[00:00:00.892] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief podcast. This is a show dedicated to covering criminal law developments in North Carolina and beyond. We're coming to you from the School of Government studio here in lovely Chapel Hill. I'm Phil Dixon, your host and the defender, educator and a faculty member here at the School of Government. We're going to jump right in. As regular listeners know, we've been following the developments surrounding the FBI raid on the former president's Florida residence. Last episode, we discussed the rather unusual order entered by a federal district court judge appointing a special master to review documents that were seized by the feds from that raid for any privileged or irrelevant information. Most notably, that order prohibited the feds from using the classified or otherwise confidential records in their criminal investigation while this special master review proceeded. So even though the FBI had taken hold of documents that were marked top secret, highly classified, I believe sensitive compartmentalized information is another one of the designations. This order said feds, you can't look at that stuff, you can't use it until the special master reviews it first. I noted then that that was really an odd order to me and not something I'd seen before. But since then, the government has sought a partial stay of that order in the 11th Circuit. And their argument was, hey, the district court judge has no authority to order the government to turn over these classified or otherwise restricted materials to the special master because those are the government's records. They belong to us, the government. They cannot possibly be covered by any claim of privilege or personal interest by the former president. And the 11th Circuit agreed with the government there and issued that partial stay. They stayed the part of that special master order restricting the government's use of the records and requiring the government to turn them over. So at this point, the special master review of other documents, those that aren't marked sensitive, restricted, or classified, that continues. But this much of that district court judge's order on the use and disclosure of classified records has been stayed. Since then, the former president sought review of that 11th Circuit decision in the U.S. Supreme Court. Now I have to say, I'm no expert on federal jurisdiction, but I read this brief to the Supreme Court by the Trump lawyers, and I found it to be extremely convoluted, very technical jurisdictional arguments, basically saying the 11th Circuit had no authority to stay the district court's order. It was not in my mind the model of legal writing or analysis and I think it's quite a contrast when you look at the government's brief in opposition to Supreme Court review. That struck me as quite strong and well supported by law and facts. The Supreme Court, the U.S. Supreme Court, apparently agreed with the government or at least they implicitly rejected the former president's arguments because they denied review of that 11th circuit order in an unsigned per curiam order, no noted dissents. Since then, the government has gone back to the 11th Circuit, attacking the entire special master order and arguing that the whole thing should be set aside and reversed, not just partially stayed as to the classified documents. If you're interested, that's case number 22-13005 in the 11th Circuit. That was filed on October 14th. So we'll continue monitoring that story. Lots of moving parts and some of it's moving pretty quickly. So stay tuned and we'll keep you posted. Sticking with Trump news, relatedly, the House Select Committee investigating the January 6th attack on the Capitol said, recently conducted its final hearing and announced that they plan to subpoena the former president to testify before the committee. In response, if you thought the Supreme Court argument on this 11th Circuit order was weird, I think the letter that the former president sent to the committee was even stranger. Well, it begins in all capital letters repeating the lie that the 2020 election was stolen He gripes about his impeachments. The radical left complains that the committee should have been investigating non-existent voter fraud. This letter is full of random capitalization of words like fake news and voter fraud. And really astonishingly, the letter complains that the size of the January 6 crowd was not given more attention in the media. It's an interesting strategy. We'll see how that works out. But for the meantime, there has been, as I understand, either a subpoena has been issued or it shortly will be issued for the president to give personal testimony before that committee. Now, there's some speculation that this committee may disband with a new Congress, and in that case, the committee's subpoena will become moot and no longer enforceable. But relatedly, in a different proceeding where the same committee is trying to get some emails between Trump lawyers and associates, a federal district court judge ordered John Eastman, a former lawyer for Trump or the Trump administration, They ordered Mr. Eastman to turn over emails to the House Select Committee. They found that these are privileged emails, the attorney-client privileged, but they're subject to the exception for attorney-client privilege for crime or fraud. The crime or fraud exception says that if communications between lawyer and client are used to further a crime or to commit a fraud, that attorney-client privilege can be lost. and that's exactly what happened here. The emails apparently show that the former president and his advisors knew ahead of time certain claims relating to alleged voter fraud in Georgia were false. They not only pushed this narrative of non-existent fraud to the public, they included it in filings to the federal court, and these included the former president signing verifications of complaints in federal court. And if true, that is certainly some evidence of some problems, at least I think probably obstruction or potentially perjury. This, of course, is sought by the House committee to show the former president's state of mind ahead of those January 6 events. So where things stand right now, they may not get the deposition of the former president that they wanted, but the committee certainly got a win in getting these otherwise privileged and undisclosed emails. We will continue following that story as well. In other federal news, I'm sure folks heard President Biden announced blanket pardons for federal offenders convicted of simple possession of marijuana. All US citizens or lawful residents with a federal conviction or conviction in the District of Columbia are eligible. President Biden's also asked his Attorney General and the Department of Health and Human Services to consider rescheduling marijuana. Unlike state law, In North Carolina, we classify marijuana and marijuana products as a Schedule VI controlled substance. Now, that's typically considered something with a very low potential for abuse and that has some medicinal value. Federal law is not quite as progressive. It still classifies marijuana as a Schedule I drug on par with LSD or