never have curtilage, but we're saying he didn't have any here. So this was unanimously affirmed. Really good discussion of these principles about the knock and talk, trespass onto curtilage, reasonable expectation of privacy, and just that, that reminder that there's sort of two different prongs by which you can argue a Fourth Amendment violation. You can say something amounted to a Fourth Amendment search because it violated your reasonable expectation of privacy, Or, under the theory of Jardine's and the earlier Jones beeper tracker case, where police installed a beeper onto a car to track it long-term without a warrant, when there is a physical trespass onto the property of another by law enforcement without a warrant, that trespass theory of the Fourth Amendment remains alive and well, and folks should remember to argue both when appropriate. This made me go look a little bit around at our state case law. And I'll just point folks to there's a North Carolina Supreme Court decision in State v. Grice, G-R-I-C-E, where they recognize the driveway and front porch of someone's home was constructed. The defendant lost in that case, ultimately, because officers were doing a lawful knock and talk in the middle of the day on some real property. But when they started to walk up to the front door of the residence, they could see buckets of marijuana growing. And this was back before hemp was a thing. So it was clearly, I think, to the officers, pretty clear that it was marijuana, or at least they had probable cause to believe it was. And the defendant ultimately loses that case. But there is a recognition of like, hey, the driveway counts as part of the home. The front porch counts as part of the home. And then we saw the same thing in Reed, R-E-E-D, from the Court of Appeals in 2007. And that's a little bit more helpful to apartment dwellers. There was a apartment patio connected to the back of an apartment, but shared by four different tenants. I guess four tenants had access to it. But the cover of the patio was connected to the defendant's apartment. And here the defendant is being interviewed by a detective on that patio. He smokes a cigarette and puts it out and then flicks it into the corner where some trash is. And unbeknownst to the defendant, the detective notices this. And as he gets up to leave, sort of puts his foot out and grabs the cigarette butt and kicks it off the patio where he later recovers it, gets a DNA sample based on that cigarette butt and eventually links the defendant to what I think were some very serious crimes. He won that argument that that cigarette butt should have been suppressed because effectively the detective committed a warrantless seizure of his property from his curtilage. And that was a big part of what Reed was about was like, does an apartment patio that's connected count as curtilage? Other people had access to it, but it was really close to the home. The court ultimately came down that this was indeed part of the curtilage. So, again, as the Fourth Circuit stated in this Johnson opinion, different facts will lead you to different outcomes, as we often see in these Fourth Amendment cases, extremely fact specific. I do think it's fair to say in general, living in an apartment complex, some kind of duplex, condo, townhouse situation, you're going to have lesser protections than in a standalone residential home where it's sort of more clear that the immediately surrounding area is for your use and your use only and that police can only go so far with it. I'll admit, I forgot about that nuance of Jardine's. I remembered police can't take a canine to your front door, but I had forgotten that it's because that amounts to a physical trespass, not because it violates anyone's reasonable expectation of privacy. And here you see the Fourth Circuit really doubling down on this language that a sniff is just categorically not a search. So that's when it's good to keep in mind that physical trespass theory. Just a great, interesting Fourth Amendment case all around. That is it for today, everybody. Thank you so much for tuning in. Big thanks to my studio wizard, Paul Bonner. Thanks to IDS and the School of Government for all of their support. Thanks to Monica Yelverton, my associate director for public defense education, for her logistical support. Thanks to my brother, David Dixon, for composing our theme music. You can listen to his stuff at David Dixon Music on Facebook or Insta. And most of all, thank you, listeners. I will be back in the studio soon, I hope. This is episode 21. 22 is to come. I'd love to hear from you if you have questions, comments, thoughts, suggestions for future topics. I can always be reached by email at dixon at sog.unc.edu. Again, that's dixon at sog.unc.edu. I hope to talk to you all again soon. Thanks, everybody.