Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/17/2021
E.g., 09/17/2021

In three consolidated cases the Court held that while a warrantless breath test of a motorist lawfully arrested for drunk driving is permissible as a search incident to arrest, a warrantless blood draw is not. It concluded: “Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.” Having found that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, the Court turned to the argument that blood tests are justified based on the driver’s legally implied consent to submit to them. In this respect it concluded: “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”

The police may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. This decision involved a pair of cases in which both defendants were arrested and cell phones were seized. In both cases, officers examined electronic data on the phones without a warrant as a search incident to arrest. The Court held that “officers must generally secure a warrant before conducting such a search.” The Court noted that “the interest in protecting officer safety does not justify dispensing with the warrant requirement across the board.” In this regard it added however that “[t]o the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.” Next, the Court rejected the argument that preventing the destruction of evidence justified the search. It was unpersuaded by the prosecution’s argument that a different result should obtain because remote wiping and data encryption may be used to destroy digital evidence. The Court noted that “[t]o the extent that law enforcement still has specific concerns about the potential loss of evidence in a particular case, there remain more targeted ways to address those concerns. If the police are truly confronted with a ‘now or never’ situation—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately” (quotation omitted). Alternatively, the Court noted, “if officers happen to seize a phone in an unlocked state, they may be able to disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data.” The Court noted that such a procedure would be assessed under case law allowing reasonable steps to secure a scene to preserve evidence while procuring a warrant. Turning from an examination of the government interests at stake to the privacy issues associated with a warrantless cell phone search, the Court rejected the government’s argument that a search of all data stored on a cell phone is materially indistinguishable the other types of personal items, such as wallets and purses. The Court noted that “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse” and that they “differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” It also noted the complicating factor that much of the data viewed on a cell phone is not stored on the device itself, but rather remotely through cloud computing. Concluding, the Court noted:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.

(Slip Op at. p. 25). And finally, the Court noted that even though the search incident to arrest does not apply to cell phones, other exceptions may still justify a warrantless search of a particular phone, such as exigent circumstances.

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.

(Slip Op at. p. 25). And finally, the Court noted that even though the search incident to arrest does not apply to cell phones, other exceptions may still justify a warrantless search of a particular phone, such as exigent circumstances.

State v. Wilkerson, 363 N.C. 382 (Aug. 28, 2009)

Seizure and search of the defendant’s cell phone was proper as a search incident to arrest. The defendant was arrested for two murders shortly after they were committed. While in custody, he received a cell phone call, at which point the seizure occurred. [Note: The more recent Riley decision, above.]

(1) In this drug case, a search of the defendant’s person was a proper search incident to arrest. An officer stopped the defendant’s vehicle for driving with a revoked license. The officer had recognized the defendant and knew that his license was suspended. The officer arrested the defendant for driving with a revoked license, handcuffed him and placed him in the police cruiser. The officer then asked the defendant for consent to search the car. According to the officer the defendant consented. The defendant denied doing so. Although an initial search of the vehicle failed to locate any contraband, a K-9 dog arrived and “hit” on the right front fender and driver’s seat cushion. When a second search uncovered no contraband or narcotics, the officer concluded that the narcotics must be on the defendant’s person. The defendant was brought to the police department and was searched. The search involved lowering the defendant’s pants and long johns to his knees. During the search the officer pulled out, but did not pull down, the defendant’s underwear and observed the defendant’s genitals and buttocks. Cocaine eventually was retrieved from a hidden area on the fly of the defendant’s pants. The defendant unsuccessfully moved to suppress the drugs and was convicted. On appeal, the court rejected the defendant’s argument that the strip search could only have been conducted with probable cause and exigent circumstances. The court noted however that standard applies only to roadside strip searches. Here, the search was conducted incident to the defendant’s lawful arrest inside a private interview room at a police facility.

(2) The search of the defendant’s person, which included observing his buttocks and genitals, was reasonable. The defendant had argued that even if the search of his person could be justified as a search incident to an arrest, it was unreasonable under the totality of the circumstances. Rejecting this argument, the court noted that the search was limited to the area of the defendant’s body and clothing that would have come in contact with the cushion of the driver’s seat where the dog alerted; specifically, the area between his knees and waist. Moreover, the defendant was searched inside a private interview room at the police station with only the defendant and two officers present. The officers did not remove the defendant’s clothing above the waist. They did not fully remove his undergarments, nor did they touch his genitals or any body cavity. The court also noted the suspicion created by, among other things, the canine’s alert and the failure to discover narcotics in the car. The court thus concluded that the place, manner, justification and scope of the search of the defendant’s person was reasonable.

