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Brian Beasley is the Legal Adviser for the High Point Police Department in High Point, North Carolina. In order to justify his exorbitant (not really) salary and keep his officers informed of the latest changes in the law, he writes legal updates from time to time. Brian knows that officers aren’t generally enthusiastic about reading something entitled “Legal Update” so he tries to include some humorous footnotes to encourage them. Since he began writing these updates, officers from other agencies have asked to be added to the mailing list, but Brian decided that creating a blog was by far a more arrogant and geeky option.

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    Deconstructing The Law of Constructive Possession, Part One

    27 Aug

    Posted by Brian Beasley In Legal Update

    To download a PDF file of this update, click here

    Deconstructing The Law of Constructive Possession:  Part One
    Vol. 3, Number 16
    August 27, 2010

    Brian Beasley
    Student of Legal Constructs and Legal Adviser, HPPD

                The legal office has been covered in plastic for most of this week due to the fact that a new roof is being put on the police department.1  Now one might suppose that less work was being done by your esteemed legal adviser, what with his desk, computer, file cabinets, and bookcases being literally “under wraps” and the loud noises of construction making it hard to concentrate, but I can safely assure you that just as much work was done this week in the legal office as is typically done in any ordinary week.2

                What all this construction did get me thinking about was the fascinating legal doctrine of constructive possession.3  In those crimes where possession of something is an element (usually your controlled substances offenses), the government can prove that possession in one of two ways.  Possession is easy to prove in those cases where the item or contraband is actually controlled by or found on the person of the defendant.  This is called “actual possession.”  However, in those cases where the item is found in close proximity to the defendant or in a location controlled by defendant but not in the defendant’s actual possession, the government can still prove that defendant constructively possessed the item if it can show that the defendant had the “power and intent to control its disposition or use.” Read More

    1. Although I’m not sure why we’re putting on a new roof, because when this economy turns around the City is going to build us a whole brand new police station.  Any day now! ↩
    2. I am not ignorant of the fact that this could either mean that your legal adviser somehow soldiered through under less than ideal conditions or that very little work is EVER done in the legal office.  We’ll just leave that “hanging chad” dangling for now. ↩
    3. Get it?  Construction.  Constructive Possession.  Sure it’s a stretch, but give me a break – I put these updates out so often it’s hard to come up with a super clever idea every time. ↩
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    2010 Sausage Report: Illustrated Edition

    09 Aug

    Posted by Brian Beasley In Legal Update

    To download a PDF file of this update, click here

    2010 Sausage Report:  Illustrated Edition
    Vol. 3, Number 15
    August 6, 2010

    Brian Beasley
    Supporter of Democracy and  Legal Adviser, HPPD

                “Laws are like sausages.  It is better not to see them being made.”                                                                                                  — German Chancellor Otto von Bismarck

                “No man’s life, liberty or property are safe while the legislature is in session.”
                                        — 1 Tucker 248, N.Y. Surr. 181

                The legislature recently wrapped up its work for the 2010 Legislative Short Session.  It is referred to as a “short session” because the North Carolina legislature is set up to have regular sessions only in odd-numbered years.  In a regular session, they pass a budget for two years and consider any legislation that is proposed.  In even numbered years (in theory), the legislature meets only to make adjustments to the budget and according to the rules may only consider legislation that “directly and primarily” affects the budget or those bills that passed one of the legislative chambers in the regular session.2  In the last several years, the short sessions have not been very short, dragging on into late July and even late August, but this year the legislators were able to get the budget amendments passed and adjourned in the early morning hours of July 10.3

              But enough of this Civics lesson!  Let’s look at the new laws that are important for law enforcement officers to know. Read More

    1. A very old court case from 1866.  The quote was part of the opinion written by Judge Gideon J. Tucker.  Apparently back then they weren’t as big on subject-verb agreement.  Some of you don’t know what that means and that’s okay.  The jokes are less cerebral from here on out. ↩
    2. However, there are some clever ways around this rule, including taking a bill that passed one of the chambers last year and “amending” it by taking out all of the current language and replacing it with the language of the new bill.  For example, “Susie’s Law,” the animal cruelty law that received a lot of press (and is covered later in this update) started out last year as a bill entitled “An Act To Allow Mutual Aid Agreements Between the State and Political Subdivisions of the State, As Recommended By The Joint Select Committee On Emergency Preparedness And Disaster Management Recovery.”  That bill received little to no press in large part because no one understood the title, much less what the bill was trying to accomplish. ↩
    3. Which goes to show that it takes much less time to decide how to spend your money when you don’t have any money to spend. ↩
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    Miranda Breaks The Language Barrier

