A Warrant for your DWI Blood

Sec. 20-16.2(b) purportedly allowed an officer to obtain blood from an unconscious person without the requirement that the officer first get a warrant.

That provision was struck down last week in State v. Romano, in which an officer obtained excess blood drawn from a patient/DWI suspect at the hospital without having first gotten a warrant.

It is true, as the State contends, that this Court has affirmed the use of N.C. Gen. Stat. § 20-16.2(b) to justify warrantless blood draws of unconscious DWI defendants. See State v. Hollingsworth, 77 N.C. App. 36, 334 S.E.2d 463 (1985); see also State v. Garcia-Lorenzo, 110 N.C. App. 319, 430 S.E.2d 290 (1993). However, these cases did not have the benefit of the United States Supreme Court’s guidance in McNeely, which sharply prohibits per se warrant exceptions for blood draw searches.

Missouri v. McNeely dealt with an attempt by police in Missouri to introduce evidence of a chemical analysis at a DWI trial where that evidence had been gathered without the consent of the driver, and without a warrant. The Supreme Court ruled that, absent a showing of exigent circumstances, the state could not admit the evidence of the blood result at trial without first showing that a warrant had been properly obtained.

Romano effectively strikes down the all-purpose provision in 20-16.2(b) that provides that the state may take and admit the results of a blood draw without a warrant where the driver is unconscious. The state must show exigent circumstances.

Supreme Court Rules That Police Need Warrant to Search Cell Phones

Criminal defense lawyers and defendants accused of a crime are breathing a sigh of relief today after a welcome ruling by the Supreme Court. The Court ruled unanimously that police cannot search the cell phone of a criminal suspect without consent from the suspect or a warrant.

The argument for warrantless cell phone searches had been that smart phones and other electronic devices were in the same category as wallets, briefcases, and vehicles. These types of property are currently subject to limited initial searches by law enforcement if there is probable cause to believe a crime has been committed, to ensure officer safety, and/or to prevent destruction of evidence. Otherwise, a search warrant or consent is needed to search these types of property.

The Supreme Court ruling indicates that the justices disagreed that cell phones and electronic devices fall into the same categories as other types of property. The ruling is seen by many as an endorsement of privacy rights in a time where our personal privacy and security is a greater and greater question.

While the ruling doesn’t mean that the government isn’t monitoring your email and cell phone usage, at least it means that law enforcement can’t search the contents of your phone or tablet without a warrant.

If you believe that a search was executed illegally on your property and you were criminally charges as a result, your rights may have been violated and those facts may greatly help your case. Contact a North Carolina criminal lawyer for more information as quickly as possible.

Can Officers Draw Blood in DWI cases?

If you’re stopped in a DWI, can an officer draw your blood even without your consent? What protections do you have against a warrantless blood draw in a DWI case?

In North Carolina (and most states), your refusal to submit to an Intox EC/IR II breathalyzer test will result in what’s called a “refusal.” That refusal, in most cases in North Carolina, triggers a one year suspension of your license, even if you are never convicted of the DWI. This is a consequence of North Carolina’s implied consent laws. (You do have a right to an administrative hearing to fight your refusal.)

But what if you refuse to submit to a breath test or blood draw? Can the police still draw your blood? The answer to this is, probably “yes.”

But unless there are exigent circumstances, the police must first get a search warrant from a magistrate or judge. That search warrant must be supported by sworn testimony or an affidavit laying out the specific facts that the officer believes create probable cause that a crime was committed that justifies the search – in this case, the blood draw.

The search warrant requirement comes from the Fourth Amendment to the United States Constitution.

In Schmerber v. California, the Supreme Court held that, in a driving under the influence case (DUI), where there is an emergency or exigent circumstances, the police officer can order the blood be drawn against the defendant’s will and without his consent and without a warrant:

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence,” Preston v. United States, 376 U. S. 364, 367. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.

Until now, police have needed either a warrant, consent, or emergency conditions in order to draw blood. But what if there is no emergency? Under current case law, if police pull blood without an emergency, warrant, or consent, the results of the blood can be suppressed at trial as a violation of the defendant’s Fourth Amendment rights.