The court reversed and remanded for further findings of fact regarding the defendant’s motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on the defendant’s person which, as a result of the search, was determined to have been stolen. The court held that under Riley v. California, 134 S. Ct. 2473 (2014), the search was not justified as a search incident to arrest. As to whether the defendant had a reasonable expectation of privacy in the GPS device, the court held that a defendant may have a legitimate expectation of privacy in a stolen item if he acquired it innocently and does not know that the item was stolen. Here, evidence at the suppression hearing would allow the trial court to conclude that defendant had a legitimate possessory interest in the GPS. However, because the trial court failed to make a factual determination regarding whether the defendant innocently purchased the GPS device, the court reversed and remanded for further findings of fact, providing additional guidance for the trial court in its decision.

A search of the defendant’s jacket incident to arrest was lawful. When the officer grabbed the defendant, the defendant ran. While attempting to evade capture, the defendant tried to punch the officer while keeping his right hand inside his jacket. The defendant refused to remove his hand from his jacket pocket despite being ordered to do so and the jacket eventually came off during the struggle. This behavior led the officer to believe that the defendant may be armed. After the defendant was subdued, handcuffed, and placed in a patrol vehicle, the officer walked about ten feet and retrieved the jacket from the ground. He searched the jacket and retrieved a bag containing crack cocaine.

Safford Unified School District v. Redding, 557 U.S. 364 (June 25, 2009)

Although school officials had reasonable suspicion to search a middle school student’s backpack and outer clothing for pills, they violated the Fourth Amendment when they required her to pull out her bra and underwear. After learning that the student might have prescription strength and over-the-counter pain relief pills, school officials searched her backpack but found no pills. A school nurse then had her remove her outer clothing, pull her bra and shake it, and pull out the elastic on her underpants, exposing her breasts and pelvic area to some degree. No pills were found. Because there was no indication that the drugs presented a danger to students or were concealed in her undergarments, the officials did not have sufficient justification to require the students to pull out her bra and underpants. However, the school officials were protected from civil liability by qualified immunity.

In re T.A.S., 366 N.C. 269 (Oct. 5, 2012)

The court vacated and remanded In re T.A.S., 213 N.C. App. 273 (July 19, 2011) (holding that a search of a juvenile student’s bra was constitutionally unreasonable), ordering further findings of fact. The court ordered the trial court to

make additional findings of fact, including but not necessarily limited to: the names, occupations, genders, and involvement of all the individuals physically present at the “bra lift” search of T.A.S.; whether T.A.S. was advised before the search of the Academy’s “no penalty” policy; and whether the “bra lift” search of T.A.S. qualified as a “more intrusive” search under the Academy’s Safe School Plan.

It provided that “[i]f, after entry of an amended judgment or order by the trial court, either party enters notice of appeal, counsel are instructed to ensure that a copy of the Safe School Plan, discussed at the suppression hearing and apparently introduced into evidence, is included in the record on appeal.”

In Re D.L.D., 203 N.C. App. 434 (Apr. 20, 2010)

The reasonableness standard of New Jersey v. T.L.O., 469 U.S. 325 (1985), applied to a search of a student by an officer assigned to the school. The officer was working in conjunction with and at the direction of the assistant principal to maintain a safe and educational environment. For the reasons discussed in the opinion, the search satisfied the two-pronged inquiry for determining reasonableness: (1) whether the action was justified at its inception; and (2) whether the search as conducted was reasonably related in scope to the circumstances which justified the interference in the first place.

Reversing the North Carolina courts, the Court held that under Jones and Jardines, satellite based monitoring for sex offenders constitutes a search under the Fourth Amendment. The Court stated: “a State … conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” The Court rejected the reasoning of the state court below, which had relied on the fact that the monitoring program was “civil in nature” to conclude that no search occurred, explaining: “A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment.” The Court did not decide the “ultimate question of the program’s constitutionality” because the state courts had not assessed whether the search was reasonable. The Court remanded for further proceedings.

State v. Blue, 246 N.C. App. 259 (Mar. 15, 2016)

(1) The court rejected the defendant’s argument that because SBM is a civil, regulatory scheme, it is subject to the Rules of Civil Procedure and that the trial court erred by failing to exercise discretion under Rule 62(d) to stay the SBM hearing. The court concluded that because Rule 62 applies to a stay of execution, it could not be used to stay the SBM hearing. (2) With respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure, the trial court erred by failing to conduct the appropriate analysis. The trial court simply acknowledged that SBM constitutes a search and summarily concluded that the search was reasonable. As such it failed to determine, based on the totality of the circumstances, whether the search was reasonable. The court noted that on remand the State bears the burden of proving that the SBM search is reasonable. 