    23 Jul

    Posted by Brian Beasley In Legal Update

    To download a PDF file of this update, click here

    What We’ve Got Here…:  Miranda Breaks The Language Barrier

    Legal Question of the Week
    Vol. 3, Number 14
    July 23, 2010

    Brian Beasley
    English Is My Mother Tongue1 and Legal Adviser, HPPD

    “What we’ve got here is . . . (a) failure to communicate.  Some men you just can’t reach.”
    – From “Cool Hand Luke” (1967)

                Chances are, in our diverse melting pot of a country, you have had occasion while carrying out your law enforcement duties to run across some folks that do not count English as their first language.  Sometimes in these circumstances, it can become difficult to communicate with your witness or suspect.  Maybe you attempt to speak with them with the Spanish you’ve picked up from watching “Dora the Explorer” and “Handy Manny.”  Another option is to find another officer who can translate.  Despite your best efforts, you have probably experienced the courtroom battles that ensue when the defense attorney later argues that his client didn’t understand a word you were saying and therefore, any evidence you uncovered should be thrown out.2

                One particular area of concern arises whenever an officer is asking a person with limited command of the English language to give up certain rights, such as asking for consent to search or trying to obtain a Miranda waiver.  How does the court determine whether these rights were understood and voluntarily waived?  The North Carolina Court of Appeals decided two cases this week that dealt with this issue and decided both in favor of the State. Read More

    1. Extra points if you know what this line is referring to…Answer coming later in this update. ↩
    2. I have prosecuted cases where the trial quickly became more about how well the officer spoke Spanish than whether the defendant was guilty or not (which is usually just fine with the defense attorney.)  I have seen officers cross-examined in Spanish, and Spanish interpreters called to testify whether the officer is actually speaking Spanish or is really only spouting jibberish (another language I’m fluent in, by the way).  It’s very hard to know when to object when you don’t understand the question or the answer. ↩
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    Hide and Go Seek: The Plain Feel Doctrine

    09 Jul

    Posted by Brian Beasley In Legal Update

    To download a PDF file of this update, click here

    Hide and Go Seek:  The Plain Feel Doctrine

    Legal Question of the Week
    Vol. 3, Number 13
    July 9, 2010

    Brian Beasley1
    Hidden In A Sea of Humanity and Legal Adviser, HPPD

                I’m sure that everyone while growing up has played games of “Hide and Seek.”2  You probably wouldn’t be surprised to learn that there are several variations of this game found worldwide.3  I’m sure you have also realized that as adults, we continue to play this game when it suits our needs.  At different times, we might hide from our supervisor, hide from the bill collectors, or hide from our spouses and kids.  How interesting that we learned these important life skills playing a game on the playground.

                Criminals today play their own version of Hide and Seek with the police.  They try to find ways, places, containers, and crevices in which to hide their drugs and officers are tasked with finding them.  Fortunately, a law enforcement officer has a valuable tool available to him or her in this struggle – the “plain feel” doctrine. Read More

    1. Hey – remember that time CourtTV did an hour long primetime special at my request so that I could announce whether I was taking this job and signing with the City of High Point or staying at the District Attorney’s office?  Yeah – me neither.  No one would be that arrogant, would they? ↩
    2. I prefer the name “Hide and Seek” to the alternate name of “Hide and Go Seek.”  You might ask why I used the “Hide and Go Seek” variant in the title.  It’s because I liked the meter better.  Remember back in high school English class when you studied the meter of poetry, meaning the number and stress of the syllables used in each line?  No?  Well, I was the guy who paid attention to stuff like that simply because I thought it was fun to say phrases like “iambic pentameter.”  You can tell why I had so many girlfriends back then. ↩
    3. In probably the earliest version, players try to remain hidden the longest and may move to other hiding spots while “it” isn’t looking. ↩
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    Reasonable Suspicion Pop Quiz