However, the state of Missouri seeks to modify this rule, and in a new case, Missouri v. McNeely the state, the United States, MADD, and the National Association of District Attorneys, have argued that the United States Supreme Court should create a per se rule that would allow police to pull blood any time they believe they have probable cause of a DWI even if they never get a warrant.

The police, government, and states want this right, even though the process of getting a warrant is so streamlined these days that police can get warrants sometimes within 20 or 30 minutes of an arrest.

Stopping a Car – Are you Nervous?

Many Driving While Impaired offenses turn on the question of whether the police had the constitutional power to stop the car. That’s because once the car is stopped, most people make all kinds of admissions and display all kinds of clues that indicate that they may be impaired. Once those field sobriety tests are conducted, and statements are made about having had “only two beers” or coming from “The Alehouse,” a DWI case turns from bad to worse.

Consequently, your DWI lawyer will first look at the reason for the stop. Note that police have the right to pull a car over for any observed violation of traffic regulations or laws. And, pursuant to State v. Heien, police can even be mistaken about the law, so long as that belief is a good faith and honest mistake. In Heien, one of the defendant’s taillights was out. Even though North Carolina traffic law does not require both lights to be burning, the officer, not being up-to-date on the fine points of Chapter 20 of the NCGS, pulled the car over. The Court of Appeals in Heien ruled that the mistake of law meant that the stop was illegal. But the Supreme Court of North Carolina recently reversed, ruling that the mistake was honest and therefore did not create an unconstitutional stop.

But what if there’s been no specific traffic infraction or violation? Can police still pull over the vehicle?

The answer is “yes,” but here police need to rely upon reasonable and articulable suspicion – something more than a hunch – that a crime is being committed.

That standard is not a high standard. It is a far cry from “beyond a reasonable doubt.”

But, as the North Carolina Court of Appeals recently announced in State v. Canty, the State must show some reasonable, articulable fact pattern that justifies a stop of a car.

On April 15, 2011, Corporals Bass and Pope of the Sampson County Sheriff’s Office were stationed along I-40 in Sampson County. Corporal Bass later testified in court that he saw a green minivan slow from approximately 73 miles per hour to 65 mph. (The speed limit was 70 mph.) Corporal Pope’s and Corporal Bass’s official reports stated that the vehicle was going 65 mph before it slowed down.

If the car were truly going 65 mph, as the court believed it was, then there was no violation of the law. Therefore, the police would need to rely upon reasonable suspicion to stop the vehicle. Corporal Pope said his attention was drawn to the vehicle because he noted that it slowed down
even though it was not exceeding the posted speed limit. Corporal Pope described the reduction in speed as “dramatic” since the front of the vehicle dipped from the reduction in speed. Both officers testified that the two occupants of the vehicle stared straight ahead and appeared nervous.

At one point, Corporal Bass pulled the patrol car alongside of the vehicle and observed that the occupants would not make eye contact. While following the vehicle, the officers testified that the vehicle crossed the solid white fog line separating the driving lane from the shoulder. Corporal Bass switched on the patrol car’s lights only after the vehicle “completely crossed – went across the fog line.” Based on the reduction in speed and crossing the fog line, Corporal Bass initiated a traffic stop for “unsafe movement.”

Unfortunately for Corporal Bass and Pope, there was a video in the car that recorded the stop, including the vehicle’s movement prior to the stop. No where on the video did the car travel over the fog line.

Canty’s attorney failed to object to the introduction of evidence after the stop and failed to file a Motion to Suppress. Mr. Canty was arrested and ultimately convicted for felon in possession of firearms for the possession of guns found in the car after the stop.

He appealed.

The Court of Appeals held that the attorney’s failure to object or raise the issue in a Motion to Suppress before trial consituted ineffective assistance of counsel. It further held that Mr. Canty, who was a passenger in the car, has standing to challenge the stop, and adopted the federal rule in Brendlin v. California in this respect.