heroin. I think most people would agree that's not the most sensible rule, particularly in light of widespread legalization. We have now 19 states plus the District of Columbia where marijuana is recreationally legal. And in light of the widespread recognition of the medicinal benefits of the drug, we have 37 states now with some version of medicinal marijuana. North Carolina considered a very narrow medicinal scheme some time ago, but it died in the House and word is that it's not going to be taken back up again until 2023. So I think this is a welcome move, certainly by advocates in this area, but It's important to note this pardon is fairly narrow. I've seen numbers around the range of 6,500 people perhaps with one of these convictions for simple possession of marijuana, and that is a lot of people that qualify to be pardoned. But there is not a single person serving federal prison time for simple possession of marijuana. It'll help with collateral consequences, you know, getting your job or getting that student loan money, other things that are attendant to a criminal conviction. But it doesn't stop federal authorities from arresting somebody for simple possession of marijuana tomorrow. The drug remains illegal. It's on the books. It still can be enforced. This looks backwards to people who have previously been convicted. But moving forward, we're still in the status quo. That said, President Biden encouraged governors to take this on as well and take a look at this issue. And Governor Cooper, our governor, rose to that occasion. And he responded to this news by calling again for the decriminalization of small amounts of marijuana and is examining a similar move on a state level to potentially pardon past state offenders convicted of minor marijuana offenses. And that, of course, is a much greater number. I mean, I'm not sure how it compares to the 6,500 nationally of federal convictions, but certainly most drug cases, most possession drug cases are prosecuted at the state level. As I think I've noted here before, possession of marijuana and possession of marijuana paraphernalia are some of the most common offenses in district court. in criminal district court and state. So that I think would have a potential of making perhaps even a broader impact. And it's important to note that people are still going to prison for marijuana in North Carolina. It is not usually for amounts under the felony amount, but they do still get put in prison. Of course, our scheme there is that once you're over one and a half ounces, that's considered a felony. And it takes you 10 pounds to get to trafficking. Now that's 160 ounces. So anywhere between 1.5 ounces and 159 ounces, that could qualify as just class I felony possession. Now on those higher ends, you know, 150 ounces or something like that, that may well be treated as intent to sale or distribute. I would just note that's our scheme between one and a half and 159 ounces. is felony possession territory, but not quite trafficking. And we had a recent case called Stateby Highsmith, where a man, I think this was a Duplin County case, he was caught with a single bag of marijuana. It was eight ounces, or half a pound. Of course, that's over the felony amount, but it's far short of the trafficking amount. And he was tried for possession with intent to sell and distribute. He was also a habitual felon, so that charge was brought as well. The jury did not buy the intent to distribute evidence, and they convicted him only of felony possession. But with that habitual felon thrown in, he was sentenced to 33 to 52 months in prison, effectively for eight ounces of pot. So while this is an important and developing area, and I think forgiveness of minor misdemeanor marijuana cases is a significant development and improvement, and sort of overall justice in the state, these larger issues of the equity of putting people in prison for nonviolent drug offenses remains. I would note that the Task Force on Racial Equity made recommendations similar to these being espoused by the governor now I believe the governor had his support behind it then, but that's getting a lot more attention in light of these events. So I will return to that Highsmith case. We actually had recorded an hour-long episode just on cannabis. I know I've been teasing that for a while. Paul Bonner and I, my studio wizard here, we recorded this episode a couple weeks back. Summarizing all these cases, we've talked about Parker before, we now have this Highsmith case, and we got this biggie, State v. Teague. And Teague raised really interesting Fourth Amendment issues, and it offered some advice and insight as to how the panel viewed the impact of the industrial hemp act, our former hemp law, on criminal prosecutions for marijuana in the state. We busted our tails to get that recorded right away after the decision was released, and after we recorded it, but before we could get it edited, the opinion was withdrawn by the Court of Appeals. Notable, the appellate attorney in the case, Warren Henson, upon getting the panel's decision, which needless to say was not favorable to the defendant, he filed a motion asking the full Court of Appeals to sit and review the case. That's en banc review. at least a couple of years now, the Court of Appeals has had the ability to sit en banc, all of them together, weigh in and decide a case. And they can overrule the initial three-judge panel. That's what the attorney did here. He filed that motion for en banc review. The Court of Appeals on its own motion withdrew the opinion. That was not relief being sought by the appellate attorney. He wanted that en banc review. But the panel decided to take the opinion back instead of perhaps letting it go to the full panel. And notably, they did so before the state even had a chance to respond. The state does get an opportunity to respond to these motions for en banc review. and the panel yanked the opinion before that could even happen. So I don't know what you can read into those tea leaves. It was procedurally interesting to me. And apparently this has happened a couple of times before, where panel decision is issued, a motion for en banc review is filed, and the opinion is suddenly withdrawn, and the motion for en banc review is dismissed without prejudice. Back to square one on tea, we don't have a decision there. When we do, I will be sure to cover it, and we will probably circle back around to that episode focused on cannabis issues. Just something to know and think about for now, and I had assumed we would have an episode sooner than this one, but our episode had to be trashed, basically, since the opinion was withdrawn. But while we're on cannabis, we did get another one this week, State v. Booth from the Court of Appeals. Now it's got a bunch of issues going on, but I'm gonna focus just on the drug ID part. You know, two of the big issues surrounding cannabis prosecutions in the state. are of course the probable cause implications and the drug identification issues. As far as drug identification, our case law allows a trained officer to offer a lay opinion, doesn't have to be qualified as an expert, identifying marijuana based on its sight or smell only. And of course