    25 Jun

    Posted by Brian Beasley In Legal Update

    To download a PDF file of this update, click here

    Be Reasonable!:  A Reasonable Suspicion Pop Quiz

    Legal Question of the Week
    Vol. 3, Number 12
    June 25, 2010

    Brian Beasley
    Would’ve Made A Mean Schoolteacher  and Legal Adviser, HPPD

                Alright, kiddies!  Get out your looseleaf notebook paper and your #2 pencils, because it’s time for a little pop quiz!  Our subject today is inspired by a recent series of debates that have occurred in the legal office regarding whether reasonable suspicion existed in a particular case or not.1  Based on some research I’ve done on the topic, I’ve decided to allow you to test your knowledge on this very fundamental doctrine of Fourth Amendment jurisprudence. Since I’m springing this pop quiz on you without warning,2 why don’t we do a brief review of the basics to try and help you improve your grade?3 Read More

    1. Unlike most of the debates that occur in the legal office, I was not all alone at the time this one happened.  There were actually other people present, which was pretty exciting. ↩
    2. Putting the “pop” in “pop quiz.” ↩
    3. Prior to taking the bar exam after graduating from law school, most bar applicants take an eight week review course to learn the material they need to know to successfully pass the test.  I was no exception.  Which of course begs the question – if they can teach us everything we need to know to pass the bar exam in eight weeks, why did I have to spend three years in law school?  Yet another of life’s little mysteries. ↩
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    More on Miranda: When Silence Is Golden

    04 Jun

    Posted by Brian Beasley In Legal Update

    To download a PDF file of this update, click here

    More On Miranda: When Silence Is Golden

    Legal Question of the Week
    Vol. 3, Number 11
    June 4, 2010

    Brian Beasley
    Can’t Shut Me Up and Legal Adviser, HPPD

                Hello, darkness, my old friend.  I’ve come to talk with you again because a vision softly creeping left its seeds while I was sleeping and the vision that was planted in my brain still remains within the sound of silence.1

                According to the numerous emails forwarded to me this week numerous times by numerous officers, the United States Supreme Court has handed down another ruling which affects our understanding of Miranda and how it applies in practice.  Berghuis v. Thompkins2 is the third Miranda-related opinion handed down by the Supremes already this year3 and by far the hardest to say and spell.4 Read More

    1. Ok, you caught me.  I didn’t make this up.  Apparently some guy named Paul Simon wrote a song called “The Sound of Silence” (or “The Sounds of Silence” depending on who you ask) in his bathroom a few months after the assassination of John F. Kennedy.  Pretty deep stuff.  Ever notice how you can get away with run-on sentences in singing but not in writing? ↩
    2. 08-1470,  560 U.S. ____ (2010). ↩
    3. The other two were Florida v. Powell and Maryland v. Shatzer, which were both discussed in Legal Question of the Week, Vol. 3, Number 4 entitled “Maryland v. Shatzer:  Ernesto Miranda and the Fortnight Rule.” ↩
    4. In case you are curious (and who wouldn’t be), the reason this case isn’t titled “U.S. v. Thompkins” or “Michigan v. Thompkins” is because it is not a criminal appeal.  Defendants sentenced to prison in state courts that have exhausted all their direct appeals may under certain circumstances bring a habeas corpus suit in federal court to try and have their conviction overturned.  A petition for a writ of habeas corpus is actually a demand for the prison official with custody to appear before a court and prove that they have lawful authority to detain the prisoner.  As a result, Thompkins (our defendant) is one party to this action and Berghuis (the warden of the prison where Thompkins was serving his sentence) is the other party.  I could throw in a whole lot more Latin here, but let’s just leave it at that for now. ↩
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    “I’m With Stupid:” The Reliability of Accomplice Statements

    24 May

    Posted by Brian Beasley In Legal Update

    To download a PDF file of this update, click here

    “I’m With Stupid”: The Reliability of Accomplice Statements
    Legal Question of the Week
    Vol. 3, Number 10
    May 21, 2010