The trial court erred by failing to conduct the appropriate analysis with respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure. The trial court simply acknowledged that SBM constitutes a search and summarily concluded that the search was reasonable. As such it failed to determine, based on the totality of the circumstances, whether the search was reasonable. The court noted that on remand the State bears the burden of proving that the SBM search is reasonable.

(1) In this drug case, a search of the defendant’s person was a proper search incident to arrest. An officer stopped the defendant’s vehicle for driving with a revoked license. The officer had recognized the defendant and knew that his license was suspended. The officer arrested the defendant for driving with a revoked license, handcuffed him and placed him in the police cruiser. The officer then asked the defendant for consent to search the car. According to the officer the defendant consented. The defendant denied doing so. Although an initial search of the vehicle failed to locate any contraband, a K-9 dog arrived and “hit” on the right front fender and driver’s seat cushion. When a second search uncovered no contraband or narcotics, the officer concluded that the narcotics must be on the defendant’s person. The defendant was brought to the police department and was searched. The search involved lowering the defendant’s pants and long johns to his knees. During the search the officer pulled out, but did not pull down, the defendant’s underwear and observed the defendant’s genitals and buttocks. Cocaine eventually was retrieved from a hidden area on the fly of the defendant’s pants. The defendant unsuccessfully moved to suppress the drugs and was convicted. On appeal, the court rejected the defendant’s argument that the strip search could only have been conducted with probable cause and exigent circumstances. The court noted however that standard applies only to roadside strip searches. Here, the search was conducted incident to the defendant’s lawful arrest inside a private interview room at a police facility.

(2) The search of the defendant’s person, which included observing his buttocks and genitals, was reasonable. The defendant had argued that even if the search of his person could be justified as a search incident to an arrest, it was unreasonable under the totality of the circumstances. Rejecting this argument, the court noted that the search was limited to the area of the defendant’s body and clothing that would have come in contact with the cushion of the driver’s seat where the dog alerted; specifically, the area between his knees and waist. Moreover, the defendant was searched inside a private interview room at the police station with only the defendant and two officers present. The officers did not remove the defendant’s clothing above the waist. They did not fully remove his undergarments, nor did they touch his genitals or any body cavity. The court also noted the suspicion created by, among other things, the canine’s alert and the failure to discover narcotics in the car. The court thus concluded that the place, manner, justification and scope of the search of the defendant’s person was reasonable.

State v. Collins, 245 N.C. App. 288 (Feb. 2, 2016) aff'd on other grounds, 369 N.C. 60 (Sep 23 2016)

In this drug case, the court held, over a dissent, that a strip search of the defendant did not violate the fourth amendment. When officers entered a residence to serve a warrant on someone other than the defendant, they smelled the odor of burnt marijuana. When the defendant was located upstairs in the home, an officer smelled marijuana on his person. The officer patted down and searched the defendant, including examining the contents of his pockets. The defendant was then taken downstairs. Although the defendant initially gave a false name to the officers, once they determined his real name, they found out that he had an outstanding warrant from New York. The defendant was wearing pants and shoes but no shirt. After the defendant declined consent for a strip search, an officer noticed a white crystalline substance consistent with cocaine on the floor where the defendant had been standing. The officer then searched the defendant, pulling down or removing both his pants and underwear. Noticing that the defendant was clenching his buttocks, the officer removed two plastic bags from between his buttocks, one containing what appeared to be crack cocaine and the other containing what appeared to be marijuana. The court held that because there was probable cause to believe that contraband was secreted beneath the defendant’s clothing (in this respect, the court noted the crystalline substance consistent with cocaine on the floor where the defendant had been standing), it was not required to officially deem the search a strip search or to find exigent circumstances before declaring the search reasonable. Even so, the court found that exigent circumstances existed, given the observation of what appeared to be cocaine near where the defendant had been standing and the fact that the concealed cocaine may not have been sealed, leading to danger of the defendant absorbing some of the substance through his large intestine. Also, the court noted that the search occurred in the dining area of a private apartment, removed from other people and providing privacy.