the argument is that case law sure seems suspect in the age of legal hemp. You can't tell this stuff apart by sight or smell. This was illustrated. I recently taught a cannabis session to some federal public defenders and as a part of that program they brought in a hemp farmer who brought in a hemp plant and and a pound of dried hemp flower, some extract products, all of which were based on legal hemp, and we passed this stuff around, we looked at it, we touched it, we smelled it, and by any measure, it is indistinguishable from marijuana. So, what's going on in Booth? This is a Beaufort County case. This officer gets up on the stand and testifies. Not only can he distinguish hemp from marijuana by looking at it, just by sight, He testified he could smell the difference in THC levels between the two. Let that sink in a bit. Needless to say, that's false and no such ability exists. If an officer has the kind of training to do that kind of olfactory analysis, the greater legal and scientific community would love to know about it. Trial counsel does not object to this testimony. They do not challenge this opinion evidence in any way. That means any challenge to this testimony was waived for appellate review. Now to veer off into some appellate procedure, if you'll forgive me for just a second. When there's an evidentiary issue which is unpreserved for review on appeal like we have here, you can still seek plain error review. Now that's a harder burden for the defendant to meet. Basically requires that you show a fundamental error occurred at trial and it caused prejudice. And here, the appellate attorney did raise plain error as to some other unpreserved issues in the case, but they did not argue plain error as to this marijuana identification testimony. So the net result of all that is that this issue really could only be argued as part of the sufficiency issue, the sufficiency of the evidence. Basically, the argument was this was the only identification evidence offered by the state. There's no lab. This isn't reliable. Therefore, the evidence is insufficient. That argument is foreclosed by a North Carolina Supreme Court case called Osborne. And that's what the Court of Appeals here said. No. When there is any evidence in the record identifying drugs as such, that counts for purposes of the sufficiency analysis. Even if the only evidence identifying drugs in a case is inadmissible evidence, but it was nonetheless admitted, that means it's enough to send it to the jury. And to put it in the words of the Osborne case, the rule here is that all evidence, competent or incompetent, all of it, if it's in the record, even if it's not supposed to be there because it should have been kept out, but it got let in, like we see here with this insane opinion testimony, that can all be considered for sufficiency purpose. So since there was some evidence here that was sufficient evidence to send it to the jury, the defendant's not going to win on appeal in the sufficiency category. I blogged about Osborne when it was released, and I'll probably write about this Booth case soon. And of course, we'll revisit some of this stuff in our cannabis episode coming up soon. If you want a deeper dive into this problem, go read the blog post. I think it was titled, Sufficiency versus Admissibility, Drug Identification After State v. Osborne. But to defense lawyers, please do not let this kind of nonsense testimony go unchallenged. The defense lawyer here should have objected on 702 grounds and made the argument that this is improper opinion evidence, that it's unreliable. And then you got to object again in front of the jury. If that had happened, the Court of Appeals would at least have reviewed the issue. It's pretty difficult for me to think a court would approve of these kind of unreliable methods, even in light of our case law. I mean, smell of THC levels is a new one for me. And it's a logical and scientific impossibility. And look, the same thing basically happened in Osborne. Osborne there, the substance was heroin, but officers were allowed to testify to the results of field tests. They were allowed to perform a field test in front of the jury, and they were allowed to offer lay opinions without any expert analysis that the white chalky substance was in fact heroin. Those are not reliable ways of identifying heroin and had a 702 objection been lodged, very likely that would have been kept out at the trial level or they could have been reversed for an abuse of discretion on appeal. But since it wasn't objected to, that issue was waived, all we're left with is sufficiency, and on sufficiency, the defendant's pretty much gonna lose every time because that improper opinion evidence still counts as sufficient evidence. It's a weird rule, but it's one that's very important for defenders to know. Just like the heroin in Osborne, the untested heroin, untested cannabis I think certainly also fits this bill. They don't have a test showing the quantified levels of Delta 9 THC. They don't have a reliable identification and it is incumbent on you defenders to raise and preserve that 702 challenge. I always recommend in these cases you should get an expert of your own, but short of that, at least make this 702 objection and make it specifically on 702 reliability grounds. A general objection will not do. And then be sure you preserve that issue for appellate review by objecting each time that opinion is referenced in front of the jury. It's notable that this whole line of cases, it's from the Fletcher, it begins with a case called State v. Fletcher, I think from 1988, that allows this visual and olfactory identification of marijuana. Obviously that far predates hemp, it predates us becoming a Daubert state with arguably a little bit higher standards for the admission of expert testimony. That has been challenged before, and it was recently challenged in a case called State v. Author at the Supreme Court. And I believe the Court of Appeals tossed that out, basically saying this is a nothing burger, Fletcher says what it says, I don't think the opinion was even published. but the appellate attorney in Arthur filed a petition for discretionary review, seeking discretionary review at the state Supreme Court, and they granted that petition. So the Supreme Court has just, our state Supreme Court, has just accepted a case exactly on this issue of whether the visual identification and identification by sight and smell only is a sufficient and reliable way of identifying marijuana. You know, there's a logical common sense argument there. I think we just kind of went over the basics of it in reviewing the Booth case. But I found it really interesting. There's also this argument that basically the Court of Appeals has misinterpreted the precedent on State v. Ward. They've basically been citing a court of appeals version of Ward when obviously the Supreme Court version of Ward controls. And I think it's a pretty compelling argument just on the precedential analysis. So you might want to check out the filings in State v. Arthur. The defendant's brief was just filed in the Supreme Court this week. So it's on the electronic filing site. That's A-R-T-H-U-R-Arthur. All right, and I