• Search for:

• Recent Posts

  • 50-C No Contact Orders: The Red-Headed Stepchild
  • Gruesome Discovery: Can Defense Attorneys Get Your Personal Cell Phone?
  • Juveniles With Status: No Holding Cells For Young People
  • Easter Eggs in Chapter 20: Failing to Return a Rental Car on Time
  • Consent Searches: How Much Damage Can I Do?
• 

• Archives

  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008

To download a PDF file of this update, click here

50C No-Contact Orders:  The Red-Headed Stepchild

Legal Question of the Week
Vol. 5, Number 10
May 18, 2012 

Brian Beasley
Used to Be Red-Headed¹ and Legal Adviser, HPPD

            All law enforcement officers are pretty familiar with the domestic violence protective order, also called a 50-B or 50-B order.  The 50-B gets its name from the fact that the laws governing it are found in Chapter 50B of the North Carolina General Statutes.  Although many officers have heard about a 50-C order, I have found that there is a lot of confusion and misunderstanding about this close relative of the 50-B.  While the 50-B gets all the attention, the 50-C is treated like the red-headed stepchild² of the family.

            While 50-Bs³ come into play when there is a particular relationship between the parties, 50-Cs are appropriate when certain conduct has taken place.  Although many people believe that a 50-C is an option anytime a person wants to get a restraining order against someone who is not in a “personal relationship” with them, there are actually only two very specific kind of activities that will allow for this: (1) Nonconsensual sexual conduct, or (2) Stalking. Read more

To download a PDF file of this update, click here

Gruesome Discovery:  Can Defense Attorneys Get Your Personal Cell Phone?

Legal Question of the Week
Vol. 5, Number 9
May 4, 2012 

Brian Beasley
Dumber Than His Smartphone and Legal Adviser, HPPD 

            Now that I have gotten your attention with this week’s title,¹ let me grab your attention even more and tell you that the answer to the question is most likely “yes” under some circumstances.²  As you consider the things on your personal cell phone that you might not want a judge or defense attorney to see, let me share a true story with you. Read more

To download a PDF file of this update, click here

Juveniles With Status: No Holding Cells For Young People¹

Legal Question of the Week
Vol. 5, Number 8
April 20, 2012 

Brian Beasley
Grumpy Old Man and Legal Adviser, HPPD 

            You may have seen the news story this week about a situation involving a six-year-old girl being handcuffed by police in Milledgeville, Georgia.²   Apparently, this particular six-year-old kindergartener threw a very large tantrum at school one day and according to news reports tore items off the walls and threw furniture, striking her principal in the leg. She also jumped on a paper shredder, tried to break a glass frame and bit the door knob in an effort to escape.³

            The police were called and after the parents of the child could not be reached, the decision was made to handcuff the child and take her to the police department.⁴  When they arrived at the station, according to police, the girl was placed in a patrol briefing room and the handcuffs were removed.  The girl’s family has claimed that the handcuffs remained on and the girl was placed in a holding cell. Read more

To download a PDF file of this update, click here

 Easter Eggs in Chapter 20: Failing to Return a Rental Car on Time 

Legal Question of the Week
Vol. 5, Number 7
April 5, 2012  

Brian Beasley
Allergic to Pastel Colors and Legal Adviser, HPPD  

            Most everyone involved at all with North Carolina law knows that “Chapter 20” refers to the chapter of the North Carolina General Statutes that contains the motor vehicle laws of this great state.  Those unfortunate souls who have to deal with this chapter on a regular basis know that it is one of the most complicated set of laws ever invented and crammed together in a large book and seems to grow more complex every day.  Statutes contained in Chapter 20 can sometimes vanish for months and years at a time, lost in the legal minutiae, only to resurface suddenly and cause the experienced lawyer to exclaim aloud, “I never knew that was in Chapter 20!”  I know this because it happened to me just last week.  More on this in a bit. 

