The Need for (Evidence of) Speed

February 9th, 2010

by School of Government faculty member Shea Denning

A civil case decided by the court of appeals last week, Blackwell v. Hatley, addresses when a witness may testify as to his or her opinion of how fast a vehicle was traveling.  In Blackwell, the court held that an accident report prepared by a town police officer estimating the defendant’s speed at the time of the crash was inadmissible because the officer had not seen the accident.  The court likewise held inadmissible testimony about the defendant’s speed proffered by the plaintiff’s accident reconstruction expert on the basis that the expert had not seen the accident, which occurred in 2004.  The date of the crash was significant with respect to the latter ruling as the court recognized that N.C. R. Evid. 702 was amended in 2006 to permit a witness qualified as an expert in accident reconstruction who has performed a reconstruction of a crash or who has reviewed the report of investigation, with proper foundation to give an opinion as to the speed of a vehicle—even if the witness did not observe the vehicle moving.  See N.C. R. Evid. 702(i).  Because the Blackwell accident occurred before the effective date of this provision (August 21, 2006), the court applied the rule from pre-amendment case law that permitted the admission of such evidence only if the expert witness saw the accident.

State v. Davis, ___ N.C. App. ___, 678 S.E.2d 385 (2009) demonstrates how Rule 702(i) applies in a criminal case involving a post-amendment crash.  In Davis (discussed here), a state trooper who did not see the accident was qualified as an expert witness in accident reconstruction.  Based upon his investigation, which included measurements and analysis of the weight of the vehicle in involved, the trooper testified as to his opinion of the speed the defendant’s vehicle was traveling just before the collision.  See Defendant-Appellant’s Brief at 6; Brief for the State at 8, available here.  The admissibility of this evidence was not challenged on appeal.

So, under current law, a witness qualified as an expert in accident reconstruction may, upon meeting other foundational requirements, give an opinion as to the speed a vehicle was moving, regardless of whether the expert saw the vehicle moving.  Any other person may only testify as to his or her opinion of a vehicle’s speed if the witness saw the vehicle in motion.

What about lay witnesses?  Can a person with no training in estimating speed testify about how fast a vehicle was moving?  You betcha.  The state supreme court has explained that “a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed.”  Insurance Co. v. Chantos, 298 N.C. 246, 250, 258 S.E.2d 334, 336 (1979). Indeed, in Blackwell, the court held admissible testimony from two lay witnesses who saw the accident from across the street and estimated the defendant’s speed.

But wouldn’t evidence of speed based upon a radar reading be better?  Not necessarily . G.S. 8-50.2 provides that the results of the use of “radio microwave, laser, or other speed-measuring instruments” are admissible as evidence of the speed of an object “for the purpose of corroborating the opinion of a person as to the speed of an object based on the visual observation of the object by such person.”  Indeed, in State v. Jenkins, 80 N.C. App. 491, 342 S.E.2d 550 (1986), the court granted the defendant a new trial based upon the trial court’s intimation, in response to a question from the jury, that defendant could be convicted solely upon the radar measurement of his speed.  The Jenkins court explained that “[t]he General Assembly has provided that the speed of a vehicle may not be proved by the results of radar measurement alone and that such evidence may be used only to corroborate the opinion of a witness as to speed, which opinion is based upon actual observation.”

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New Criminal Charges as a Violation of Probation

February 8th, 2010

by School of Government faculty member Jamie Markham

It is a regular condition of probation that a probationer must “commit no criminal offense in any jurisdiction.” G.S. 15A-1343(b)(1). The condition is straightforward enough in theory, but it raises some tricky issues in practice.

The main difficulty stems from the question of when a probationer can be said to have “committed” a new criminal offense. Is it when the new charge is brought? Or is it upon conviction of the new crime? In 1960, the Supreme Court of North Carolina said that a pending criminal charge should not serve as the sole basis for revoking an offender’s probation “unless there is a conviction on the pending charge or there is a plea of guilty entered thereto.” State v. Guffey, 253 N.C. 43 (1960) (emphasis added). Read alone, that language would appear to require the State to proceed on a new criminal charge first and reach the related probation violation only in the event of a conviction. Subsequent cases have, however, made clear that a probationer is not entitled to a jury trial on a new charge before probation may be revoked for commission of a new criminal offense. Instead, the court hearing the probation violation can make independent findings—to its reasonable satisfaction—that the offender violated probation by committing a new criminal act. State v. Monroe, 83 N.C. App. 143 (1986). What the court cannot do is determine that a new crime was committed based on the bare fact of the new charge alone.

