Episode 24: NC Criminal Debrief

[00:00:00.858] [SPEAKER_00] Welcome everybody to the North Carolina Criminal Debrief. This is a podcast dedicated to covering criminal law developments in North Carolina and beyond. I'm your host, Phil Dixon, a faculty member here at the UNC School of Government and lovely Chapel Hill. I'm joined as always with my friend, producer, and colleague, Paul Bonner. Paul, big thanks on the ones and twos. And as usual, we've got a ton of good material to cover, so we're going to dive right in. I want to start us out with a case from the U.S. Supreme Court. The case is called Case v. Montana. Case involves the emergency aid exception to the warrant requirement. So I'm going to give you a little bit of a factual background here. Case, he calls his ex-girlfriend and reports that he's going to kill himself. She believes that he sounds erratic. She knows he's struggled with substance abuse before and assumed that he had probably been drinking. So she tries to talk him down, talk him out of it. But he starts talking about leaving a note for her to find, presumably a suicide note. She hears a clicking sound over the phone like a gun is being cocked. So she tells him, I'm going to call the police. You're really worrying me. Case tells her, well, I'll shoot all those police too. She hears a loud pop over the phone and then the phone goes silent. So she thinks he is probably just pulled the trigger and killed himself. So she calls 911, reports what's going on, and she drives as fast as she can over to his house. Police get there as well. Police are aware that this guy has mental health issues and substance abuse issues. He has threatened suicide in the past and at least once before he attempted so-called suicide by cop, you know, sort of trying to goad the police into killing you. They walk around the outside of the house and they shine their flashlights into the windows just to see what they can see. And they notice there are empty beer cans inside. They can see an empty gun holster and they can see a notepad with some writing on it, but they don't see Mr. Case. They call their chief at one point and are trying to figure out what to do. They ultimately spend 40 minutes outside considering what to do before they actually go in. But ultimately they decide he might have already shot himself. He could be bleeding out right now. Let's go in under the guise of emergency aid. There was, knowing his history, the police did still have a separate concern that what if he's trying to do this suicide by cop thing? You know, he could be injured and need help, but he also might be waiting to ambush us or to scare us in some way. So they go in armed and carrying rifles. So they loudly announce their presence. No one answers. They eventually start sort of sweeping the house to see if they can find him. And they find Mr. Case in an upstairs bedroom closet as they open the door. And this is not clear to me from the opinion, but they open the closet door. They find Mr. Case. He's holding a black object in his hand that an officer believes is a gun. And something happens that... Leads to one of the officers shooting the rifle at Mr. Case. They hit him in the abdomen and he is seriously injured. That's it. Case doesn't shoot back. The object was not a gun, turns out, but Case did have a gun right next to him in hiding in a laundry basket. And somehow this results in Mr. Case being charged with assault on an officer. So he brings a motion to suppress in that prosecution, arguing that this was an illegal entry by the police, that they needed probable cause to enter and didn't have it. Trial court denies that motion, finds this was a valid emergency aid entry. The jury ultimately convicts Mr. Case. This case is affirmed on direct appeal through the Montana State Supreme Court. The state Supreme Court apparently analyzed this as a community caretaking exception, which is closely related, maybe slightly broader. We'll come back to that in a minute. The court was aware of this 2021 U.S. Supreme Court case. I think we've talked about it before, Coniglia v. Strom, and that was all about the community caretaking exception. There, the officers entered somebody's home, and that person wasn't even home, actually, under the guise of community caretaking. And the court laid down... What seemed like a pretty firm rule that said community caretaking doesn't justify entering a home without a warrant. We usually see community caretaking applied on the side of the road, like somebody's car is parked on the side and... They're not committing a traffic violation necessarily, but the officer is checking on them to make sure no one's injured, no one needs assistance, that sort of thing. And those kind of encounters aren't really criminal law enforcement function. It is more of a quote-unquote community caretaking function, and that is part of police's job as well. But the Montana court knows that the U.S. Supreme Court has said in Coniglia community caretaking doesn't apply to going in a home. But they distinguished it by saying here there really was an ongoing emergency while in Coniglia they had already talked the guy into going to treatment and then went in his home to search for guns to make sure he didn't have access to them. I think they thought this was more urgent of a situation. It was reasonable for officers to think somebody was injured inside. It wasn't merely suspecting that maybe someone needs aid like we see in a typical community caretaking encounter. So the Montana Supreme Court rejected the notion that probable cause was the standard to justify this kind of quote unquote community caretaking. Again, they said that PC probable cause that's for criminal investigations. And this is an instance of