            When Easter morning dawns this Sunday, my kids will be awakened extra early and still groggy from sleep will be pushed down the stairs and ordered to find plastic eggs hidden all around the house.¹  This is a fun activity (for the wife and me, at least) because these plastic eggs will be filled with candy and there will also be a hidden Easter basket for each child with various small trinkets and gifts.  This event soon becomes stress filled, however, since my children are not very good at finding things even when wide awake and the longer it takes them, the later we arrive at the special early Easter service at church.² Read more

To download a PDF file of this update, click here

Consent Searches:   How Much Damage Can I Do?¹

Legal Question of the Week
Vol. 5, Number 6
March 23, 2012 

Brian Beasley
Behind on Preventative Maintenance and  Legal Adviser, HPPD

  

 

            One of the reasons lawyers are so universally well-liked is our ability to take even simple concepts and make them enormously complicated.  Today’s legal update deals with one such example.  Those not fortunate enough to have endured the rigors of law school would see little controversy in the following exchange:

            Officer:  May I search your vehicle?
            Motorist:  Yes, Officer, you may.

            Again – non-lawyers would believe that the giving of consent to an officer to perform a search of his automobile was a simple matter.  But lawyers immediately start to question exactly what is meant by this.  Does the officer intend to search the entire car?  Closed containers inside the car?  What about locked ones?  What about the trunk or even under the hood?  Can the officer now tear up the upholstery?  Open the glove box?  Does the naïve motorist know what he or she is giving consent for the officer to do?  Of course not, because . . . wait for it . . . they need a lawyer!  Here’s my card…

            So you see, when a motorist gives an officer consent to perform a search of the vehicle, the issue becomes in many cases a question about how far the scope of the given consent allows an officer to go.  Over the years, case law has determined that the scope of the consent, or the boundaries of a search based on that consent, is determined by looking at “what the typical reasonable person² would have understood by the exchange between the officer and the suspect.”³  Read more

To download a PDF file of this update, click here

Just Because You’re In Custody Doesn’t Mean You’re In Custody

Legal Question of the Week
Vol. 5, Number 5
March 9, 2012 

Brian Beasley
Free Bird and Legal Adviser, HPPD 

            Let’s jump right in this week, because the legal office is extremely busy keeping a close vigil on the television to make sure nothing happens that might raise thorny legal issues for the department.  So far all I’ve seen is lots of basketball, but you can rest assured that I will not turn my television off until I’m sure there is no breaking news and the city is safe.  It’s the least I can do.

            Our real-life story this week stems from a recent U.S. Supreme Court opinion in the case of Randall Fields.  At the relevant time, Mr. Fields was a guest at a Michigan jail, serving a sentence for some criminal behavior.  The opinion doesn’t specify what crime Fields had committed to earn his prison sentence, but I’ve noticed that bank robbers have been busy lately, and that the skill of bank robbers has suffered greatly since the days of Jesse James.¹  Take this guy for instance – and remember, those who fail to plan, plan to fail. Read more

To download a PDF file of this update, click here

On Ballance:  Peeps, Apple Jacks, and Open Fields

Legal Question of the Week
Vol. 5, Number 4
February 24, 2012 

Brian Beasley
Eats Like A Bear and Legal Adviser, HPPD 

            Today we look at a recent North Carolina Court of Appeals case that deals with bear hunting, processed foods, and an area of Fourth Amendment law that sometimes gets forgotten – the “open fields” doctrine.  I’m not a hunter, but I consider myself a connoisseur¹ of fine processed foods, so once I read this case I knew it was perfect as a legal update topic.  So without further delay, let’s dig in.

            The facts of State v. Ballance begin on September 22, 2008, when two North Carolina Wildlife Officers entered a swampy and wooded portion of land in Hyde County belonging to Frank Ballance.  Mr. Ballance’s property contained nearly 119 acres of wooded land which was used for hunting.  There were no buildings or residences on the property, and Ballance himself lived four to five miles from the property.  It is unclear from the opinion whether the property was posted with no trespassing signs, but there is some indication that there was a cable blocking an old logging road that entered the land.  The officers did not have a search warrant. Read more

To download a PDF file of this update, click here

Back to Mbacke: N.C. Supreme Court Tries to Clarify Gant

Legal Question of the Week
Vol. 5, Number 3
February 8, 2012 

Brian Beasley
Can See Clearly Now and Legal Adviser, HPPD 

            I am sure that those of you who are fortunate like me and blessed with the privilege of having to wear glasses¹ have experienced the following exercise when getting an eye examination.  The doctor brings a large instrument that looks like an old World War II submarine periscope lens close to your face and proceeds to experiment with different lenses to find the perfect prescription for your particular eye shortcomings.  He or she will give you two options at a time and ask you, “Is this one clearer…..or this one?”