Even if it is legally permissible to hold a revocation hearing on a new offense before there has been a criminal trial, there may be sound reasons not to. For example, postponement of the revocation matter forestalls any argument that the defendant was forced to waive rights against self-incrimination in the criminal matter by handling the probation matter first. Moreover, the probation laws give the State the tools it needs to wait on the probation violation hearing without fear of losing jurisdiction to act; the tolling provision of G.S. 15A-1344(g) will keep the case open for as long as any new charge is pending. Division of Community Correction policy requires probation officers to discuss new criminal charges with the district attorney and leaves it to the DA to decide whether to proceed with a violation hearing before conviction. DCC Policy V.H.11. Sometimes it will make sense to hold the violation hearing first—which is permissible, although the court should be sure to make independent findings that the criminal act occurred. Even better would be to reserve the violation hearing–first option to cases where there are other technical violations in addition to the new criminal offense.

Suppose the State decides to wait until a probationer has his or her day in court on the new charge before proceeding with a probation violation. If the probationer is convicted, the violation hearing will be simple enough—a conviction is clear evidence that regular condition #1 has been violated. But what if the probationer is acquitted of the new charge? The longstanding black letter rule is that probation should not be revoked on the basis of a new criminal charge of which the probationer has been acquitted. State v. Hardin, 183 N.C. 815 (1922). That does not, however, mean the behavior that led to the charge is entirely off limits as the basis for a probation violation. In State v. Causby, 269 N.C. 747 (1967), for example, a probationer was charged with the crime of possessing intoxicating liquors for the purpose of sale. He was acquitted of that new charge because he didn’t have enough alcohol to satisfy the elements of the offense, but the court nonetheless revoked his probation for violating the condition that he not have any “whiskey, beer, wine, or other alcoholic beverages on his premises for any purpose whatever.” The supreme court upheld the revocation, saying an acquittal on a new charge did not bar a judge from revoking probation based on the facts and evidence underlying that charge, so long as the revoking judge made independent findings that those facts constituted a technical violation.

Finally, no matter when the violation hearing happens, remember that under G.S. 15A-1344(d) probation may not be revoked solely for conviction of a Class 3 misdemeanor.

Posted in Procedure, Uncategorized | 5 Comments »

Blog Milestones

February 5th, 2010

I just read this article, which cites a new study in support of the claim that “blogging is quickly becoming the thing that un-hip old people do.” Ouch! Apparently, hip young people think blogging is sooooo 2006, and they’ve moved on to social networking sites like Facebook. Of course, things move more slowly here in academia — home of many un-hip old people — where we are only starting to discuss the merits of blogging as scholarship.

Anyhow, all this, plus the fact that we just passed the first anniversary of this blog, led me to conclude that it would be worth a brief “state of the blog” post. In short, the blog has far exceeded even my highest hopes for it. It has grown enormously from its humble beginnings, recently passing 200,000 total hits. Last week was the busiest week ever, with over 10,000 hits, and last Monday was the busiest day ever, with over 2,000 hits. Despite being focused on a single state, our readership is now approaching or exceeding that of some very influential national legal blogs, like Sentencing Law and Policy, CrimProfBlog, and How Appealing. I hope that means that you find our efforts worthwhile.

Of course, we do not want to rest on our laurels — we want to continue improving the blog. Therefore, we’d like your feedback on our mix of topics, the length and frequency of our posts, the structure and organization of the blog, and anything else that you think we should know about. We won’t necessarily implement every suggestion, but I promise that we’ll consider each one carefully. As always, you can post a comment, or you can email me directly.

Thanks for being part of our virtual community.