law enforcement performing another type of function. This gets all the way up to the U.S. Supreme Court, and it's a unanimous decision for Montana. With Kagan writing for the majority, Sotomayor and Gorsuch are pinning separate concurrences. They say this is not community caretaking. It's the emergency aid exception. It's his own thing. They note that there's been a split among lower courts about what standard is required to justify an emergency aid entry like we saw here. Some courts have said you can do it without a warrant, but only when you have probable cause to believe that emergency aid is needed. The court says that's not right. Like the Montana High Court said, probable cause really is a standard for criminal investigations. It is not a good fit for this kind of emergency situation. Ultimately, the court said this case is squarely controlled by the 2006 decision, Brigham City v. Stewart. Again, 2006 U.S. Supreme Court case. And in Brigham City, the officers had a noise complaint. It was 3 a.m. in the morning. They get on scene. They hear commotion. They can see some juveniles, I think, in the backyard are drinking beer. And they can see in the window, through the window of the home, that there's been a physical fight. I think they saw some blows traded between a juvenile and some adults there. And they saw the juvenile, I think, spitting blood into the sink immediately after. And so they entered the home right away without a warrant under the premise of offering emergency aid to what they could see was an injured juvenile and what was a volatile situation. In Brigham City, the court said, look, the rule here is, does the officer have an objectively reasonable basis to believe there's someone inside who needs emergency medical care or attention? Objectively reasonable basis to believe aid is needed. That's the standard. And that's the standard that applies here. It's not probable cause. It's is there an objectively reasonable basis is not subjective. It does not look at what the officers were actually thinking. It looks what would a reasonable officer in the officer's shoes believe? They note that was met here. The entry by the officers was also otherwise reasonable. You know, it's not just did they have a reasonable basis to believe somebody inside needed aid. They also were the manner in which they entered the home was reasonable. They announced themselves loudly. They identified themselves. They were presumably in police garb. And so here they had that reasonable basis to believe somebody needed aid. They entered the home and went about their thing in a reasonable manner. I mean, arguably up until the point that they shot Mr. Case. Right. But putting that aside, the entry, I think, is really what was at issue here. And like in Brigham, Brigham City was a unanimous case. So was Case V. Montana. They talk about several different cases where this has been applied by the U.S. Supreme Court. They note that it was rejected as a theory in that Coniglia case that I mentioned, where the defendant left to go get treatment at the officer's suggestion, and then they entered the home after the fact when he was no longer present. That is not an objectively reasonable basis to believe aid was needed because they knew aid wasn't needed. And it certainly wasn't community caretaking after Coniglia because it was a home and community caretaking doesn't do that. Emergency aid will get you into a house under these lines of cases, but not community caretaking again. They note Montana basically requires reasonable suspicion to justify entry for emergency aid. That's fine. They can have that standard. They can set a higher standard if they want. The court notes that greater protections can be provided under state statutes or state constitutions. But as a matter of federal constitutional law, the court says this is not a PC standard and it's not a reasonable suspicion standard. It's just that objectively reasonable basis to believe that emergency aid is needed. And that is determined by examining, of course, the totality of the circumstances. It's important to note the emergency aid exception does not justify going into the home and searching it beyond what is necessary to determine whether a person is in need of aid. The officers would not have been justified in opening drawers or cabinets that were incapable of concealing a human. They didn't do that here. That helps establish that the manner of them executing this entry was reasonable, and that's where the court lands. The unanimous court says this entry was reasonable under the Fourth Amendment. They were quite aware of the potential danger here. They corroborated that potential danger with their own observations, and they announced their entry and their identity and purpose. An interesting case, perhaps not a groundbreaking one, but a good reminder about this emergency aid exception, a little bit of clarity as far as what the standard is under the Fourth Amendment for that. Like I said, I mentioned those two concurrences. Sotomayor writes separately to, she says, I agree with this result fully, but she suggests that, hey, de-escalation tactics might be a useful thing to attempt here or any time before you're entering a home. She re-emphasizes that the manner of the entry should, has to be reasonable and She noted that there was some evidence here that the defendant kind of wanted the officers to shoot him, which which might explain how he got shot. Right. The opinion is not clear at all how Mr. Case ends up shot in the gut and charged with assault on an officer. But my guess is maybe he lunged at them with a black object in his hand and that was enough. So she says there's some evidence that he wanted to be shot and maybe de-escalation would