Smith's Criminal Case Compendium

Smith's Criminal Case Compendium


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., 06/23/2024
E.g., 06/23/2024

This case arose from the cross-border shooting of a 15-year-old Mexican child by a U.S. border patrol agent. The parents of the child sued the agent in federal court for Fourth and Fifth Amendment violations pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Bivens found an implied cause of action for constitutional violations by federal officers where no statutory authorization for damages exists. The scope of a Bivens claim has been limited by the Supreme Court over time, and separation of powers concerns caution against extending Bivens to new context, a “disfavored judicial activity.” See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). In determining whether a Bivens remedy is available, the court first determines whether the claim involves new context. New context is defined broadly. “We regard a context as ‘new’ if it is different in a meaningful way from previous Bivens cases decided by this Court.” Slip op. at 10. If the claim presents new context, the court then determines whether there is a “reason to pause before applying Bivens to new context or to a new class of defendant . . .” Id.

Bivens has been applied to Fourth and Fifth Amendment claims before in the context of illegal search and arrest in New York City, and to sex discrimination by a congressman in Washington, D.C. A cross- border shooting, however, was new context according to the majority. “There is a world of difference between those claims and petitioners’ cross-border shooting claims, where ‘the risk of disruptive intrusion by the Judiciary into the functioning of other branches’ is significant.” Id. at 11. Here, the court found that the foreign policy implications of extending Bivens to a cross-border shooting was factor against extending the remedy. “The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.” Id. at 12 (citation omitted). National security concerns were another factor against extension of Bivens to this context. “Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate . . .” Id. at 17. Further, that Congress has limited the ability to recover damages from the actions of U.S. agents while abroad also indicates the need for caution. It is the role of Congress, not the courts, to fashion damages remedies, and Congress has indicated its intention to limit judicial remedies for acts of federal officers abroad by repeatedly refusing to authorize such causes of action. Concluding, the majority observed:

In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern—respect for the separation of powers. . .Congress’s decision not to provide a judicial remedy does not compel us to step into its shoes. . .When evaluating whether to extend Bivens, the most important question ‘is who should decide’ whether to provide for a damages remedy, Congress or the courts? The correct ‘answer most often will be Congress.’ That is undoubtedly the answer here. Id. at 22-23.

The Fifth Circuit’s judgment dismissing the suit was therefore affirmed by 5-4 vote. Chief Justice Roberts, and Justices Thomas, Gorsuch, and Kavanaugh joined the majority opinion. Justice Thomas, joined by Justice Gorsuch, wrote separately to advocate that Bivens be overruled altogether.

Justice Ginsberg authored a dissent, joined by Justices Breyer, Sotomayor, and Kagan. According to the dissent, this was not new context and there were no justifications sufficient to deny a Bivens remedy. “Rogue U.S. officer conduct falls within a familiar, not ‘new,’ Bivens setting.” Id. at 30. The plaintiffs have no other possible recourse, and this case was “not an isolated incident.” The dissenting justices would have reversed and allowed the claim to proceed. Justice Ginsberg concluded:

In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing. I resist the conclusion that ‘nothing’ is the answer required in this case. Id. at 42 (Ginsberg, J., dissenting).

In this Buncombe County case, the Supreme Court affirmed the Court of Appeals decision finding no error with the trial court’s revocation of defendant’s probation over a year after the end of the probation term.

In January of 2017, the Asheville Police Department executed a search warrant of defendant’s residence, recovering marijuana, a digital scale, a firearm, and cash, including $40 used in a previous controlled buy of narcotics from defendant. At the time of the search warrant, defendant was already on supervised probation. Defendant was subsequently charged with possession of marijuana and related drug offenses and possessing a firearm by a felon. Defendant’s probation officer prepared violation reports identifying defendant’s offenses while on probation and filed them in February of 2018, more than two weeks before defendant’s probation expired on February 28, 2018. Although defendant successfully filed a motion to suppress the results of the search warrant, leading to the state dismissing the charges against him, the probation violations reached the trial court in April of 2019. The trial court found that defendant committed a new criminal offense while on probation and revoked defendant’s probation.

The Supreme Court first considered whether the trial court had jurisdiction to revoke defendant’s probation, examining the question de novo. The three requirements of G.S. 15A-1344(f) determine if a trial court has jurisdiction to revoke a defendant’s probation after it has expired; here the court found that all three were satisfied, but examined the adequacy of the “good cause shown and stated” to satisfy the requirement in (f)(3). Slip Op. at 10. The court turned to similar uses of “good cause” such as continuance motions, and examined related precedent to find that the trial court’s determination was not an abuse of discretion and was justified under the circumstances. The court also rejected defendant’s argument that the state must show “reasonable efforts” to schedule the probation revocation hearing at an earlier time, explaining the caselaw referenced by defendant examined a version of G.S. 15A-1344(f) no longer in effect. Id. at 19.

Justice Earls, joined by Justice Hudson, dissented and would have found that the trial court did not possess good cause to revoke defendant’s probation. Id. at 21. 

In this Person County case, defendant appealed the post-conviction order revoking his probation for a new criminal offense, requesting a review of the record similar to review of criminal convictions under Anders v. California, 386 U.S. 738 (1967). The Court of Appeals granted certiorari to review defendant’s appeal, and affirmed the order revoking defendant’s probation.

Defendant’s counsel submitted a brief along with defendant’s petition for writ of certiorari seeking “Anders-type review because counsel had examined the record and applicable law and was ‘unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal.’” Slip Op. at 2. The majority held that the lack of briefing on appeal constrained the court’s ability to review arguments against the revocation under the rules of appellate procedure, “as any argument not advanced in an appellant’s brief is abandoned under Rule 28 . . . [and] based on the reasoning of our Supreme Court’s opinion in State v. Ricks, 378 N.C. 737 [] (2021), we must conclude that it would be an abuse of our discretion to invoke Rule 2.” Slip Op. at 3. Because the majority held that the Ricks precedent prevented the Court of Appeals from invoking Rule 2 to suspend Rule 28, the court simply examined the indictments to confirm the trial court had jurisdiction to try defendant, and examined no other arguments before affirming the trial court’s order revoking probation.

Judge Inman concurred in the result only, and wrote separately suggesting that the court had “the jurisdiction and authority to consider the issues raised in [d]efendant’s Anders brief on appeal from an order revoking his probation without invoking Rule 2,” but that after conducting an Anders-style inquiry, the judge found no prejudicial error. Id. at 5.

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