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Victims’ Statements about Defendants’ Prior Violent Acts

February 4th, 2010

The court of appeals just decided State v. Hernandez, which raises an important and recurrent hearsay issue. Briefly, the facts of Hernandez are as follows: the defendant traveled with his girlfriend, the victim, to her mother’s home. The defendant exhibited jealous behavior towards his girlfriend. His girlfriend told her mother that the defendant was “wanted in Chicago for an attempted knife assault on his baby’s mother and that she wanted him to leave their house. [She] also told her mother that she had previously tried to leave defendant but that he had stalked her and dragged her by her hair.”

After an argument, the defendant stabbed his girlfriend to death. He was arrested and charged with first-degree murder. At trial, the mother testified to her daughter’s comments about the defendant’s violent history. The trial judge gave a limiting instruction, telling the jury to consider the statements only as evidence of the victim’s state of mind. On appeal, the defendant argued that the statements were hearsay not within any exception and should not have been admitted.

The court of appeals disagreed, concluding that the statements were admissible under N.C. R. Evid. 803(3) as “statement[s] of the declarant’s then-existing state of mind.” Intermingled in the opinion is some language suggesting that the statements were not hearsay at all, as when the court indicates that they were “not offered to prove the facts asserted” insofar as they were offered to establish the victim’s mental state. Finally, the court held that any error was not prejudicial in light of the overwhelming evidence of the defendant’s guilt.

While the lack of prejudice conclusion appears to be a slam-dunk on the facts described in the opinion — and is sufficient to resolve the case — the others raise complicated questions. Since victims’ statements about defendants’ prior violent acts are very frequently the subject of litigation, it’s worth looking at this issue in a little more detail.

First, are such statements hearsay at all, or are they offered for a non-hearsay purpose? There is ample authority for the proposition that such statements are not hearsay because they establish the victim’s state of mind. See, e.g., State v. Holder, 331 N.C. 462 (1992); State v. Petrick, 186 N.C.App. 597 (2007) (victim’s statements to friends about defendant’s prior acts of violence towards her properly admitted not for the truth of the matter asserted but to show the victim’s state of mind, which “bears directly on the victim’s relationship with defendant . . . and his motive, intent, plan, or absence of mistake”). But a leading commentator has criticized Holder as “clearly incorrect in that the victim’s state of mind was not relevant to any issue in the case.” 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence 102 n.46 (6th ed. 2004). In other words, the statements may properly be offered for a non-hearsay purpose only if it is a relevant non-hearsay purpose. However, most North Carolina cases have held that the victim’s state of mind is a relevant non-hearsay purpose because it illuminates the relationship between the defendant and the victim and suggests that defendant’s possible motive. See generally Reagan F. McClellan, Note, State v. Alston, etc., 32 Wake Forest L. Rev. 1327 (1997) (noting and criticizing this trend).

Assuming arguendo that such statements are not admissible as non-hearsay, are they admissible under the state of mind exception in Rule 803(3)? The Rule applies to “statement[s] of the declarant’s . . . state of mind.” Thus, when the statements merely recite events — “the defendant hit me” or “the defendant told me that he would kill me if I left him” — without describing the declarant’s feelings about those events, the statements may not fall within the exception. See State v. Hardy, 339 N.C. 207 (1994); State v. Marecek, 130 N.C. App. 303 (1998). The defendant in Hernandez argued that the statements at issue in that case fell in this category; the court of appeals disagreed and distinguished Marecek, though I confess that I can’t seem to grasp the distinction.

In any event, when a statement is, in fact, a statement “of the declarant’s . . . state of mind,” it falls within a hearsay exception. But again, it should be admitted only when the declarant’s — i.e., the victim’s — state of mind is relevant. That’s more or less the same issue addressed above. Again, most of the reported cases favor admission of such evidence, though again Professor Broun thinks that our appellate courts have “too often easily made the jump from the feelings of the victim to the motive of the accused.” 2 Broun, supra, at 179.