            This test is very stressful for me.  Sure, it starts out easy as you are asked to compare a somewhat clear image with a very fuzzy one.  But very quickly it becomes an exercise in trying to choose between two lenses that are almost identical.  Having been an overachiever all my life, I feel a great deal of pressure to choose the “right” answer, but it is difficult because I don’t have great eyesight which is the reason I am having to go through this process in the first place.  Life is very circular sometimes.

            I was reminded of these traumatic events when thinking about the North Carolina Supreme Court’s recent opinion in State v. Mbacke.²  The Court has cleared up things a little, but there is still quite a bit of fuzziness left over.

            I am sure that those of you who were fortunate enough to sit through my recent In-Service Legal Update training³ will recall that two N.C. Court of Appeals cases were discussed that reached seemingly contradictory decisions on very similar facts.  The two cases, State v. Foy⁴ and State v. Mbacke, both dealt with searching a vehicle incident to the arrest of the driver for carrying a concealed weapon.  The Foy opinion ruled that the U.S. Supreme Court case of Arizona v. Gant⁵ allowed such a search, while the Mbacke opinion ruled that it was an unconstitutional search after Gant.⁶  I pointed out to you that these decisions were on appeal to the N.C. Supreme Court and we would really have to wait and see how that court ruled.  Well, the wait is over.

            THE FACTS OF MBACKE

            In Mbacke, officers were dispatched in response to a 911 call that an armed man was parked in the caller’s driveway and had shot up the caller’s house the previous night.  Officers arrived on the scene and found the defendant matching the description and in the described car, which was starting to back out of the driveway.  They stopped the vehicle and saw the defendant initially rest his hands on the steering wheel, but then lower his hands to his waist.

            The officers ordered the defendant to keep his hands visible and exit the vehicle.  As the defendant got out of the car, he kicked the door shut behind him.  He complied with officers’ commands to lie on the ground and they advised him as they handcuffed him that he was not under arrest, but was being detained because they had received a report that a person matching his description was carrying a weapon.  The defendant then told officers he had a gun in his waistband.  After the gun was retrieved and made safe, he was placed under arrest for carrying a concealed weapon.

            An officer then went to the defendant’s car and opened the driver’s door.  As he looked inside, he saw a white brick wrapped in green plastic protruding from beneath the driver’s seat.⁷  The brick turned out to be 993.8 grams of cocaine and after a trial; the defendant was convicted and sentenced to 175 to 219 months of imprisonment for drug trafficking.

            THE N.C. SUPREME COURT’S DECISION

            The only issue considered on appeal was whether the search of the defendant’s car after his arrest violated the Fourth Amendment in light of the Gant ruling.  Remember that Gant severely limited the ability to conduct motor vehicle searches incident to arrest except in two situations:  (1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, or (2) when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

            Since justification #1 was clearly not present, the court’s analysis turned on whether the officers had reason to believe that evidence related to the crime of carrying a concealed weapon would be found in Mbacke’s car.  To answer that question, they first had to decide exactly what this “reason to believe” standard meant.  After considering that this had to be a lesser standard than probable cause⁸ and the advantages to having a standard that was easily understood, the court ruled that the “reason to believe” standard was the same as the well-known “reasonable suspicion” standard.

            Applying that standard, the court then ruled that the search of Mbacke’s car was constitutional.  The court pointed out that the defendant was arrested for carrying a concealed weapon and that fact along with the report of his actions the night before and his furtive behavior when confronted by officers was enough to “support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant’s vehicle.”

            So does this ruling mean that when an arrest is made for a weapons charge, it is permissible to search the vehicle incident to that arrest?  Well, that’s where the fuzziness comes in.  You see, the court based its ruling in part on court decisions from other jurisdictions, stating that “[i]n general, courts examining an offense involving weapons have inferred that the offense, by its nature, ordinarily makes it reasonable to believe the defendant’s car will contain evidence of that offense, so that searching a defendant’s car incident to an arrest for a weapons offense is almost always consistent with the Fourth Amendment.”  But near the end of their opinion, they had this to say:

“Even though we conclude that the search of defendant’s vehicle was constitutionally permissible, we stress that we are not holding that an arrest for carrying a concealed weapon is ipso facto⁹ an occasion that justifies the search of a vehicle.  We believe that the “reasonable to believe” standard required by Gant will not routinely be based on the nature or type of the offense of arrest and that the circumstances of each case ordinarily will determine the propriety of any vehicular searches conducted incident to an arrest.”