have been a better outcome here instead of the way that the officers went about it. But nonetheless, she says the standard was absolutely met on these facts. But she notes, and I think it's important for defenders to keep in mind, it will not always be objectively reasonable. It's a very fact-specific inquiry and different facts, as we see in these Fourth Amendment cases, lead to different results. Gorsuch's opinion just talks about that this exception has its roots all the way back in the common law, where even a private person could enter the home of another private person When there was reason to think there was an emergency going on or something, you know, you see your neighbor's house catching on fire. You're probably justified in going in there and trying to put out the fire. The same applies for police nowadays, according to Justice Gorsuch. My colleague Jeff Welty did a blog on this a short time ago on the North Carolina Criminal Law blog. He summarizes some of the cases from other circuits, analyzing the exception, looking at when it applies and when was it objectively reasonable, when was it not objectively reasonable. If you're interested in reading more on this, it's there. The bottom line, PC is not the standard. RS is not the standard. The standard is objectively reasonable basis to believe that an occupant needs immediate aid. And what is objectively reasonable depends on the specifics. Part of me is a little concerned that this could, in some theory, give officers a little more room to enter homes without a warrant by claiming that they believed an emergency was happening inside. But You know, when you look at the facts here, you had a really concerned ex-girlfriend. You had an established history of mental health, attempted suicide, substance abuse problems, explicit threats of suicide, explicit threats of threatening police. They knew he was armed. They corroborated that by seeing a gun holster and beer cans and what looked to be like a suicide note. Yeah, I think that does really get them there. And I think that's why the opinion ended up unanimous at the US Supreme Court. merely suspecting that someone might be hurt or in need of danger or having some suspicion is probably not enough and probably not going to be objectively reasonable, nor will it be when the emergency aid exception is used as an excuse to rifle through someone's entire belongings. But for what it's worth, that is case the Montana. I think we talked about the recent November case out of Avery County from the Court of Appeals, State B. Barthel. In an earlier episode, this was a First Amendment case dealing with some really offensive language directed at a county commissioner during a public comic period. I still am hoping to write about that sometime, but... The Fourth Circuit recently issued, just this January, January 9th, 2026, the Fourth Circuit released another big First Amendment case that I thought was significant. In U.S. v. Al-Tamimi, the defendant was a sort of a leader, an elder in the Muslim community, somewhere in the Eastern District of Virginia. You know, he wasn't a cleric, but he was a lecturer, and people looked up to him. A lot of young men joined the center under his leadership, and some of these young men connected with each other. This was really around the year 2000, pre-911, right?
[00:16:53.817] [UNKNOWN] Yeah.
[00:16:53.898] [SPEAKER_00] Some of these men that were associated with the Defendants Islamic Center decided that they were going to start training and preparing to wage jihad. And that's like the combat kind, not the spiritual kind, like they wanted to go fight in Pakistan and Afghanistan. And they start playing paintball together to practice their combat training. The defendant is not a part of this. It's just a group within his center that is doing this. But he does become aware of it at some point. But when he learns that they're training for jihad, he does not expressly condemn it. He doesn't expressly approve of it either. He's just sort of made aware of it. This gets on the FBI's radar and they start investigating the group. When agent approaches a member of the group and when the defendant hears about this, he reprimands the group and says, you're making your plans too obvious. Outsiders don't really need to know about this. You should probably try to be more discreet. Several group members of the paintball crew start collecting guns. Some of them begin planning travel to Pakistan to be trained by an Islamic militant group there. And a couple of members of the group had already done that. They'd already been to Pakistan and they'd received training from a militant Islamist group. The attacks on the World Trade Center happened September 11th, 2001. And the defendant calls together all the members of his Islamic center and says, folks, I think there's going to be widespread anti-Muslim sentiment in America. We should all be very careful. And he told one person, hey, gather up the closest brothers and let's come up with a sort of a backup plan in case there's like mass hostility against Muslims in America. He has a meeting with sort of select number of these people, which includes some of the people from the paintball group and tells the group members they need to repent their sins. They need to leave the United States of America and they need to go join the fight in Afghanistan, that being the fight between American forces and Taliban. He tells the men that if you're staying in the United States, you're going to be complicit in the U.S. fight against Muslims because if nothing else, the American government is using your tax dollars to fund the war in Afghanistan. He mentions the Pakistani Islamic group and says, these are folks that could train you. Some of you