    Brian Beasley
    Singing Like A Canary and Legal Adviser, HPPD

                In the interest of originality, let’s start this week’s update with…

    A HYPOTHETICAL SITUATION:

    It is a dark and stormy night.  You are on patrol when you receive a call of a breaking and entering in progress at a nearby business.  When you arrive on the scene you see a suspect climb out of one of the windows and run off into the nearby woods.  As you get closer, you see another suspect start to climb out the window and decide to take this suspect into custody.1 You successfully arrest suspect #2 and put him in the back of your patrol car, where you Mirandize him and ask him who the other guy was that climbed out of the window first.2  He confesses to the break-in and tells you that he knows the other guy as “Tattoo Sam” and that “Tattoo Sam” lives at a house close to where the breaking and entering occurred.

     You leave your arrestee in the custody of one of your fellow officers and decide to go over to the house where “Tattoo Sam” is supposed to live.  When you get to the house, you see a man in the front yard wearing a work shirt with the name “Sam” stitched on the pocket and you notice that the guy is covered in tattoos.  You wonder to yourself if this might be “Tattoo Sam.”  He acknowledges that most people call him that. 

    Do you have probable cause to arrest Tattoo Sam?

                Surprisingly, the answer may be “yes.”3 Read More

    1. Your choice was to chase after the first suspect or grab the one that hasn’t had a chance to run yet.  It doesn’t take you long to make that decision. ↩
    2. You are required to Mirandize this suspect because (1) he is in custody (his movement is restrained to a degree associated with a formal arrest) and (2) the question (“who committed this crime with you”) is interrogation because it is reasonably likely to elicit an incriminating response. ↩
    3. This should be “yes” with several asterisks next to it.  Please read the update for some warnings about taking this answer too definitively. ↩
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    Passing Through Checkpoint Chickie: How To Conduct A Legal Checkpoint

    07 May

    Posted by Brian Beasley In Legal Update

    To download a PDF file of this update, click here

    Passing Through “Checkpoint Chickie”: How To Conduct A Legal Checkpoint
    Legal Question of the Week
    Vol. 3, Number 9
    May 7, 2010

    Brian Beasley
    Misser of Mayberry and Legal Adviser, HPPD

                In that great television series, The Andy Griffith Show,1 Don Knotts showed us what being a law enforcement officer in North Carolina is all about through his portrayal of the fearless lawman, Barney Fife.  In the episode entitled “Barney’s Sidecar,” a report comes into the Sheriff’s office of “a speeder up on Highway 6.”2  Upon learning that Andy3 needs the squad car for other official business,4 Barney purchases a World War II motorcycle complete with sidecar5 and uses it to establish a traffic checkpoint on Highway 6 to “nip this speeding in the bud.”6  Hilarious hijinks ensue.

                This episode got the legal office thinking about whether Barney’s checkpoint was constitutional.7  As it happens, the North Carolina Court of Appeals handed down a decision in a checkpoint case just this week!8  Read More

    1. One of the interesting premises of the Andy Griffith show was that although Andy was the Sheriff, he refused to carry a gun, relying instead on his deep fountain of wisdom and common sense to solve any problem.  Who ever heard of a sheriff without a gun?  That would be as crazy as a sheriff who was prohibited under state and federal law from carrying a gun.  That could never happen…..could it? ↩
    2. Since the locations in The Andy Griffith Show were often based on real N.C. spots (Mount Pilot was Pilot Mountain, for instance) I was curious if there was a N.C. Hwy 6.  In fact, there used to be, but it was decommissioned in 2005.  N.C. Hwy 6 basically followed Patterson Avenue to Lee Street near the Greensboro Coliseum.  Come to think of it, there are quite a few speeders on that road. ↩
    3. Andy Griffith and I are both graduates of the first ever public university, the University of North Carolina at Chapel Hill.  We were also both famous members of the UNC Men’s Glee Club.  I would imagine we both were the coolest guys on campus during our time there, but I haven’t asked him to be sure. ↩
    4. Did Andy ever drive a car other than the official squad car?  Weren’t the taxpayers of Mayberry unhappy that their Sheriff used the only police car in town for personal business? ↩
    5. It’s unclear whether Barney used seized funds from Mayberry’s drug interdiction unit to make this purchase. ↩
    6. If you aren’t familiar with this episode you can catch the relevant scene on YouTube here:  http://www.youtube.com/watch?v=1kplr_UDUIM   Any resemblance between Barney and former or current HPPD officers  is strictly coincidental. ↩
    7. This gives me an idea for a special crossover episode between The Andy Griffith Show and Law and Order.  Barney Fife travels to Manhattan for a vacation and is drawn into a homicide investigation.  I can see Barney testifying for District Attorney Jack McCoy now. ↩
    8. What a coincidence! ↩
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    Legal Question Grab Bag