In a drug case the court held that probable cause and exigent circumstances supported a roadside search of the defendant’s underwear conducted after a vehicle stop and that the search was conducted in a reasonable manner. After finding nothing in the defendant’s outer clothing, the officer placed the defendant on the side of his vehicle with the vehicle between the defendant and the travelled portion of the highway. Other troopers stood around the defendant to prevent passers-by from seeing him. The officer pulled out the front waistband of the defendant’s pants and looked inside. The defendant was wearing two pairs of underwear—an outer pair of boxer briefs and an inner pair of athletic compression shorts. Between the two pairs of underwear the officer found a cellophane package containing several smaller packages. There was probable cause to search where the defendant smelled of marijuana, officers found a scale of the type used to measure drugs in his car, a drug dog alerted in his car, and during a pat-down the officer noticed a blunt object in the inseam of the defendant’s pants. Because narcotics can be easily and quickly hidden or destroyed, especially after a defendant has notice of an officer’s intent to discover whether the defendant was in possession of them, sufficient exigent circumstances justified the warrantless search. Additionally, the search was conducted in a reasonable manner. Although the officer did not see the defendant’s private parts, the level of the defendant’s exposure is relevant to the analysis of whether the search was reasonable. The court reasoned that the officer had a sufficient basis to believe that contraband was in the defendant’s underwear, including that although the defendant smelled of marijuana a search of his outer clothing found nothing, the defendant turned away from the officer when the officer frisked his groin and thigh area, and that the officer felt a blunt object in the defendant’s crotch area during the pat-down. Finally, the court concluded that when conducting the search the officer took reasonable steps to protect defendant’s privacy.

Over a dissent, the court held that the trial court did not err by denying the defendant’s motion to suppress evidence found as a result of a strip search. The court found that the officer had, based on the facts presented, ample basis for believing that the defendant had contraband beneath his underwear and that reasonable steps were taken to protect his privacy.

Roadside strip searches of the defendant were reasonable and did not violate the constitution. The court first rejected the State’s argument that the searches were not strip searches. During both searches the defendant’s private areas were observed by an officer and during one search the defendant’s pants were removed and an officer searched inside of the defendant’s underwear with his hand. Next, the court held that probable cause supported the searches. The officers stopped the defendant’s vehicle for speeding after receiving information from another officer and his informant that the defendant would be traveling on a specified road in a silver Kia, carrying 3 grams of crack cocaine. The strip search occurred after a consensual search of the defendant’s vehicle produced marijuana but no cocaine. The court found competent evidence to show that the informant, who was known to the officers and who had provided reliable information in the past, provided sufficient reliable information, corroborated by an officer, to establish probable cause to believe that the defendant would be carrying a small amount of cocaine in his vehicle. When the consensual search of defendant’s vehicle did not produce the cocaine, the officers had sufficient probable cause, under the totality of the circumstances, to believe that the defendant was hiding the drugs on his person. Third, the court found that exigent circumstances supported the search. Specifically, the officer knew that the defendant had prior experience with jail intake procedures and that he could reasonably expect that the defendant would attempt to get rid of evidence in order to prevent his going to jail. Finally, the court found the search reasonable. The trial court had determined that although the searches were intrusive, the most intrusive one occurred in a dark area away from the traveled roadway, with no one other than the defendant and the officers in the immediate vicinity. Additionally, the trial court found that the officer did not pull down the defendant’s underwear or otherwise expose his bare buttocks or genitals and no females were present or within view during the search. The court determined that these findings support the trial court’s conclusion that, although the searches were intrusive, they were conducted in a discreet manner away from the view of others and limited in scope to finding a small amount of cocaine based on the corroborated tip of a known, reliable informant.

A roadside strip search was unreasonable. The search was a strip search, even though the defendant’s pants and underwear were not completely removed or lowered. Although the officer made an effort to shield the defendant from view, the search was a “roadside” strip search, distinguished from a private one. Roadside strip searches require probable cause and exigent circumstances, and no exigent circumstances existed here. Note that although a majority of the three-judge panel agreed that the strip search was unconstitutional, a majority did not agree as to why this was so.

The petitioner appealed from his impaired driving conviction on the basis that the State violated the Fourth Amendment by withdrawing his blood while he was unconscious without a warrant following his arrest for impaired driving. A Wisconsin state statute permits such blood draws. The Wisconsin Supreme Court affirmed the petitioner’s convictions, though no single opinion from that court commanded a majority, and the Supreme Court granted certiorari to decide “[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.”  

Justice Alito, joined by Chief Justice Roberts, Justice Breyer and Justice Kavanaugh announced the judgment of the court and wrote the plurality opinion. The plurality noted at the outset that the Court’s opinions approving the general concept of implied consent laws did not rest on the idea that such laws create actual consent to the searches they authorize, but instead approved defining elements of such statutory schemes after evaluating constitutional claims in light of laws developed over the years to combat drunk driving. The plurality noted that the Court had previously determined that an officer may withdraw blood from an impaired driving suspect without a warrant if the facts of a particular case establish exigent circumstances. Missouri v.McNeely, 569 U.S. 141 (2013); Schmerber v. California, 384 U. S. 757, 765 (1966). While the natural dissipation of alcohol is insufficient by itself to create per se exigency in impaired driving cases, exigent circumstances may exist when that natural metabolic process is combined with other pressing police duties (such as the need to address issues resulting from a car accident) such that the further delay necessitated by a warrant application risks the destruction of evidence. The plurality reasoned that in impaired driving cases involving unconscious drivers, the need for a blood test is compelling and the officer’s duty to attend to more pressing needs involving health or safety (such as the need to transport an unconscious suspect to a hospital for treatment) may leave the officer no time to obtain a warrant. Thus, the plurality determined that when an officer has probable cause to believe a person has committed an impaired driving offense and the person’s unconsciousness or stupor requires him to be taken to the hospital before a breath test may be performed, the State may almost always order a warrantless blood test to measure the driver’s blood alcohol concentration without offending the Fourth Amendment. The plurality did not rule out that in an unusual case, a defendant could show that his or her blood would not have been withdrawn had the State not sought blood alcohol concentration information and that a warrant application would not have interfered with other pressing needs or duties. The plurality remanded the case because the petitioner had no opportunity to make such a showing.