are on the right path of religion. And this lecture or talk from the defendant is impactful for some of the group members. And several members then go do travel to Pakistan and get trained. None of them ever actually fight in Afghanistan. But they do sort of do the initial training. Around October of the same year, 2001, the defendant held another meeting with some more adherents of his. Some of the same folks are present, and he says to the group, this time, you should support the Muslims in Pakistan and Afghanistan physically. If you can't do that, you should support them financially. If you can't do that, at least speak good of them and tell the world what good they're doing. And if nothing else, you should pray for them. By 2003, law enforcement is investigating this center and its members. They execute search warrants for the defendant's home and others. They interview people. They begin tapping their phones, recording their phone calls. And the defendant and 10 other members of the group are indicted for various charges federally in June 2003. It all relates to an alleged conspiracy to engage in combat against the United States. The defendant gives several statements to law enforcement. He acknowledges these remarks that he's made to the group, but he denies that he was specifically encouraging people to get combat training or to wage jihad. The indictment is later superseded and the charges are upped. He's eventually charged with things like conspiring to levy war against the United States, soliciting and inducing others to levy war against the United States, contributing services to the Taliban, a terrorist organization, inducing others to illegally use firearms. He pleads not guilty, but is convicted on all counts at a jury trial, and he gets life plus back to back to back to back consecutive sentences on everything else. The procedural history of this is insane because this is happening in, I think he was tried in 2003. While his direct appeal is pending, they say the opinion refers to certain secret U.S. government surveillance programs that came to light in 2005. I think those are the Snowden disclosures, if my memory serves. The case gets kicked back down to district court before the appeal is decided because he's complaining, I need to know more about the secret surveillance programs that the government was doing. And was I targeted illegal? Was there some Fourth Amendment issue that we would only now be finding out about? This doesn't get back up until 2014. So from 2005 to 2014, he's sort of fighting the fight, the discovery fight over secret U.S. surveillance programs. And once it gets back to the Fourth Circuit, even more new information about secret government surveillance programs come out. The U.S. Supreme Court also decides this U.S. v. Johnson decision. That dealt with the definition of a violent felony in 18 U.S.C. 924 and it being unconstitutionally vague. That affected the defendant's case in some ways. So he gets multiple remands from the Fourth Circuit back to the district court. And several of his convictions are vacated because of that Johnson decision in 2004. And before then, he got compassionate release or something during COVID. He got sent home during the COVID-19 pandemic in 2020. Between the time he served and all his convictions that were knocked off with the Johnson decision, He had served a big chunk of his sentence by this time. I mean, he'd, again, been in since 03, gets out in 2020. His appeal is still working its way through the courts in 2024. But he still had 360 months over his head, 30 years still left to serve. And so at this point, the appeal finally reaches the Fourth Circuit on direct appeal. His argument is, all of those things I said to my adherents are protected speech. The Fourth Circuit unanimously agrees. It's black letter law under the First Amendment that, quote unquote, abstract advocacy of lawlessness is generally protected speech. I can encourage people to break the law. And the court says mere encouragement of unlawful activity is quintessential protected advocacy. It only rises to the level of unprotected speech, encouraging someone to break the law, when it is incitement to violence, incitement to imminent lawlessness. That's really only half of the battle. It's like the speech has to be such that it incites or produces imminent lawlessness and is likely to cause such conduct. That's your Brandenburg v. Ohio incitement test, the 1969 U.S. Supreme Court case. Of course, some of this stuff, he did say you should go wage jihad, you should get trained in Afghanistan, you should support the Taliban, you should give them money. But there was no immediacy to any of that. It wasn't go do it tomorrow. It wasn't I'm telling you that and I know you're going to go do it. They say this was more on the side of abstract advocacy. They also considered whether this fell within the category of unprotected speech known as speech integral to criminal conduct. This is speech that facilitates or solicits or abets the commission of crime. And this comes to us originally from a civil case called Gibney v. Empire, Storge, and Ice Co., a 1949 U.S. Supreme Court case. I've written an article about this on the blog before, the speech integral exception. It's an interesting one. This is why things like solicitation to commit a crime, conspiracy to commit a crime, fraud, fraudulent misrepresentations. This is the justification for why those categories of speech aren't protected speech, because they are essential to the commission of a crime. If you and I agree to commit an armed robbery, let's say, We can have that conversation, but if we do so with the intent to really do those things, that agreement itself is illegal and it is not protected by the