know we veered into cases a little bit, but I did wanna flag a couple of other things because North Carolina was in the national news quite a bit this week, and it's worth noting that in a Harnett County case, during jury selection, the judge presiding has a rule that all jurors need to wear a mask in the courtroom during proceedings. And one juror took issue with that and refused to put on the mask. And as I understand it, the judge said, look, you're going to have to wear a mask and follow my courtroom rules or else I'm going to hold you in contempt and put you in jail. And the juror refused and was given a short jail sentence. I believe it was 24 or 48 hours in jail. And he went to jail. presumably was then excused from the jury pool as well. This has made a splash in certain media circles, you know, I'm not going to weigh into the mask controversy. I would just say from a practitioner's perspective and from a practical perspective, it is really beyond dispute that a judge gets to set the rules of decorum in their courtroom. And, you know, I've seen that applied arbitrarily, particularly when I was a young lawyer, particularly towards female attorneys. You know, we can argue about that. And certainly there are some limits at some point where the judge's rules may become arbitrary or discriminatory. But I think they probably have the authority to require masks in their courtroom. And as long as the people in the courtroom are given notice and given an opportunity to comply with these rules, once they're made aware of them, if they didn't see the signs, you're going to lose every time on challenging a Superior Court judge on his or her rules of decorum. That's what happened to this man. I can't say I think it's a huge surprise or that I feel very sympathetic for him, but certainly people can debate it. But that was a story that went viral nationally this year. We also tragically had a mass shooting in Raleigh committed by a 15-year-old juvenile. Five deaths occurred and the shooter remains, I believe, in critical care due to a gunshot wound I don't have much to say except that this is, of course, a tragedy. The DA has indicated they plan to try him as an adult if and when he regains consciousness. I have been planning to do a show on gun laws and gun rights in the state. But I did do a blog some time ago and the context of the blog was really about when is a person eligible to have their guns returned to them. And I'm going to have my friend Rob Broughton on the show soon. We're going to dive into that issue a little bit more and review some of the things in that blog post. But I would just note in the process of doing that post, I discovered, you know, what I think are some pretty gaping holes in our system. I mean, we don't so much ban gun possession for certain categories of people. We ban them being able to get a purchase permit or carry concealed permit. But there's not necessarily a prohibition on possession of the weapon. And I'll give you a for instance. If you're under a 50C stalking order, no contact order, this is for non-domestic individuals, restraining orders for unlawful sexual conduct or stalking kind of behavior, harassing kind of behavior by someone with whom you're not in a domestic relationship. There's not even a prohibition on those people getting gun permits, much less being in possession of a gun while they're under that order. And if you contrast that to the domestic violence protective orders, you know, that can be ordered in a DBPO case and federal law says you're disqualified from possessing a gun when you're under a DBPO. But not a 50C. And another thing that stood out was that we don't really have age limits on possession of rifles in this state. We do have a law that says if you're under 18, you can't possess a handgun. And we have another law that says if you're under 12, if you're 12 or under, I believe, you're not to possess any weapon without your parents' permission or a supervisory adult's. without the supervision of an adult, excuse me. But that means that between 12 and 18, while the children in that category are not allowed to possess a pistol, there's no problem with them possessing a rifle. So again, just something to think about. I will, again, come back to this issue in a future episode. We've been trying to schedule with Rob for a while, and we'll get him in here soon, and we'll go over some more gun stuff. But Not really criminal law related, but I did want to just kind of flag it. There was apparently a report made to the Statesville-Iredell County School District about perceived problem of children wearing animal costumes or furry costumes at school. report was was that teachers were allowing these animal costumes including like head masks and that they even were allowing litter boxes for the dressed up animals in the school bathrooms. The school district apparently investigated that and determined that was not happening in their school district but have now started considering amendments to their code of student conduct to clarify that these kinds of costumes would not be permitted. It's kind of funny on one level, maybe not criminal law related, except insofar as when you do start piling on more and more regulations and things about code of conduct, this can contribute to a problem that is known as the school to prison pipeline. I don't think this is really a problem. I assume most existing dress codes pretty much anywhere would prohibit kids from routinely coming to school in effectively Halloween costumes, but noteworthy that that regulation is apparently under some kind of serious consideration. All right, that's it for news, but not quite it for cannabis. Our first case is a Fourth Circuit case from Northern District of West Virginia. This is called USV Runner. What we had here was an anonymous tip about a woman in a particular car. The tipster said this person is using IV drugs, intravenous drugs, is shooting up in the parking lot. Officers respond and they find the car as described. It has a woman in it as described, but she isn't impaired and she isn't using IV drugs. She actually rolls up her sleeves and shows the officers, see, I don't have any recent needle marks. She did have marks on her arm consistent with older IV drug use, but nothing very recent. And she doesn't seem impaired. So she agrees to have the officers search her purse, but when they want to search the car, she says, you know, it's not my car. He's inside a Walmart. you'd have to ask the driver. So while they're waiting there, a drug recognition officer arrives. They're standing around and this DRE officer sees a stem pipe in the center console of the car just sitting out in plain view. A stem pipe is sort of, I'm not sure how to describe it, it's basically just a glass tube. It's frequently used for smoking meth or crack cocaine or marijuana. And the officer couldn't tell if the pipe was clean or dirty, like that is if it had been used or what kind of residue, if any was on it. But eventually the driver comes out, they say, we think we have enough to search based on this tip and the view of the pipe. And so they do, they search without a warrant or consent, just based on that anonymous tip and the pipe. And