            In other words, the court isn’t stating that an arrest for a weapons charge automatically gives the right to search incident to arrest, but judging by the facts of this case, it doesn’t seem as though there’s a whole lot more that’s required.

BOTTOM LINE

1.  We now know that in North Carolina courts, “reason to believe” means reasonable suspicion.  So you may now search a car incident to arrest if you have a reasonable and articulable suspicion that evidence relevant to the crime of arrest might be found there.
2. If you make an arrest for a weapons related offense, be prepared to articulate some additional facts (for example, furtive actions by the defendant) to justify it under Gant.
3. Remember – there are many other justifications for searching a motor vehicle that are more clearly explained.  Consent searches, inventory searches, and protective sweeps might be permissible in a given set of circumstances and more easily justified.

Finally, I leave you with the following item that you may find interesting.

 

 

            I don’t know about you, but for me, this one is a real head-scratcher.  Oops, that’s probably insensitive – I apologize. 

 

Brian T. Beasley
Police Attorney
High Point Police Department

FOOTNOTES:

To download a PDF file of this update, click here

Supreme Court Rules On GPS Trackers:  Is It 1984 Yet?

Legal Question of the Week
Vol. 5, Number 2
January 27, 2012 

Brian Beasley
Guy With Two Big Brothers and Legal Adviser, HPPD 

            It was 1949 when George Orwell¹ published his classic novel “1984” about a future world where all citizens were under constant surveillance at all times by a being called “Big Brother.”  Orwell was a few decades too early,² but I wonder what he would think of the fact that inexpensive technology now exists to enable a government to constantly track the movements of its citizens.  Orwell wrote in a time where satellites orbiting the earth and phones you could carry around in your pocket were things dreamed of only in science fiction.  As we enter 2012, we almost accept that the GPS features of our smartphone or the OnStar device in our car can be used to locate us at any time.  Security cameras and closed-circuit video monitoring is commonplace and widespread.

            Against this backdrop, our country’s courts are faced with the task of interpreting what a document written in the 18^th century means when applied to technologies never envisioned by the founding fathers that wrote it and debated it.  As you no doubt know by now, the U.S. Supreme Court issued a ruling this week in a case dealing with the use of GPS trackers to track a suspect for an extended period of time.  In United States v. Jones,³ the Court ruled that installing a GPS tracker onto a vehicle for the purpose of obtaining information constitutes a “search” under the Fourth Amendment. Read more

To download a PDF file of this update, click here

Cuts Like A Knife:
Unreasonable Methods of Seizure

Legal Question of the Week
Vol. 5, Number 1
January 13, 2012

Brian Beasley
Pretty Sharp Guy and Legal Adviser, HPPD

Happy Friday the 13th! I came up with two New Year’s resolutions this year: (1) keep my legal updates shorter, and (2) avoid adult oriented content of a prurient nature included solely to drive up readership. The jury is still out on #1 but I’m getting ready to break #2 and we’re not even out of January. So better luck next year, I guess. Before we go on, I’m required by law to share the following warning with you:

WARNING: THE FOLLOWING LEGAL UPDATE CONTAINS MATERIAL THAT MAY BE OFFENSIVE TO SOME BECAUSE IT DEALS WITH A CASE INVOLVING A CRIMINAL WHO CHOSE TO TIE HIS ILLEGAL DRUGS TO… WELL, LET’S JUST SAY A CERTAIN PART OF HIS ANATOMY… AS PART OF HIS WELL THOUGHT OUT CRIMINAL SCHEME.

READER DISCRETION IS ADVISED.

Now that we have everyone’s attention, let’s jump right in.

Just before the dawn of 2012, the Fourth Circuit Court of Appeals decided the case of U.S. v. Edwards,¹ which arose out of a strip search² conducted by Baltimore police officers back in 2009. On January 14, 2009, officers received a complaint that Joseph Edwards had threatened his girlfriend by brandishing a firearm. While an officer went to obtain a warrant for the assault, other officers went to look for Edwards. Detective Bailey was one of them, being familiar with Edwards and his history of using and selling illegal drugs.

At 11:15 p.m., Bailey and three other officers observed Edwards walking on a residential street. Bailey exited his car and asked Edwards to walk over to him. Bailey later testified that Edwards was not exhibiting any of the characteristics generally associated with an individual who is armed, such as clutching at his waistband. Additionally, officers had no information at this time indicating that Edwards was in possession of any drugs.