There are some practice pointers that may help determine the admissibility of victims’ statements:

  • If the state can show that the defendant was aware that the victim was telling others about problems in the victim’s and the defendant’s relationship, the victim’s statements are relevant to the defendant’s state of mind — they show that the defendant may have been motivated to silence the victim or to prevent her from leaving the relationship. Admissibility in these cases is easy. Cf., e.g., State v. Quick, 323 N.C. 675 (1989) (victim’s statement in a letter to defendant that “this is the end of our relationship” admissible to show the defendant’s motive).
  • If the state is able to connect any recitations of past events to emotions experienced by the victim, the statements are more likely to fall within Rule 803(3). In fact, in Marecek, discussed above, on retrial the state showed a closer connection between the victim’s narration of events and the victim’s feelings. As a result, the admission of the statements was affirmed. 152 N.C. App. 479 (2002).
  • Closely consider the relevance of the victim’s state of mind. As noted above, courts have often held that the victim’s state of mind about the defendant and her relationship with him is evidence of the defendant’s possible motive, but whether this is so in a particular case bears attention.
  • Finally, a limiting instruction concerning the proper use of the victim’s statements is almost always appropriate.

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Deferred Prosecution Probation

February 3rd, 2010

by School of Government faculty member Jamie Markham

Under G.S. 15A-1341(a1), certain defendants may, with court approval, be placed on probation pursuant to a deferred prosecution agreement. To be eligible for this type of deferred prosecution the defendant must have been charged with a Class H or I felony or a misdemeanor, and the court must make findings that:

  • Prosecution has been deferred pursuant to a written agreement, with approval of the court, for the purpose of allowing the defendant to demonstrate good conduct;
  • Each known victim of the crime has been notified of the arrangement by subpoena or certified mail and has been given an opportunity to be heard;
  • The defendant has not been convicted of any felony or of any misdemeanor involving moral turpitude;
  • The defendant states under oath that he or she has not previously been placed on probation; and
  • The defendant is unlikely to commit another offense other than a Class 3 misdemeanor.

Form AOC-CR-610 guides the court through the requisite findings. The longest permissible term of probation for a deferred prosecution case is two years instead of the usual five. G.S. 15A-1342(a). If the defendant completes the deferred prosecution probation term or it is terminated early by the court, the defendant is immune from prosecution on the deferred charges. G.S. 15A-1342(i).

Prosecutors are also free to enter into non-statutory deferred prosecution agreements with defendants, and my sense is that many do (comments welcome on that front). Non-statutory arrangements may not, however, include supervision by the Division of Community Corrections. State v. Gravette, 327 N.C. 114 (1990).

Based on what I’ve heard, practices vary when a deferred prosecution probationer is alleged to have violated the conditions of his or her supervision. In some districts the alleged violation is reported to the court for a hearing; in others, the defendant is referred directly to the district attorney for prosecution. Changes made to the law in 2009 (S.L. 2009-372) helped clear up what ought to happen. Under the new law, violations of the term of a deferred prosecution must be reported to the court as they are in any ordinary probation case. G.S. 15A-1342(a1). A parallel change in G.S. 15A-1344 makes clear that all probationers must receive notice and a hearing under G.S. 15A-1345 before their probation may be revoked. The change corrected what had previously been a disconnect between the first clause of the sentence in G.S. 15A-1344(d) that began “[a] convicted defendant” and the later reference in the same sentence to “charges as to which prosecution has been deferred”—if charges were “deferred,” we wouldn’t be dealing with a “convicted defendant.” The change applies to hearings held on or after December 1, 2009.

With these changes in mind, deferred prosecution probation matters should be handled just like regular, post-conviction probation cases when it comes to extension, modification, and revocation. That’s what the court of appeals said about cases supervised under G.S. 90-96 in State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”), and it seems like the same rationale would apply here.

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Posted in Procedure, Uncategorized | 1 Comment »

Going Back to the Well, er, Magistrate

February 2nd, 2010

I’ve been asked several times recently whether an officer who asks a magistrate to issue an arrest warrant and is turned down based on a lack of probable cause can simply go to another magistrate and ask the other magistrate to issue the warrant. The answer is yes.