Justice Thomas concurred in the judgment only, writing separately to advocate for overruling Missouri v. McNeely, 569 U.S. 141 (2013), in favor of a rule that the dissipation of alcohol creates an exigency in every impaired driving case that excuses the need for a warrant. 

Justice Sotomayer, joined by Justices Ginsburg and Kagan, dissented, reasoning that the Court already had established that there is no categorical exigency exception for blood draws in impaired driving cases, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case. The dissent noted that in light of that precedent, Wisconsin’s primary argument was always that the petitioner consented to the blood draw through the State’s implied-consent law. Certiorari review was granted on the issue of whether this law provided an exception to the warrant requirement. The dissent criticized the plurality for resting its analysis on the issue of exigency, an issue it said Wisconsin had affirmatively waived.

Justice Gorsuch dissented by separate opinion, arguing that the Court had declined to answer the question presented, instead upholding Wisconsin’s implied consent law on an entirely different ground, namely the exigent circumstances doctrine. 

In three consolidated cases the Court held that while a warrantless breath test of a motorist lawfully arrested for drunk driving is permissible as a search incident to arrest, a warrantless blood draw is not. It concluded: “Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.” Having found that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, the Court turned to the argument that blood tests are justified based on the driver’s legally implied consent to submit to them. In this respect it concluded: “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”

The defendant’s Fourth Amendment rights were not violated by the taking of a DNA cheek swab as part of booking procedures. When the defendant was arrested in April 2009 for menacing a group of people with a shotgun and charged in state court with assault, he was processed for detention in custody at a central booking facility. Booking personnel used a cheek swab to take the DNA sample from him pursuant to the Maryland DNA Collection Act (Maryland Act). His DNA record was uploaded into the Maryland DNA database and his profile matched a DNA sample from a 2003 unsolved rape case. He was subsequently charged and convicted in the rape case. He challenged the conviction arguing that the Maryland Act violated the Fourth Amendment. The Maryland appellate court agreed. The Supreme Court reversed. The Court began by noting that using a buccal swab on the inner tissues of a person’s cheek to obtain a DNA sample was a search. The Court noted that a determination of the reasonableness of the search requires a weighing of “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” It found that “[i]n the balance of reasonableness . . . , the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.” The Court noted in particular the superiority of DNA identification over fingerprint and photographic identification. Addressing privacy issues, the Court found that “the intrusion of a cheek swab to obtain a DNA sample is a minimal one.” It noted that a gentle rub along the inside of the cheek does not break the skin and involves virtually no risk, trauma, or pain. And, distinguishing special needs searches, the Court noted: “Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial . . . his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen.” The Court further determined that the processing of the defendant’s DNA was not unconstitutional. The information obtained does not reveal genetic traits or private medical information; testing is solely for the purpose of identification. Additionally, the Maryland Act protects against further invasions of privacy, by for example limiting use to identification. It concluded:

In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. 

State v. Romano, 369 N.C. 678 (June 9, 2017)

The court held, in this DWI case, that in light of the U.S. Supreme Court’s decisions in Birchfield v. North Dakota (search incident to arrest doctrine does not justify the warrantless taking of a blood sample; as to the argument that the blood tests at issue were justified based on the driver’s legally implied consent to submit to them, the Court concluded: “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense”), and Missouri v. McNeely (natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant; exigency must be determined on a case-by-case basis), G.S. 20-16.2(b) (allowing blood draw from an unconscious person) was unconstitutional as applied to defendant because it permitted a warrantless search that violates the Fourth Amendment. An officer, relying on G.S. 20-16.2(b), took possession of the defendant’s blood from a treating nurse while the defendant was unconscious without first obtaining a warrant. The court rejected the State’s implied consent argument: that because the case involved an implied consent offense, by driving on the road, the defendant consented to having his blood drawn for a blood test and never withdrew this statutorily implied consent before the blood draw. It continued:

Here there is no dispute that the officer did not get a warrant and that there were no exigent circumstances. Regarding consent, the State’s argument was based solely on N.C.G.S. § 20-16.2(b) as a per se exception to the warrant requirement. To be sure, the implied-consent statute, as well as a person’s decision to drive on public roads, are factors to consider when analyzing whether a suspect has consented to a blood draw, but the statute alone does not create a per se exception to the warrant requirement. The State did not present any other evidence of consent or argue that under the totality of the circumstances defendant consented to a blood draw. Therefore, the State did not carry its burden of proving voluntary consent. As such, the trial court correctly suppressed the blood evidence and any subsequent testing of the blood that was obtained without a warrant.