First Amendment because it's a conspiracy. Same thing if I seriously ask someone to murder my spouse, let's say. When you do that with intent that it actually be done, those are not protected speech because those words... are necessary to establish any solicitation of a crime. Same with fraud. You know, I've got a bridge to sell you. That's not protected when you do it in seriousness. Impersonation of an officer might be another example. And they said this didn't fit that either. It was, I'll quote, neither sufficiently eminent nor sufficiently definite to lose First Amendment protections under Brandenburg and he did, quote unquote, he did not help anyone commit crimes. To be sure, he encouraged them, but the most he did to further the commission of these crimes was to advise individuals in quite general terms on how to react to the September 11th attacks. I am old enough to remember the widespread, the reaction sort of across the country to the 9-11 attacks. I was, I think, a senior in college then. And there was a rise in anti-Muslim sentiment among the population. And there was quite a bit of law enforcement scrutiny on attacks. Islamic centers and mosques. And in some cases, as I recall, much of that surveillance was illegally done or at least done under dubious circumstances. Apparently that was a big factor here because, you know, I don't recall seeing a whole lot of other instances of an appeal dragging on so long, but that's what was going on here. that's a big one and you could contrast this with the case that came out last month or the month before in december i don't have the name of it in front of me but the guy was basically teaching bomb making to people and doing so with the knowledge that the person who was being taught was planning to use it against federal agents i mean it turns out of course it was an fbi agent acting undercover who was hoping to learn the bomb making skills. But same thing, a lot of discussion of these same principles. There's a federal statute there that says it's illegal to teach someone bomb making if you know that they're going to use that to commit a violent offense. And that's it. I can tell you how to make a bomb. I can't tell you how to make a bomb when I know you're going to go make one and use it against somebody to commit crimes. The defendant there was arguing. My speech was protected. All I did was put the information out there. I didn't know anything else. The government there prevailed. And they said, the court, the Fourth Circuit said, Mr., there was ample evidence here. You knew everything. this undercover agent was planning to use it against ATF and FBI agents. You advised him not just on how to make these things, but like the best way to set them up and defend your perimeter. And, you know, he had pipe bombs all over his house and booby traps set up. That one fell on the other end of the spectrum where, you know, that statue was narrowly drawn. It doesn't prohibit teaching bomb making or explosives making. It prohibits doing so with intent, with knowledge that the person you're teaching it to is going to use it. And that was met there. So there, that was properly speech integral to criminal conduct. It was not protected, even if it would have been absent the intent. just like it's protected speech for me to say, you know, me and Paul are going to go rob the Waffle House tonight. Ha ha ha. If I don't say it, if I don't mean it, if I'm saying it as parody or, you know, as hyperbole, you know, some days I just want to burn the office down. That's still protected speech. When I say, I'm planning to burn the office down, or, hey, Paul, let's talk seriously about setting the building on fire, that transforms it. And the key is often that intent or knowledge element. I like these First Amendment cases. It's interesting when we get to see them overlap in the criminal law world. And for those who are interested, consider checking out the Tamini case. And if you haven't read the Barthel case that I mentioned before about the county commissioner, you might check out that one as well. Moving right along, I wanted to flag Confrontation Clause case and some developments in the area of Confrontation Clause. And we've talked about this issue before. Of course, we covered Smith v. Arizona many months ago. U.S. Supreme Court decision sort of adjusting or arguably radically altering the way that we look at substitute analyst testimony. So somebody tests the thing, the drugs, the DNA, you know, whatever it is. Somebody tests it, generates a lab report. Some other expert comes in and reads the lab report and says... Yeah, the lab report is right. We used to justify this by saying, well, they're just using that other analyst report as the basis of their opinion. As long as they form their own independent opinion, it's fine. That's what the Supreme Court changed. And Smith said, you can't do that anymore. But they left open the idea that there might be non-testimonial data generated from a lab analysis that could be coming in. Now, we've seen two cases so far in North Carolina applying this, and I've written about both of them on the blog. Actually, three rather. I've written about two of those, and Shea Denning here has written about the third. State v. Clark was the first one. And I think that was just a really straightforward application of Smith. I mean, one analyst did the testing. They generated a report. They weren't available for trial. Somebody else came in and read the report and relied on that report over a confrontation clause objection. And the Court of Appeals gave them a new trial, just flat out. It was unanimous. Great. One development listeners should be aware of is that Clark has been accepted for review by the state Supreme Court. It