There’s no double jeopardy problem because jeopardy hasn’t attached yet. In district court matters, it attaches when the first witness begins to testify, and in superior court matters, it attaches when the jury is empaneled and sworn. Nor is there any other principle of law that prevents the officer from “shopping” for a favorable magistrate. The situation is analogous to when a grand jury declines to issue an indictment in a matter — in such a circumstance, the state is free to resubmit the case to a later grand jury in the hopes of a different result. See generally 42 C.J.S. Indictments § 39 (”At common law, and in the absence of a governing statute, the prosecuting attorney may, without first obtaining leave of court, submit to one grand jury charges which a previous grand jury has ignored.”); In re Superior Court Order, 70 N.C. App. 63 (1984), rev’d in part on other grounds, 315 N.C. 378 (1986) (recognizing that “[t]here is apparently no [legal] prohibition against resubmitting the same information on a new bill of indictment,” though noting that such a procedure may be burdensome). Similarly, when one magistrate turns down a search warrant application for lack of probable cause, an officer generally may submit the same application to another magistrate. United States v. Pace, 898 F.2d 1218 (7th Cir. 1990) (holding that the government is not estopped “from seeking a second magistrate’s approval to search when another magistrate denies a search warrant”).

Of course, if a magistrate is aware that another magistrate has previously refused to issue a warrant in a particular matter, the magistrate should pay close attention to the officer’s showing of probable cause. But in the end, the magistrate must make a probable cause determination using his or her best independent judgment. The first magistrate may have erred, or the officer may have obtained additional evidence in the interim that justifies a different result.

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Decriminalizing Certain Offenses to Reduce Appointed Counsel Costs

February 1st, 2010

by School of Government faculty member Shea Denning

The Office of Indigent Defense Services (IDS) is studying data related to the disposition of seventeen types of misdemeanor charges during the 2009 fiscal year to determine whether decriminalization of these offenses might be an appropriate way to reduce the cost to the State of providing appointed counsel.  Section 15.17 of S.L. 2009-451 directed IDS to consult with other court system actors regarding means of cutting costs, including the possibility of decriminalizing minor misdemeanor offenses for which jail sentences are rarely or never imposed.  (The bill also directs IDS to study ways to improve the screening and processing of potentially capital cases, but this post focuses on the first directive.)   The following types of charges are to be studied.

  • G.S. 14-168.4:  Failure to return property rented with purchase option
  • G.S. 14-107(d)(1):  Simple worthless check
  • G.S. 20-34: Allow unlicensed person to drive
  • G.S. 20-111(1):  Driving or allowing another to drive an unregistered vehicle
  • G.S. 20-28(a):  Driving while license revoked (Not based on DWI)
  • G.S. 20-111(2):  Expired registration card/tag
  • G.S. 20-7(e):  Failure to comply with license restriction
  • G.S. 20-7.1:  Failure to notify DMV of an address change
  • G.S. 20-57(c): Failure to sign registration card
  • G.S. 20-111(2):  Fictitious/canceled/revoked registration card/tag
  • G.S. 20-7(a): License not in possession
  • G.S. 20-7(a):  No operator’s license
  • G.S. 20-57(c):  No registration card
  • G.S. 20-313(a):  Operate vehicle no insurance
  • G.S. 20-141(j1):  Speeding more than 15 mph over limit or over 80 mph
  • G.S. 20-127(d):  Window tinting violation
  • G.S. 113-270.1B(A): Fishing without a license

Two of these offenses, driving while license revoked and operating a vehicle with no insurance, are Class 1 misdemeanors, punishable by up to 120 days imprisonment.  The rest are Class 2 misdemeanors, with the exception of a first offense of fishing without a license, which is a Class 3 misdemeanor.

Ten of the above offenses are included on the traffic waiver list, and the fishing offense appears on the hunting, fishing, and boating waiver list.  A defendant may resolve a waiver offense without having to appear in court by paying court costs and a designated penalty. Offenses for which court appearances may be waived generally are considered less serious than offenses for which a court appearance is required.

A court appearance currently is required for the following offenses to be studied:

  • failure to return rental property,
  • simple worthless check,
  • driving while license revoked,
  • display or possession of a fictitious registration card or tag,
  • operating a vehicle without insurance, and
  • speeding more than 80 miles per hour or more than 15 mph over the speed limit while driving more than 55 mph.

Of course, decriminalizing these offenses does not mean legalizing the conduct they currently regulate.  Instead, any proposal that may result from the study presumably would recommend designating certain offenses as infractions, defined under G.S. 14-3.1 as noncriminal violations of the law.  Because there is no right to counsel at state expense to defend against an infraction, decriminalization presumably would reduce IDS’s costs and result in a savings to the State.