But did the officers have reasonable suspicion to stop the car in which Canty was riding?

The Court of Appeals reviewed some applicable case law:

State v. Otto, 726 S.E.2d 824 – “weaving ‘constantly and continuously’ over the course of three-quarters of a mile” around 11 p.m. is sufficient

State v. Peele, 196 N.C. App. 668 – holding one instance of weaving in one’s own lane coupled with an anonymous tip does not constitute reasonable suspicion, as a single instance of weaving is “conduct falling within the broad range of what can be described as normal driving behavior”

State v. Fields, 195 N.C. App. 740 – holding that weaving in one’s own lane standing alone does not provide reasonable suspicion to stop a motorist for driving under the influence of alcohol

State v. Jones, 96 N.C. App. 389 – weaving and driving twenty mph below speed limit is enough for reasonable suspicion

What about Canty’s or the driver’s nervousness? Nervousness has been considered a factor in prolonging the seizure after the traffic stop has been
initiated, but nervousness has not been held to be a factor in initiating the stop.

State v. Myles, 188 N.C. App. 42 – nervousness alone is not enough for reasonable suspicion.

State v. McClendon, 350 N.C. 630 – “Ordinary nervousness” does not amount to reasonable suspicion.

What about Canty’s or the driver’s lack of eye contact?

State v. Euceda-Valle, 182 N.C. App. 268 – Refusal to make eye contact has also been considered in determining whether there was reasonable suspicion to prolong the traffic stop but has not been considered in the context of initiating the traffic stop.

The Court of Appeals concluded in State v. Canty that nervousness, failure to make eye contact with law enforcement, and a relatively small reduction
in speed is “conduct falling within the broad range of what can be described as normal driving behavior.” 196 N.C. App. 668. Based on the totality of the circumstances, these officers lacked reasonable suspicion to initiate the traffic
stop that resulted in the search and seizure of the weapons in this case.

North Carolina Checkpoint Law

Raleigh DWI CheckpointsAs the holiday season approaches, drivers should plan to expect checkpoints. Checkpoints are increasingly common features of law enforcement strategy and are governed by particular rules.

Federal money subsidizes the use of checkpoints through state programs such as the Governor’s Highway Safety Program

The general rule is that checkpoints may not be established for general crime enforcement. That’s because the Fourth Amendment requires individualized and particularized suspicion. Just because you are a member of a class of people – a racial or ethnic group, or a group engaged in some legal activity such as driving – does not allow the police to simply stop and inquire, except under very narrow and specific circumstances.

The Supreme Court has held that checkpoints may only exist if they satisfy a specific programmatic purpose – City of Indianapolis v. Edmond, 531 US 32 (2000). Again: general crime enforcement is prohibited.

So, for instance, the Supreme Court of the United States has allowed brief, suspicionless seizures at fixed checkpoints designed to intercept illegal aliens, U.S. v. Martinez-Fuerte, 428 US 543 (1976), for sobriety checkpoints to stop people who may be driving while impaired, Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), to verify drivers’ licenses and vehicle registrations, Delaware v. Prouse, 440 U.S. 648 (1979), and to ask motorists for information about a recent hit-and-run accident. Illinois v. Lidster, 540 U.S. 419 (2004).

That’s all federal case law regarding checkpoints, including DWI-related checkpoints.

State law, of course, must respect federal constitutional guarantees given the incorporation of the Fourth Amendment through the Fourteenth Amendment against the states.

In State v. Rose, the North Carolina Court of Appeals decided whether sheriffs deputies in Onslow County had conducted a constitutional checkpoint in which a defendant was ultimately charged with felony possession with intent to sell and deliver marijuana. State v. Rose 612 SE 2d 336 (2005).

The defendant’s attorney usually receives a checkpoint plan or checkpoint program, a written document often “okayed” by a senior member of the department that purportedly spells out the specific programmatic purpose of the checkpoint. Both the state and federal supreme courts have held that a trial court must make an inquiry of the real purpose behind the checkpoint, and cannot simply rely on the State’s claim that the checkpoint served a valid purpose.