The defendant was found guilty by a Cleveland County jury of impaired driving and resisting a public officer and was found responsible for possession of open container. He appealed, challenging the denial of his motion to dismiss, the denial of his mid-trial motion to suppress, an evidentiary ruling, and alleging constitutional violations for lost evidence. The Court of Appeals unanimously affirmed.

(1) The defendant claimed there was insufficient evidence that he operated the vehicle while impaired. As to operation, the defendant was found asleep behind the wheel with the car running in the middle of the road and had a bottle of vodka between his legs. No passengers were present, and the defendant asked the officer if he could move the car, revving the engine several times. He also used the driver side door to exit the vehicle. This was sufficient to establish operation. “An individual who is asleep behind the wheel of a car with the engine running is in actual physical control of the car, thus driving the car within the meaning of the statute.”  As to impairment, while the defendant’s blood alcohol content was only 0.07, the defendant’s blood revealed the presence of marijuana, amphetamine and methamphetamine. In addition to the blood test, the defendant “failed” horizontal and vertical gaze nystagmus tests, refused a breath test, had a strong odor of alcohol, was “confused and disoriented,” and exhibited other signs of impairment. This was sufficient evidence of impairment.

The defendant also claimed there was insufficient evidence to support his conviction for resisting a public officer. Specifically, he argued that he was merely confused and in pain at the time of his interactions with the officers, and that this was the cause of his “negative interactions” with the officers. The court rejected this argument, noting: “The conduct proscribed under [N.C. Gen. Stat. §] 14-223 is not limited to resisting an arrest but includes any resistance, delay, or obstruction of an officer in discharge of his duties.” Here, the defendant committed multiple acts that obstructed the officer’s duties. The defendant would not roll down his window when asked by the officer, he repeatedly tried to start his car after being commanded to stop, he refused a breath test at least 10 times, and repeatedly put his hands in his pockets during the nystagmus testing after being instructed not to do so. He also refused to get into the patrol car once arrested and refused to voluntarily allow his blood to be drawn after a search warrant for it was obtained. In the court’s words:

Through these actions and his inactions, Defendant directly opposed the officers in their efforts to discharge their investigative duties of identifying him, speaking with him, and performing field sobriety tests. Thus, Defendant resisted the officers within the meaning of the statute.

The motion to dismiss for insufficient evidence of resisting a public officer was therefore properly denied.

The defendant also claimed his motion to dismiss for insufficiency as to the possession of open container of alcohol should have been granted. He pointed out that the bottle found in his car was not missing much alcohol and the officer admitted to emptying the bottle on the side of the road. Rejecting this argument, the court observed:

[T]he amount of alcohol missing from the container is irrelevant for purposes of this offense, because a contained is opened ‘[i]f the seal on [the] container of alcoholic beverages has been broken.’ Additionally, the fact that [the officer] poured out the contents of the container goes to the weight of the evidence, not its sufficiency.

The trial court therefore did not err in denying the motion for insufficient evidence for this offense.

(2) As to the suppression motion, the issue was preserved despite the motion being untimely because the court considered and ruled on the motion. The defendant argued that the forcible blood draw violated his rights to be free to unreasonable force. He did not challenge the validity of the search warrant authorizing the blood draw. Claims of excessive force are evaluated under the Fourth Amendment reasonableness standard. Graham v. Conner, 490 U.S. 386 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 22 (citations omitted). Here, the officer had a valid warrant (obtained after the defendant’s repeated refusals to provide a breath sample), and the blood draw was performed by medical professionals at a hospital. Any acts of force by police to obtain the blood sample were the result of the defendant’s own resistance. The court observed:

Defendant had no right to resist the execution of a search warrant, and in fact, his actions rose to the level of criminal conduct under N.C. Gen. Stat. § 14-223, for resisting a public officer. . . Defendant ‘cannot resist a lawful warrant and be rewarded with the exclusion of the evidence.’

The force used to effectuate the blood draw was reasonable under the circumstances and did not violate the Fourth Amendment.