IDS plans to circulate the study results among court system actors to determine whether there is consensus about decriminalizing any of the analyzed offenses.

Editor’s note: Shea provided the document pasted below, in which IDS describes the study

IDS Study

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Posted in Crimes and Elements, Sentencing, Uncategorized | 4 Comments »

News Roundup

January 29th, 2010

Because a snowstorm is supposed to trap many of us in our homes this weekend, I thought I’d highlight some news items that may be of interest.

1. Judges Wynn and Diaz have moved one step closer to seats on the Fourth Circuit.

2. There have been developments in several high-profile North Carolina criminal cases: Ruffin Poole, former aide to Governor Easley, has been charged in federal court with corruption-related offenses. Several defense lawyers and a court staffer in Johnston County recently pleaded guilty in connection with the filing of bogus dismissals in DWI cases. (A related case against a prosecutor remains pending.) And a judge in Wake County dismissed AWDWISI charges against a man whose pit bull mauled a six year old. Because I have a long-standing interest in animal law, the last item is particularly noteworthy to me. The case appears to involve nuanced legal issues that I’d like to write about at some point; if anyone knows of other cases involving similar issues, I’d like to hear about them.

3. Although the above items are high-profile around here, the chatter nationally is focused on California. The top story there is that a Los Angeles judge has ordered filmmaker Roman Polanski to return to the United States for sentencing in his sexual assault case, rather than being sentenced in absentia from Switzerland. The whole case has a Hollywood feel, with the latest developments including a filing by the victim on behalf of Polanski, arguing that the prosecutors have not paid enough heed to her belief that the case should be thrown out. Speaking of Hollywood, Governor Arnold Schwarzenegger has floated the idea of building prisons in Mexico to hold California inmates, on the theory that such prisons would cost less to construct and less to operate.

4. On the lighter side, the Seventh Circuit has upheld a rule forbidding prison inmates from playing Dungeons & Dragons for fear that it will inspire gang activity; a German man was caught at an airport with 44 protected lizards in his underwear; an alleged Florida car thief was arrested playing the video game Grand Theft Auto; and the UK has started projecting the faces of wanted criminals onto the sides of castles.

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Visual Identification of Drugs Takes Another Hit

January 28th, 2010

by School of Government faculty member and Defender Educator Alyson Grine

On January 5, the North Carolina Court of Appeals handed down yet another opinion addressing the admissibility of visual identifications of drugs, State v. Meadows. Defendant Meadows was convicted of possession of cocaine after Detective Springs, concealed in “the hedge and the darkness,” leaped out and shined his flashlight on Meadows, who then threw a plastic bag with white contents to the ground. The State put on evidence that the white substance was crack cocaine based on: 1) the results of the NarTest machine, and 2) the testimony of Detective Springs. The bulk of the opinion deals with the NarTest, which purports to identify controlled substances using florescence. Held: the trial court abused its discretion in allowing an officer to give expert testimony regarding the NarTest because there was insufficient evidence of the reliability of the testing method.

Aside from the disfavored NarTest, the State’s only evidence that the substance was crack was the lay testimony of Detective Springs that he “collected what [he] believe[d] to be crack cocaine[,]” presumably based on its appearance. The Court ruled that the trial court erred in admitting this testimony, entitling the defendant to a new trial. In support of its holding, the Court cited State v. Ward, ___ N.C.App. ___, 681 S.E.2d 354 (2009), disc. review allowed, ___ N.C. ___ S.E.2d ___ ( 2009). As discussed in Jeff’s prior post, Ward held that the expert testimony of an SBI agent was not sufficiently reliable with regard to identifying prescription drugs where the agent visually examined the markings, sizes, shapes, and colors of pills and compared them using a reputable reference text; but did not subject them to chemical analysis.