is set, I believe, for oral argument in April. So stay tuned there. Then we had this case, State v. Lester, about machine-generated data. There it was automatically generated phone records. And it went all the way up to the state Supreme Court and they said, hey, these automatically generated records, these are machine generated. There is no person to question or confront here. Those kind of records are non-testimonial and they do not offend the Confrontation Clause. They're usually going to be business records as well for purposes of hearsay. So, you know, state can use this stuff. But Lester has dicta in there talking about other examples of machine generated data. I wrote at the time and I questioned some of it because I think they said, Motor vehicle data recorders, you know, things that your car is just automatically recording whatever your speed you're going, how hard you depressed your brakes. It's like an airplane black box. Most cars have that now. Airplane black boxes would be another example. The court in Leicester referred to seismograph machines that are just needles ticking, recording the movements of the tectonic plates. But Lester also referred to gas chromatography readouts. Most practitioners know that is typically how we test drugs with a machine that's called a gas chromatography mass spectrometer. And it does, you put the sample in and, you know, assuming you've handled the sample correctly and input everything correctly, it spits out data that then the analyst has to interpret and read and can tell you whether it's drugs or not. When I wrote about that Leicester decision, I really questioned that last piece. Because a seismograph machine, I mean, I suppose it needs to be calibrated right on the front end, but then it really is just running on its own all the time. Same with these event data recorders, black boxes, even phone records like the ones at issue in Leicester. There's just a machine or a software program spitting this stuff out. But with gas chromatography, it strikes me as like that's different. Somebody has to handle the sample, make sure the sample is not contaminated, put the sample in correctly, take the sample out correctly. That seems a little more involved. I mean, I questioned, is that truly machine generated data? And I was holding out hope that that dicta in Lester might not take hold or that we might get a little bit more nuanced of an analysis around drug testing equipment like gas chromatography. The U.S. Supreme Court case law, of course, is clear that like lab reports are testimonial and they implicate the confrontation clause. So it seems strange to me that you can sort of skirt the defendant's ability to confront the person who did the actual testing by saying it's non-testimonial machine generated data. But the Court of Appeals just doubled down pointing to that language, that part of the opinion in Lester. This was State v. Robinson. It's a January 21st case from the State Court of Appeals. The defendant was on trial for death by distribution of, I think, fentanyl and some other charges. It's out of Alamance County. And that's what we had here. The person who did the testing did not testify at trial. Instead, they had a forensic toxicologist review the gas chromatography report, review the toxicology report, and testified about his own opinion based on that report. To me, that sounded like the same kind of substitute analyst testimony that was prohibited by Smith v. Arizona. But again, citing to Lester, the Court of Appeals says... In North Carolina, gas chromatography results are non-testimonial, period, full stop. They are machine generated and therefore do not implicate the confrontation clause. So no error. Maybe that is the distinction in Clark. If I'm reading it right, the testifying analyst was really relying on the report of the non-testifying but testing analyst. Here in Robinson, it might refer to the report. I mean, they're not crystal clear about these things, but I could see perhaps that's a different result if you're just reading off the data spit out by the machine and then you're coming to your own conclusions about it. Maybe that's the needle to be thread here. In some sense, I was a little concerned with the Supreme Court granting review in Clark because, again, it seemed like a very straightforward application of Smith v. Arizona. And we saw in another case called Tate, that was the third case and the one that Shea has blogged about where sort of the same thing. They said generating a DNA match report on an unknown suspect. Well, that's just non-testimonial. Tate was an indication there's going to be some carve outs from sort of the more general rule announced by Smith. And this Robinson case is another step in that direction. I could see this issue eventually getting back up to the U.S. Supreme Court one way or another because many courts are sort of trying their best to figure out ways to lessen the burden for the prosecution in terms of providing witnesses at trial for the defendant to question. But to me, the core promise of the confrontation clause is that I get to question my accusers. And when somebody has done the testing, taken the samples, you know, stored the samples, that's the person that I want to be able to question. And I speculate that were this to get back, that that'll be the next thing that goes back to the U.S. Supreme Court. It only took us around 13 years or so, I think, for between Williams v. Illinois, this fractured plurality decision on substitute analyst testimony to get us to Smith v. Arizona in 2024. So it may not be quick, but my guess is that might be the next thing that the Supreme Court jumps in on is getting When are you really entitled to answer question the analyst and when is