    26 Apr

    Posted by Brian Beasley In Legal Update

    To download a PDF file of this update, click here

    The Legal Question Grab Bag:1 Assorted Answers to Unrelated Questions

    Legal Question of the Week
    Vol. 3, Number 8
    April 23, 2010 

    Brian Beasley
    Tired of Trying to Decide on a Single Topic and Legal Adviser, HPPD

                You’ve probably heard people talk about a slow news day before.  Right now in the legal office, we are experiencing a period of slow legal news.  The legislature is not in session and there haven’t really been any cases of note in the last few weeks.  All of this makes it very difficult to find any material to support hilarious footnotes.  Nevertheless, your legal adviser understands just how important these updates are to the day-to-day function of the department, so I’ve decided to tackle some of the smaller questions that have floated through the office recently.  Fortunately for all of us, I have written down these questions on little slips of paper, meticulously folded each one, dropped them into an empty mayonnaise jar,2 and will randomly select them and see if I can answer them here for everyone’s benefit.  Read More

    1. Definition:  A receptacle containing small articles which are to be drawn without being seen. ↩
    2. Some of you (the old ones) may be thinking that a child of four could plainly see that these items were hermetically sealed and the mayonnaise jar was kept on Funk & Wagnalls’ front porch since noon today.  Most of you have no idea what I’m talking about….ever. ↩
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    Peek-a-Boo Searches Revisited

    09 Apr

    Posted by Brian Beasley In Legal Update

    To download a PDF file of this update, click here

    Peek-a-boo Searches Revisited:  State v. Battle
    Vol. 3, Number 7
    April 9, 2010

    Brian Beasley
    Not As Influential As He Thought and Legal Adviser, HPPD

    Alternate Title:  “Does Anyone Really Know What’s Going On Here?”

                We start off today’s legal update with some bad news.  You may recall that the legal office sponsored a contest last summer1 to find a new term for certain types of “strip searches” that aren’t really strip searches.  In these types of searches, suspects are not completely unclothed, but a search is done of the inside of the undergarments to look for hidden contraband or weapons.  After millions of entries2 were sorted through, the legal office settled on calling these types of searches “peek-a-boo searches.”3

                We were confident after making this important declaration that the term would spread like wildfire and become a widely accepted part of American jurisprudence.  It seemed a certainty that peek-a-boo searches would be the subject of learned legal treatises, hotly debated in courtrooms around the country, and taught in reputable law schools everywhere leading to fame and fortune for your very own legal adviser.  I was preparing for talk show appearances, celebrity “Legal Question of the Week” signings, and a phone call from the President asking if I would do him the privilege of serving as the 10th United States Supreme Court Justice.4

                Unfortunately, the phrase hasn’t caught on yet. Read More

    1. See 2 LQOW 16 (“School Strip Searches,” 07/16/09) and 2 LQOW 17 (“Brouhaha Law,” 07/31/09) for details.  While I’m talking about old legal updates, some questions arose this week about DWI vehicle seizures.  Do YOU know when a vehicle should be seized?  If not, go back and read 1 LQOW 4, (“Drunks Drive the Best Cars,” 07/18/08.)  If you don’t know where to find old legal updates, contact me and I will show you. ↩
    2. Give or take a million or two. ↩
    3. The idea behind this terminology was to make this type of search sound less intrusive in hopes that more of them would be upheld in our appellate courts. ↩
    4. I would have turned him down, of course.  Why would I want to leave the High Point Police Department? ↩
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