The defendant also argued that his motion to suppress should have been granted for failure of the State to show that his blood was drawn by a qualified professional. G.S. 20-139.1(c) provides that doctor, registered nurse, EMT, or other qualified person shall take the blood sample. “An officer’s trial testimony regarding the qualifications of the person who withdrew the blood is sufficient evidence of the person’s qualifications.” Here, the officer testified that a nurse drew the blood, although he could not identify her by name and no other proof of her qualifications was admitted.  This was sufficient evidence that the blood was drawn by qualified person, and this argument was rejected.

(3) The trial court admitted into evidence the bottle found between the defendant’s legs at the time of arrest. According to the defendant, this was an abuse of discretion because the officers admitted to destroying the content of the bottle (by pouring it out) before trial. The defendant argued this was prejudicial and required a new trial. Because the defendant offered no authority that admission of the bottle into evidence was error, this argument was treated as abandoned and not considered.

(4) During the arrest, the stopping officer forgot to turn on his body camera and only began recording the investigation mid-way through. The officer also failed to record interactions with the defendant during processing after arrest in violation of department policy. The trial court found no constitutional violation. The defendant complained on appeal that the “intentional suppression” of this camera footage violated his Sixth and Fourteenth Amendment rights and sought dismissal or a new trial. However, the defendant only argued the Fourteenth Amendment Brady violation on appeal. His Sixth Amendment argument was therefore abandoned and waived.

As to the alleged Brady violation, the defendant did not seek dismissal in the trial court. “We are therefore precluded from reviewing the denial of any such motion, and Defendant’s request that this Court ‘dismiss the prosecution against him’ is itself dismissed.” However, the defendant’s argument at suppression that the failure to record the blood draw violated due process and warranted suppression was preserved. Under Brady v. Maryland, 373 U.S. 83 (1963), suppression of material evidence relevant to guilt or punishment violates due process, regardless of the government’s good or bad faith. Here though, there was no evidence that the State suppressed anything—the video footage was simply not created. Brady rights apply to materials within the possession of the State. “Defendant essentially asks this Court to extend Brady’s holding to include evidence not collected by an officer, which we decline to do.” There was also no indication that the video footage would have been helpful to the defendant. The court therefore rejected this claim. “Although the officers’ failure to record the interaction violated departmental policy, such violation did not amount to a denial of Defendant’s due process rights under Brady in this case.”

In this impaired driving case the trial court properly denied the defendant’s motion to suppress where exigent circumstances supported a warrantless blood draw. The defendant tested at .10 on a roadside test, was arrested at 2:48 AM and then was transported to the police department, where he arrived 18 minutes later. When the defendant refused to comply with further testing within 2 to 3 minutes after arriving at the police department, the detective decided to compel a blood test. The closest hospital was approximately 4 miles away from the police department and 8 miles from the magistrate’s office. The detective read the defendant his rights regarding the blood draw at the hospital at 3:24 AM and waited for the defendant to finish making a phone call before starting the blood draw at 3:55 AM. The detective testified that based on the information he had at the time, he thought the defendant was close to a blood alcohol level of .08. The detective further indicated that he thought it would have taken an additional hour to an hour and half to get a search warrant. The detective was the only officer on the scene and would have had to wait for another officer to arrive before he could travel to the magistrate to get the search warrant. The trial court’s finding regarding the detective’s reasonable belief that the delay would result in the dissipation of alcohol in the defendant’s blood was supported by competent evidence. Thus, the trial court did not err in denying the defendant’s motion to suppress the blood draw.

On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 809 S.E.2d 340 (2018), the court per curiam vacated and remanded to the Court of Appeals for reconsideration in light of State v. Wilson, ___ N.C. ___, 821 S.E.2d 811 (2018). In the decision below the majority held, in relevant part, that where the trial court’s order denying the defendant’s suppression motion failed to resolve disputed issues of fact central to the court’s ability to conduct a meaningful appellate review, the case must be remanded for appropriate findings of fact. In its order denying the defendant’s suppression motion, the trial court concluded that, at the time defendant was asked for consent to search his car, he had not been seized. On appeal, the defendant challenged that conclusion, asserting that because the officers retained his driver’s license, a seizure occurred. It was undisputed that the law enforcement officers’ interactions with the defendant were not based upon suspicion of criminal activity. Thus, if a seizure occurred it was in violation of the Fourth Amendment. The State argued that the trial court’s findings of fact fail to establish whether the officers retained the defendant’s license or returned it to him after examination. The Court of Appeals agreed, noting that the evidence was conflicting on this critical issue and remanding for appropriate findings of fact. As noted, the Supreme Court remanded for reconsideration in light of Wilson. In Wilson,a felon in possession of a firearm case, the Supreme Court held that Michigan v. Summers justifies a seizure of the defendant where he posed a real threat to the safe and efficient completion of a search.