what did they find? methamphetamine, gun, ammo. This leads to a firearm by felon prosecution, of course by the feds. Mr. Brunner raises his motion to suppress, basically saying this was not probable cause. And he brings a, I think it's a hemp store owner, basically, to testify at suppression. And his witness establishes before the trial court, that's a pipe I sell at my hemp shop. People use it to smoke legal hemp. It's not just contraband anymore. So, you know, that shouldn't really add up a lot to the probable cause. The trial court denied the motion. He's convicted. And the Fourth Circuit on appeal affirms They said this is a close case and it noted we've never had occasion to decide if a pipe standing alone suffices for probable cause. They said, here, this is really not an intrinsically innocent object, even if it has some legal uses. The testimony from the DRE officer is that this is usually used to smoke drugs. And I think that's probably right. And he identified it as such on scene. And the court pointed to this tip. They said, well, You know, they didn't fully corroborate the tip insofar as the woman was not apparently using IV drugs, but they partially corroborated it because there was the woman there as described, she was in the car as described, and the location described. All of that plus the tip, that was a fair probability of criminal activity. But the panel noted this was not a pipe only case. And they said that could be different. And that's something we're seeing pop up in our state cases, right? We've talked about Parker before. I think I mentioned Highsmith earlier. And in Parker, in part, the decision came down on the probable cause issues of, well, it wasn't just odor. There was something more. There were some admissions. There was other suspicious evidence. Same thing in Highsmith. The guy was known to officers and it was argued even at the suppression level, in Highsmith it was a dog sniff, but same thing, they're arguing sniff plus. We're not just relying on the sight of marijuana or the odor of marijuana or the canine alert. We've got something more. And that seems to be how this panel looked at it as well. They hung their hat basically on the partial corroboration of the tip alongside the pipe and the nature of this pipe. Would a different pipe be treated differently? I think that might be part of it. These particular stem pipes do kind of, you know, they do kind of look suspicious and are not something people, for instance, smoke tobacco in. But that might be a different result. Pipe only without the tip might be a different result. Where it was clear that it was a clean pipe and not just this fuzzy, we're not sure. Those all could be distinct differences. So just wanted to flag that as another in these line of cases that are raising and grappling with these hemp issues in the context of a probable cause. So it's an interesting one from the Fourth Circuit, USV Runner. Moving on and sticking with Fourth Circuit cases, back to Harnett County. These officers, I believe it was sheriffs in Harnett County, were running license plates just checking people's plates to see if they had valid tags and licenses. They see this Mr. Orozco's, well, it's not Mr. Orozco's, but they see the car that Mr. Orozco is driving. They run the plate and they determine the registered owner of that car, their license is suspended. So they start following this car. They apparently see him swerve twice over the line and they stop him on that basis. The defendant is not the registered owner and immediately tells them, I don't even have a driver's license. It's never a good start to a stop. When he's asked about his travel plans, like, hey, where are you going? Where are you coming from? He looks down in his lap, the driver, he has a GPS application running on his phone and he doesn't respond to the officer's question about his travel plans. He instead quickly closes the GPS map on his phone. Eventually he comes up with, well, I'm in the area sort of looking for farm work. Officers notice that he is profusely sweating and seems quite nervous despite having the air conditioning on full blast. And at this point, a canine is called who alerts. They noticed the dash looks kind of funny. It looks like maybe something's been done to the dashboard and indeed that K9 hits near the front dash. Turns out the panel falls right off and behind the panel there is over $100,000 in cash wrapped up in grocery bags. The defendant at this point says, look, I'm just the hired driver. I'm just paid to drive this car that in my money. I don't know anything about it. Well, these officers get in touch with the DEA, the drug enforcement administration and ask, Hey, do you know anything about this guy? Do you got his phone number and any of your stuff or, you know, and the DEA says, yes, as a matter of fact, this guy's phone number is tied to an ongoing drug investigation that we have. These deputies take Mr. Orozco into custody based on these traffic violations only, driving while license revoked, you know, crossing the center line. And as a search incident to his arrest, they find a $100 bill folded up in his shoe. And when they unwrap the $100 bill, five SIM cards fall out. These are little tiny memory cards like you can use on a phone. They're basically a flash drive, but they're very small. Small enough to fold into a $100 bill and put in your shoe. This is all occurring in front of the defendant. When he sees these flash cards, he grabs them and tries to eat them. And he manages to swallow one of them. So at that point, officers go apply for a search warrant for the defendant's phone and cards, these SIM cards, to look for evidence of drug trafficking. They've also ran a dog on the money and the money has tested, the canine alerted to the presence of drugs on the money. Now, I will say as an aside, that doesn't mean a whole lot in the scheme of things. And we recently saw a federal civil forfeiture case making that argument that like, hey, we all know that all money has trace cocaine on it and all of it will pretty much draw a reaction from a canine. So that's not necessarily a lot of probative value on its own. but here, much different circumstances, right? I mean, not the registered owner, doesn't have a license, sketchy about his travel plans, shuts down this GPS right away, and the hundred grand cash in grocery bags tucked behind his dashboard. Part of his argument was, you didn't have any probable cause to get those search warrants for my phone or the SIM cards in the first place because, hey, it wasn't likely to reveal evidence of the crime of drug trafficking. The court rejected that. This was very reasonable for the officers to assume. The phone, given he quickly closed the GPS app, he seemed to be using the GPS app to navigate where he was going with all this money, pretty reasonable to think some evidence of the drug trafficking scheme might be found on his phone. As to the SIM cards, I think that's a closer call except for the fact he tried to eat them in front of the officers. And the court notes that, says intentional destruction of the evidence right in front of the officers is usually going to get you there. So even if they didn't have that