I find it interesting that the Meadows panel applied the Ward prescription drugs case without any discussion of the recent cocaine cases that were relied upon by the Ward court. You may recall from my previous post that State v. Llamas Hernandez, 363 N.C. 8 (2009), reversing for reasons stated in dissenting opinion, 189 N.C. App. 640 (2008), held that lay witnesses may not offer testimony that a powder is cocaine based on visual examination alone. The North Carolina Supreme Court did not clarify whether the holding in Llamas-Hernandez extended to crack cocaine cases as well as to powder ones. At that point, I queried whether Llamas-Hernandez overruled State v. Freeman, 185 N.C. App. 408 (2007), in which a police officer was allowed to give lay opinion testimony that he could tell a substance was crack by looking at it. Alternatively, would North Carolina courts determine that the crack versus powder distinction was meaningful enough to merit different treatment with regard to visual identifications?

In light of Meadows, the answers to these questions appear to be “yes,” Freeman has been overruled, and “no,” powder and crack do not merit different treatment in this evidentiary context. The Meadows panel did not draw any distinction based on the type of drug in question. Instead the Court broadly applied the language from Ward requiring chemical analysis for substances defined by their chemical makeup. In sum, there appears to be a trend towards rejecting visual examination as the sole means of identification regardless of the category of drug in question. North Carolina courts do not seem to be drawing a distinction based on whether the proffered evidence was expert or lay testimony. Meadows (lay) applied Ward (expert), which applied Llamas-Hernandez (lay).  One could argue that the holding in State v. Fletcher, 92 N.C. App. 50 (1988) (allowing officer to offer expert opinion testimony that substance was marijuana based on its appearance), has been called into question. However, the fact that the North Carolina Supreme Court has granted discretionary review in Ward suggests that we will be further enlightened on this topic soon.

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Posted in Evidence, Uncategorized | 7 Comments »

Computer Searches and Plain View II

January 27th, 2010

When a law enforcement officer is entitled to search a computer for evidence, she typically is entitled to look at every file on the computer, at least briefly. That’s because files that contain evidence of a crime may not be named drugtransactions.doc, but instead may be labeled airconditioningrepairbill.pdf, or something equally misleading and innocuous. Because computers can contain so much information, such a search can be very extensive.

Courts are struggling to decide whether that makes computer searches so different from traditional physical searches that new rules are needed. One area of disagreement is whether evidence that an officer stumbles across during such a search — for example, child pornography that the officer finds while searching for evidence of tax evasion — should be admissible under the “plain view” exception to the Fourth Amendment’s warrant requirement. In traditional physical searches, the answer is yes, but some courts have limited the applicability of the plain view doctrine in computer search cases as a way of preventing computer searches from becoming de facto general searches for evidence of any crime. I discussed this general issue, and one court’s resolution of it, in this prior post. Because the expected announcement of the Apple tablet makes today a big day — or at least, an enormously hyped day — in the computer world, I thought it timely to do a short follow-up post in this area.

Oh, and also, the Fourth Circuit recently decided a major case on point. The case is United States v. Williams, in which officers who searched a suspect’s computer for evidence of harassing emails found a cache of child pornography. The defendant’s motion to suppress the pornography was denied, and the Fourth Circuit affirmed. In part, the court concluded that the pornography was in plain view as a result of the search regarding the harassing emails, and the court rejected the idea that special plain view rules are appropriate in computer cases. The ruling is arguably dicta, for reasons that aren’t worth elaborating, but it is a considered ruling clearly meant to provide guidance to lower federal courts.

The court noted that “a computer search must, by implication, authorize at least a cursory review of each file on the computer,” and found that “the criteria for applying the plain-view exception are readily satisfied” when an officer comes across evidence of additional crimes. Importantly, the court held that the officer’s discovery of the additional crimes need not be inadvertent. In other words, the officer can (subjectively) be looking for such evidence, as long as the officer’s actions (objectively) are authorized as part of the search for evidence of the original crime. This is contrary to the conclusion reached by the Tenth Circuit in United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). A leading commentator discusses the circuit split here. “At bottom,” said the court, “we conclude that the sheer amount of information contained on a computer does not distinguish the authorized search of the computer from an analogous search of a file cabinet containing a large number of documents,” a circumstance in which the traditional plain view rules have been held to apply. It’s a thoughtful opinion, and worth reading, but it certainly won’t be the last word in this debate.

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Posted in Search and Seizure, Uncategorized | 1 Comment »

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