On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 698 (2017), in this felon in possession of a firearm case, the court held that Michigan v. Summers justifies a seizure of the defendant where he posed a real threat to the safe and efficient completion of a search and that the search and seizure of the defendant were supported by individualized suspicion. A SWAT team was sweeping a house so that the police could execute a search warrant. Several police officers were positioned around the house to create a perimeter securing the scene. The defendant penetrated the SWAT perimeter, stating that he was going to get his moped. In so doing, he passed Officer Christian, who was stationed at the perimeter near the street. The defendant then kept going, moving up the driveway and toward the house to be searched. Officer Ayers, who was stationed near the house, confronted the defendant. After a brief interaction, Officer Ayers searched the defendant based on his suspicion that the defendant was armed. Officer Ayers found a firearm in the defendant’s pocket. The defendant, who had previously been convicted of a felony, was arrested and charged with being a felon in possession of a firearm. He unsuccessfully moved to suppress at trial and was convicted. The Court of Appeals held that the search was invalid because the trial court’s order did not show that the search was supported by reasonable suspicion. The Supreme Court reversed holding “that the rule in Michigan v. Summers justifies the seizure here because defendant, who passed one officer, stated he was going to get his moped, and continued toward the premises being searched, posed a real threat to the safe and efficient completion of the search.” The court interpreted the Summers rule to mean that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain occupants who are within the immediate vicinity of the premises to be searched and who are present during the execution of a search warrant. Applying this rule, the court determined that “a person is an occupant for the purposes of the Summers rule if he poses a real threat to the safe and efficient execution of a search warrant.” (quotation omitted). Here, the defendant posed such a threat. It reasoned: “He approached the house being swept, announced his intent to retrieve his moped from the premises, and appeared to be armed. It was obvious that defendant posed a threat to the safe completion of the search.”

         Because the Summers rule only justifies detentions incident to the execution of search warrants, the court continued, considering whether the search of the defendant’s person was justified. On this issue the court held that “both the search and seizure of defendant were supported by individualized suspicion and thus did not violate the Fourth Amendment.”

In this drug case, the court held, deciding an issue of first impression, that an odor of marijuana emanating from inside a vehicle stopped at a checkpoint did not provide an officer with probable cause to conduct an immediate warrantless search of the driver. The defendant was driving the stopped vehicle; a passenger sat in the front seat. The officer was unable to establish the exact location of the odor but determined that it was coming from inside the vehicle. Upon smelling the odor, the officer ordered the defendant out of the vehicle and searched him, finding cocaine and other items. On appeal the defendant argued that although the officer smelled marijuana emanating from the vehicle, there was no evidence that the odor was attributable to the defendant personally. It was not contested that the officer had probable cause to search the vehicle. Probable cause to search a vehicle however does not justify search of a passenger. The State offered no evidence that the marijuana odor was attributable to the defendant. The court held: the officer “may have had probable cause to search the vehicle, but he did not have probable cause to search defendant.” 

In Re V.C.R., 227 N.C. App. 80 (May. 7, 2013)

Although an officer had reasonable suspicion to stop a juvenile, the officer’s subsequent conduct of ordering the juvenile to empty her pockets constituted a search and this search was illegal; it was not incident to an arrest nor consensual. The district court thus erred by denying the juvenile’s motion to suppress.

On what it described as an issue of first impression in North Carolina, the court held that a drug dog’s positive alert at the front side driver’s door of a motor vehicle does not give rise to probable cause to conduct a warrantless search of the person of a recent passenger of the vehicle who is standing outside the vehicle.

Probable cause and exigent circumstances supported an officer’s warrantless search of the defendant’s mouth by grabbing him around the throat, pushing him onto the hood of a vehicle, and demanding that he spit out whatever he was trying to swallow. Probable cause to believe that the defendant possessed illegal drugs and was attempting to destroy them was supported by information from three reliable informants, the fact that the defendant’s vehicle was covered in talcum powder, which is used to mask the odor of drugs, while conducting a consent search of the defendant’s person, the defendant attempted to swallow something, and that other suspects had attempted to swallow drugs in the officer’s presence. Exigent circumstances existed because the defendant attempted to swallow four packages of cocaine, which could have endangered his health.

There was probable cause supporting a warrantless search of the defendant. During a pat-down, an officer felt a digital scale in the defendant’s pocket and the defendant confirmed the nature of the object. The officer was justified in concluding that the scale was contraband given informant tips that defendant was selling drugs. Additionally, the defendant was coming from the area in which the informants claimed he was selling drugs, and he was acting nervously. The defendant did not challenge the trial court’s conclusion that exigent circumstances were present.

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