it machine data that is not sort of capable of being questioned? And in my mind, it may be more nuanced than what we're seeing from the Supremes so far. In closing, I'm not going to cover it today, but I would just note we talked a little bit either in the last episode or the episode before that about our newfound good faith exception to the exclusionary rule in North Carolina coming out of the North Carolina Constitution and the fact the State v. Carter case that used to say we don't follow the good faith exception in North Carolina because we have stronger protections under the state constitution. Well, that's been overruled. That was State v. Rogers. My colleague here, Joe Hyde, wrote about that. We just had the first Court of Appeals case come out post-Rogers. This is State v. Julius. It's technically Julius II. This case has already been up to the State Supreme Court, back down to the trial court, and back up to the Court of Appeals. And given what happened in Julius, my guess is it's going right back to the State Supreme Court because at the State Supreme Court initially, The court said this dealt with a vehicle stop and a search of a car that was immobilized, was not capable of being driven away on the side of the road where the driver had fled. The Supreme Court said no exception to the warrant requirement applies here. The officers messed up searching this car without a warrant. However, we're going to remand it to the trial court to determine the proper remedy. When that happened, the trial court didn't have any hearing, didn't hear any arguments, didn't take any new evidence, just took the remand and issued a new order that says, we think the good faith exception applies. And that's really interesting because I don't think the trial court would have had the benefit of Rogers at the time. And I believe it was... The state constitution was a part of it in that case. But the trial court applies the good faith exception and says even if the search wasn't justified, the evidence should still be admitted. And we think the officers had probable cause, which is a whole weird discussion itself because the state Supreme Court has already said no exception applies. We're tasking you with looking at the remedy on remand. And so for the court to go through this probable cause analysis to me is a little bit of a red herring. But we don't get a whole lot more clarity at the Court of Appeals. There's a majority opinion that all three judges on the panel, sorry, that there's a majority opinion joined by one other judge in result. But then there's a concurrence that says everything that majority opinion just said is wrong. But I agree that the good faith exception applies. Then there is a dissent that says both of those other judges are wrong. This is expanding the good faith exception past what it's intended to. It's meant to apply to warrants and things like that. Here, you're applying it in the context of a warrantless search of a car. And that's not what we should be doing. Now, you can look at it in terms of and one of the I think the concurrence makes this argument that. existing precedent at the time largely supported the officer's belief that he could do a warrantless search of the car. And if we look at it through that lens, as we talked about when we discussed Rogers, if I can say I'm relying on an existing statute or an existing case law that is later invalidated, well, that is something where good faith applies. But to the dissent, at least, that precedent was by no means clear. And it's not, could I maybe make a case for relying on precedent? It's when precedent clearly authorizes something and to the dissent, it did not authorize it here. This opinion doesn't appear to have any precedential value because all the only thing the two justices in the majority agree on is that the evidence can be admitted. The good faith exception applies, but they do not agree on how to get to that result. And the dissent categorizes at least one of the opinions as gibberish. If you've got some time and you want to dig into this good faith exception stuff, check out State Be Julius 2. It only came out in the last two weeks or so, probably the last week of January or so. Shea Denning has already put out a post on it on the criminal law blog. And I will be publishing something in the next week or so about just sort of the good faith exception basics, the exceptions to the exception, and the other context in which it applies. But that's quickly, I think, becoming a significant question for North Carolina courts is how far are we going to apply this? I mean, some of these judges at the Court of Appeals and in other jurisdictions are Really say anytime an officer's mistake is objectively reasonable, good faith applies. I think most other courts and the majority of the circuit courts say, no, it really only applies to clerical errors relying on existing statutes or clear case law or warrant or other judicial authorization. So look out for that. But with that, I think we're going to wrap up for the day. I want to thank Paul Bonner, as always. I want to thank my associate director, Monica Yelberton, for all her help with logistical support here for the public defense education team. I want to thank my brother, David Dixon, for his help with our music. A big shout out to David. If you like what you hear, you can check out more of his music at daviddixonmusic.com. on Facebook or Insta. And, uh, thanks to all of you listeners. Of course, if you have questions, comments, concerns, feedback, you want to give me, you can always reach me at Dixon at SOG.unc.edu. Again, that's D I X O N at SOG.unc.edu. I would love to hear from you and I hope to get back in the studio soon. Uh, thanks so much, everybody. Take care.