The officers detained Edwards and handcuffed him with his hands behind his back for officer safety based on the suspicion that he might be armed due to the nature of the crime they were investigating. After being informed that the arrest warrant had been issued, Bailey told Edwards that he was under arrest. He then conducted a search of Edwards but did not find any weapons or contraband.

As a transport van arrived, the officers decided to search him a second time to ensure he was not hiding any weapons. While Bailey and three other male officers surrounded Edwards, Bailey unfastened Edwards’ belt, loosened it, and pulled Edwards’ pants and underwear away from his body. The officers directed a flashlight beam inside both the front and back of Edwards’ underwear.³ When they did so, they could see a plastic sandwich baggie which contained 43 smaller plastic baggies containing crack cocaine tied in a knot around Edwards’ penis.⁴

After discovering the baggie, another officer held Edwards’ pants and underwear open while Bailey put on gloves, took a knife that he had in his possession, and cut the baggie off Edwards’ penis. This “procedure” was apparently done without the aid of a flashlight, although the area was illuminated by a nearby streetlight. Edwards remained handcuffed behind the back the entire time.

The Fourth Circuit held that the search was unconstitutional because the use of a knife in cutting the sandwich baggie off “posed a significant and an unnecessary risk of injury to Edwards, transgressing well settled standards of reasonableness.” As a result, the crack cocaine should have been suppressed and Edwards’ conviction was vacated.

As you no doubt know, the Fourth Amendment protects against unreasonable searches and seizures. This means that not only is probable cause required in most instances, the method and scope of the search must also be reasonable. Although it doesn’t come up as often, this requirement of reasonableness also applies to the method of seizing the evidence.

Before we get to the seizure, let’s discuss the strip search itself.⁵ I have previously advised you that when you need to do a strip search incident to arrest, you should do so in private rather than in a public place unless there is some overwhelming exigency requiring otherwise.⁶ In hindsight, it might have been better for these officers to conduct this search inside the van or perhaps find a restroom close by. Despite the fact that he was surrounded by officers so that no onlooker could see anything they shouldn’t be seeing, the court still viewed this as an invasive search done in public which cuts against a finding of reasonableness. In this case, although the court expressed concerns about the location of the search, they didn’t really rule on that issue because they were so concerned about the method of the seizure.⁷

As stated above, the court ruled that the drugs were removed from Edwards’ person in an unnecessarily dangerous and therefore unreasonable manner. According to the court, there were several alternatives available to the officers for removing the baggie, including untying the baggie, removing it by hand, tearing the baggie, or “requesting that blunt scissors be brought to the scene.”⁸ A dissenting judge pointed out that these alternatives would require that officers physically touch Edwards’ penis, which in his opinion would make them less desirable.⁹ I offer no opinion here, but leave it to your individual conscience to determine which of these alternatives you would select if you ever found yourself in similar circumstances. Perhaps you will want to discuss it around the water cooler in the coming weeks.¹⁰

The main lesson to take from this case is that in situations where your seizure of evidence might cause injury to a person, you must take reasonable steps to find a way of obtaining the evidence in a safe way. I also want to remind you again to be very careful when and how you do these types of strip searches. And finally, watch where you’re putting that knife!

Brian T. Beasley
Police Attorney
High Point Police Department

FOOTNOTES:

• Subscribe By Email

  Enter your Email
  
  
  Preview | Powered by FeedBlitz

  

• Legal

  • Guilford County Jail Look up who is in jail currently
  • High Point City Code Local ordinances
  • NC Criminal Law NC School of Government Criminal Law Blog
  • NC Ct. Opinions NC Supreme and Ct. App. opinions
  • NC General Assembly Look up statutes or pending bills
  • Sex Offender Registry Search to find a sex offender near you
  • Smith, Rodgers, and Strickland, PLLC Great guys and a great site for legal updates

• News

  • Durham Herald-Sun My old stomping ground
  • High Point Enterprise Local paper

• Sports

  • Boston Dirt Dogs My Favorite RedSox page
  • Boston Red Sox Official MLB page
  • Inside Carolina TarHeel Sports news
  • Red Sox Extra Bases Boston Globe’s Red Sox blog

• Miscellaneous

  • Bible Gateway
  • Francisco Road My Band
  • High Point Police Department PD Homepage