probable cause before, when he started eating electronic storage devices in front of the officers, that did get them there. And this turns out poorly for Mr. Orozco. Those cards contain child pornography. just to go in a whole different direction. So as soon as the officers stumble upon these child pornography images, they go get a new search warrant because the feds are actually really good about this. You know, if they are searching an electronic device, oftentimes there's an effort to cabinet to what the thing is you're looking for. It can be a Fourth Amendment violation to just rifle through everything when it's not likely that that particular evidence is going to be there. But that can be a thin line, and I don't think it's always clear. But, you know, they were looking for evidence of drug trafficking and they stumbled upon what appeared to be child pornography. So as soon as they did that, they stopped. They went and got new search warrants to look for child pornography now on the phone and on the SIM cards. And there is plenty on both. So he's charged with child pornography offenses, much easier case to prove than a drug trafficking conspiracy on these facts, probably. And that was his motion to suppress. It's like, hey, there is no nexus between this cash and these phones and cards. And he explicitly argued, look, cash is not contraband. It's not illegal to drive around with $100,000 cash. And the court said, yeah, we agree. That's true. Cash by itself is not contraband. But when you have a large amount of hidden cash with drug residue, with nervous behavior, with traffic violations, and all these other indicators of suspicious activity, that's probably enough for trafficking. And again, even if it wasn't, you help the officers get there by eating the SIM cards. When I teach this case, I have a cute little photo of a SIM card throwing up. because we need some levity with this stuff. In any event, I just thought it was an interesting nexus case. It's a good one to think about the limits of these computer, phone, and SIM card kind of searches. In the words of the panel, this was a model investigation by law enforcement. So kudos to those officers. All right, a quick hit, one more federal case, and I will get us out of Fourth Circuit territory. But this is interesting because we see standing coming up a lot. This is a good one from the Western District of North Carolina that touches on standing. You may recall a year or three back, there was a US Supreme Court case called Byrd v. United States. That had to do with what kind of expectation of privacy, if any, does the driver of a rental car have when they're not on the rental contract. That was effectively the facts of Byrd. The guy was driving the car. I think he had permission of the person who had rented the car but was not on the rental contract, was not an authorized driver, and the government wanted to argue. That means he has no privacy rights in this car whatsoever. As I recall, I don't have it in front of me, but I want to say it was either unanimous or an 8-1 decision by the U.S. Supreme Court in favor of the defendant. They said, the driver of a rental car may have an expectation of privacy in that car, even when he's not the authorized driver, but it's the defendant's burden to show an interest in that car. And where there isn't any interest, say he had stolen the rental car. Well, he has no interest in it at that point. That was the example the Supreme Court gave. If they don't show, it's the defendant's burden to come forward and show, hey, even though I'm not on this rental contract, I have some privacy rights to this vehicle one way or another. So this is USV Daniel, and that's what's going on here. This guy was wanted by the police already. They use some cell data to track him to a hotel. They see that he's driving this car, but they wait, wait till he comes out of the hotel room and they apprehend him. And they say, hey, what about this car? Weren't you driving that car? And the guy says, I had nothing. I don't know anything about that car. It's not my car. So they contact the rental company. They determine he's not on the rental contract. But the police tell the rental company, hey, this guy's been driving your car. He's not an authorized driver. Well, under the contract, that allows the rental company to take the car back. So they said, police, will you bring us the car? Police said, we're happy to. And when they got there, hey, rental car company, you mind if we search? They, of course, don't mind. There is a gun in the car. It is DNA tested, and Mr. Daniels' DNA is all over that gun. So he makes a motion to suppress, which is denied, and goes up on appeal. Fourth Circuit affirms this defendant had no standing to bring this challenge. You've got to show by a preponderance of the evidence that you have some interest in the car or other property. Had he come forward with some evidence that said, you know, my girlfriend rented it and I was bringing it to her, that might be a different result. But here he came forward with nothing to show he had any interest in this vehicle whatsoever. So no privacy rights here. So no Fourth Amendment violation here. Lots of this lately. I think we've talked about it in some earlier episodes. Just be ready for those standing arguments when it's an issue. You know, when it's your car, your house, not going to be an issue. But these weird situations, rental cars, people not on the contract, Important to remember, you may still have an interest there, but it's going to be your job to show it. Moving on, I wanted to cover this pleading case, State v. Lancaster. This is a good win for the defendant from Craven County. This involves the charge of going armed to the terror of the public. That involves being armed with, in the words of the elements, an unusual or dangerous weapon. Well, it doesn't have to be that unusual. Any gun qualifies. So armed with a gun, we could read that as for the unlawful purpose of terrorizing people by going about public highways of a county in a manner to cause terror. Those are the elements of going armed to the terror of the public. Here, we had an indictment for that that alleged he was going armed to the terror of the public by going around the parking lot of a private apartment complex. Did not allege anything about a public highway. It's interesting, this was actually an Anders brief. That's where the appellate attorney submits a brief saying, I can't find any issues to argue here, but court, I hope you'll take a look at it. Well, that's what was filed here, and the court looked at it and said, hey, we think there's an indictment error. Go back and brief that. So they did, and ultimately defendant wins on that issue. Again, it alleged he was going armed to the terror. of the public in a parking lot of a private apartment complex. The court goes through the history of this offense and talks about under the common law and in other jurisdictions, really anywhere public counts, sort of like a fray has to be in public or sort of like DWI, right? A public vehicular area under chapter 20 for purposes of driving while impaired and implied consent offenses, that really is everywhere. That would include a gas station parking lot or, you know, private apartment complex, I assume, if it was open to the public. But old North Carolina case law specifically requires that element of it happening on a public highway. And they said, for purposes of this offense, unlike DWI, public highway really means a road that's maintained by the public authorities. So fatal flaw, court never had jurisdiction. the conviction has to be vacated. Now, normally from a double jeopardy perspective, if the indictment is fatally flawed, that means jurisdiction again never existed. So the defendant was really never put into jeopardy. So a new proper indictment can be obtained and he can be tried again. However, given the court's ruling that a private apartment parking lot doesn't qualify as a public highway under our statute, I think the defendant's probably good here, unless there's some other facts to show that he was actually out on a public road. While he's winning on a technical defect here, it looks to me like the facts would not support an indictment or would not be able to meet that element of public highway. Good one for this crime and an interesting review of these pleading requirements. Interesting review of the old case law on going armed to the terror of the public. Do note, of course, being armed in public is not a crime and this opinion recognized that. We're, of course, an open carry state in the first place. So carrying your weapon around openly, at least as long as it's not a prohibited area, That's okay. What the essence of this crime really is, is the purpose to terrify in that public place. In light of the U.S. Supreme Court decisions on Second Amendment law, Bruin v. New York was the most recent one striking down New York's regulations on gun possession and transportation. Um, we're seeing a bevy of challenges to all kinds of gun regulations across the country. So we'll see, um, you know, where the, there might, there may be some tension between how this offense is interpreted and people's open carry rights, uh, for purposes of second amendment that has not been raised yet, but something we'll be keeping an eye on and thinking about. Uh, but an interesting one and a good win for the defendant in Lancaster. Alright, we're getting close to the end. I want to cover one more crimes case and a couple sentencing cases quickly and we're done. Out of New Hanover, we get State v. Fawcett. This case is about identity theft. He has some kind of fight at the trailer park. The defendant hurts somebody and gets hurt himself. He knows he has a warrant out for failure to appear, so when he goes to the hospital for treatment, he makes up a completely fake name, or so he thinks. He calls himself David Bostic, and he gives a date of birth. It's not apparently any real person's name or birthday. It's just made up. And now he gets out of the hospital, an officer later recognizes him, knows he's got that FTA out, takes him into custody, and he's still got the bracelet on from the hospital identifying himself under the name of David Bostic, even though his name is Fawcett. So he's taken in on the assault and that FTA, failure to appear, and then he's charged with identity theft for his use of this fake name. And of course, identity theft requires the knowing use of the identifying information of another person. It can be a living or dead person. It doesn't matter if I'm trying to pass myself off as Edgar Allan Poe. But if it's a real person and I'm knowingly using their identifying information with intent to fraudulently represent myself as that other person for purposes of avoiding some legal consequence, well, that's the offense of identity theft. Well, the guy here, the defendant, admits to the officer, yeah, look, I was using that name because I didn't want to be served on my outstanding warrant. So I was trying to avoid legal consequences. This is just really funny to me. The state finds a David Bostic in the neighboring county. It's a different date of birth, but he does have the name that this guy used and he testifies for the state at trial. You know, basically, yeah, I'm David Bostic. Yeah, that's my name. that this is my birthday. It's not the same birthday he used. I don't know this guy. I never gave him permission to use my identity. I don't know anything about this. He's convicted of this offense and others and appeals. And to the state's credit, they concede error on this one on appeal. They said, yep, we agree. That's not identity theft. The name, date of birth, address, that's all enough to get you there if these other, you know, fraudulent purpose, a purpose of avoiding legal consequence is met when it's involving another actual human being. Living or dead, any person, but it does have to be a real person. Here, this was just not the same guy, even though they did happen to land on the same name, David Bostic. The birthdays were off and were not close. And both the defense and the state here on appeal agreed, it's not identity theft to use a fake name where there's no intent to represent yourself as an actual other human. This made me think of the movie Superbad and that fake ID, McLovin. I don't think that's identity theft either. There's no person named McLovin out there. Now, is he committing fake ID? Are they possessing alcohol underage? All the other crimes committed in that movie? Sure, but it isn't identity theft. So a good limitation on that offense and kind of a funny set of facts. All right, we're wrapping up. As I said, I'm going to just quick hit these sentencing cases very quickly. We've had a couple. I got to talk about the trial penalty at sentencing in one of our last episodes. Let's talk about the right of allocution. This was a Wake County sex offender registration violation case, and he's also charged as a habitual felon. They tried to verdict. The guys found guilty of both. This is Mr. Wright, State v. Wright, out of Wake County. At sentencing, the trial court turns to the defendant and says, do you have anything you want to say? And the defendant says, yes, but I need to get my papers. Please, I need my papers in order to speak my mind and say what I want to say. The trial court says, well, what do you want to say? He says, I want to give a statement, but I need to get my papers. The trial court basically says, look, that's not relevant, and goes ahead and imposes a sentence. And the defendant expressed some unhappiness with that. He's like, really? You're not going to let me get my papers? Sentence is imposed. That's it. 15A.13.34 gives defendants a statutory right to allocution. That is to make a statement at sentencing. And that is based on a common law right that has existed for a very long time. Under our rules, the trial court is not required to ask the defendant if he wants to make a statement. But if there's a request to make a statement, as there was here, or if the trial court asks and the person says yes, as what happened here, it is reversible error to deny that request. And in my experience, this is very routine. Almost all judges, I think, ever have always said, is there anything you want to say before I impose a sentence? Many times I've encouraged clients to give that statement if I think it can be useful for them. For other clients, I have tried to make that statement on their behalf, depending on the circumstances of the case. But just important to note that right of allocution can result in reversible error, and that's what happened here. The man gets a new sentencing hearing just because the trial court effectively, that's how the court put it, they effectively denied him his right to speak at sentencing. The Court of Appeals goes out of its way to say, look, we're not saying you had to let the guy go get his papers. But you probably should have either allowed him to go get his papers or said, you know, I'm not letting you go get your papers, but you are allowed to still make a statement if you want to. And by sort of shutting him down in the middle while he's still blustering about how much he needs his papers, the trial court just went ahead and imposed the sentence. He said that was an effective denial of this right. New sentencing. So just know about that right of allocution and the fact that you can get reversed trial courts if you interfere with that. So err on the side of caution and let them have their papers and have their say. He's getting a habitual felon sentence. It seems like this is not too big of an inconvenience at the end of the day. Moving on, State v. Adams is out of Yadkin County. This was... A case of a couple parents who were apparently fighting over their child's custody or visitation rights and an officer rolled up on them as they were having a tug-of-war with the child in a car. They're both charged and convicted of misdemeanor child abuse as a result of that tug-of-war and they're all found guilty. Trial court imposes a 75-day sentence, suspended, and they're put on, I believe, 18 months of supervised probation. Well, they enter notice of appeal. And under 15A-1451, notice of appeal stays probation. It stays probation. It stays all conditions of probation. But here, the trial court said, fine, I understand you've given notice of appeal. We'll stay the probation pending the duration of the appeal. So the trial court knew the proper rule here, but apparently thought it had the authority to say, you parents have to go complete a parenting class right now, even while the appeal is pending, even before your probation starts. We're not going to wait on that. You've got to do a parenting class now. they lose this appeal every which way except on that issue. It is error to require the defendant to do any condition of probation while the matter is up on direct appeal to the Court of Appeals because it's stayed under that statute and probation is stayed of those intermediate probationary sentences. They're completely stayed, so no putting them split, no putting them in drug classes, or no putting them into parenting classes here. However well-intentioned I'm sure the trial court was, this effectively required a remand for a new sentencing. For our last case, just wanted to touch on this interesting one from Mecklenburg County, State v. Campbell. It deals with joint convictions and how they should be treated for prior record level points. In Campbell, the defendant was convicted of sale of cocaine and possession of cocaine. So the judge here sentences him on the sale and then says, you know, I think they recognized you would be eligible for a 90-96 here normally for the possession offense. But, you know, you just got convicted of sale in the same case. So no 90-96 for you. We sentence you on the possession offense as normal. Well, on appeal, the defendant challenged that and said, no, I should have gotten considered for a 90-96. And the Court of Appeals agreed. They said, you know, joined convictions. These two things were tried together. They were sentenced together. they don't count for prior record level points and by extension they can't count to disqualify you from that 9096. So I mean had he had a sale conviction the week before in a different matter and then got this possession offense, sure he's not eligible. He has a prior controlled substance conviction but the use of joint convictions like this was improper and it was error to deny him a conditional discharge based on the joined sale conviction when he's otherwise eligible. Take a look at State v. West. That's 180 NC App 664-2006. That's sort of where this rule is derived. The use of joined convictions, the court said in that case, is unjust and contravenes the legislative intent using these for prior record level points. Jamie Markham wrote a good blog on this back in 2014 that I believe is entitled something along the lines of The Use of Joined Convictions for Prior Record Level Points. In his blog, he notes there's been some inconsistent case law on this since here, where if there's sort of a big enough break, like let's say I go to trial on five counts, the jury hangs on two, and I come back a year later to be tried on those two. Well, those were still joinable offenses and joined originally, but some cases have distinguished it where there's a large break in time. But I think one, you know, sort of the more just rule is if these were ever joined or if these were ever tried together, they shouldn't be tacked on as extra points just as a matter of equity. And as a matter of precedent, you know, we have in race civil penalty, which says the earliest panel decision of the Court of Appeals controls. And it looks to me like West is the big one here for this and the structured sentencing context. Don't let the convictions that are obtained at the same time, don't let the state or the trial court try to pile on additional sentencing points for those convictions. We can extend that principle even to this context, where even with an additional drug conviction at the same time, The guy was still 9096 eligible on the possession offense when they were joined. That's it for our show today. I hope everybody enjoyed it. It's good to be back in the studio so soon. I'm going to try to keep getting back in here every two or three weeks the best I can. And I do have a little bit of time coming up with a teaching pause after a marathon of teaching over the past month. Thanks to Paul Bonner, our studio wizard here at School of Government, as always. Thanks to Monica Yelverton, Associate Director of Programs and Trainings for the Public Defense Education Team. If you like this podcast, please like and subscribe it. Tell your friends about it. I'm continuing to get just tons of great feedback from all kinds of court system actors. Let me know what your thoughts are. Let me know if you have ideas or suggestions for topics. I really do appreciate all of you who have sent me feedback and have sent me topic suggestions. I'm not able to get to all of them or certainly not in the time that I would like, but I'm keeping up with them. So keep them coming. There's a list. Get your topic on the list if you like. Thanks again, everybody. I'll talk to you all soon. Take care.
Episode 5: NC Criminal Debrief
This episode covers the latest in federal and state criminal law news, recent Fourth Amendment cases from the Fourth Circuit, new developments in cannabis and drug identification in the state, new state cases on identity theft and going armed to the terror of the public, as well as a review [...]