In addition, both courts have held that checkpoints cannot simply be validated because they are pursuing a programmatic purpose that is valid – for instance, DUI enforcement. In other words, if one of the many things you’re doing is DWI enforcement, the court has held that that legitimate purpose does not off-set the fact that you’ve established an illegal checkpoint.

For instance, in State v. Rose it was evident that, even though the State of North Carolina claimed that the checkpoint was for a valid programmatic purpose, the evidence at trial indicated that “at this particular checkpoint one officer would approach the driver to ask for the license and registration, while a second officer would scan the inside of the vehicle and walk around it. The testimony does not explain why a second officer was necessary to check licenses and registrations. In this case, it appears that the function of the second officer may have been to scan for possible criminal activity.”

In addition to a checkpoint being for a valid programmatic purpose, the Court must conduct a second inquiry as to the reasonableness with which the checkpoint is conducted.

In judging reasonableness, courts must look to “(1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.'” Lidster, 540 U.S. at 427 (quoting Brown, 443 U.S. at 51 (1979).

And here’s the crucial test from State v. Rose: “As Chief Justice Burger wrote in Brown—a decision reaffirmed and applied by the Supreme Court in 2004 in Lidster—a checkpoint “must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown, 443 U.S. at 51. There must be orderly procedures to limit the “unfettered discretion of officers in the field” in order to avoid the “arbitrary invasion” of motorists’ privacy interests. Id. The Supreme Court has stressed that “standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.” Prouse, 440 U.S. at 661.

It’s important to note that the inquiry about whether a checkpoint is valid or constitutional is separate and distinct about whether the individual officer behaved in an appropriate manner.

If the checkpoint is invalid, then the seizure is invalid.

In a typical DWI scenario, a defendant challenges the checkpoint, arguing that the checkpoint plan does not embody explicit, neutral limitations on the condcut of the individual officers. The prosecutor argues in rebuttal that, essentially, the illegal conduct – perhaps the impaired driving – was detected by an officer who did not behave beyond the scope of the limitations.

Frankly, the prosecutor’s response does not answer the state or federal appellate courts’ concerns. Appellate courts are concerned about checkpoints themselves that go beyond the narrow, limited criteria established in Prouse, City of Indianapolis, and Sitz.

If the checkpoint plan allows discretion to the officers, then the checkpoint plan is invalid and the checkpoint itself is unconstitutional.

If the checkpoint plan limits discretion, but officers act beyond the scope of the checkpoint plan, then the checkpoint itself is unconstitutional.

But a checkpoint is never valid if the checkpoint plan is overly broad… the defect in the checkpoint plan invalidates the entire operation, even if officers themselves behave in a restrained way.

Drawing Blood in a DWI Hospital Case

Shea Denning at the School of Government’s Criminal Law Blog has an interesting post on whether medical professionals can be compelled to draw blood by threat of criminal prosecution.

NCGS 20-139.1 establishes the various ways that police can collect a chemical analysis from someone charged in an impaired driving offense. It requires medical professionals – pursuant to certain guidelines – to collect blood and turn that blood over to the police officer if requested by the police officer.

The requirement, however, has no penalty in the statute. So it’s not clear, if the doctor or nurse refuses, what can be done.

In 99 percent of the cases this is not a problem: most hospital professionals cooperate with police. But a police officer last month handcuffed a nurse in Johnston County when the nurse refused to pull a blood draw for the officer. No charges were brought against the nurse, and the police were unable to get probable cause from the magistrate, leading to no prosecution.

As Denning notes, there’s a colorable argument that the medical professional can be charged with Resist, Delay, Obstruct for resisting the officer in his lawful exercise of his duties.

Writs of Assistance: The Odor of Marijuana

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment had a specific historical context: the colonists, and later the Founders of the American Republic, were worried about General Warrants, also known as Writs of Assistance. These were all-purpose documents that permitted soldiers and law enforcement of the British Empire to search whereever and whenever they wanted for contraband, including papers, documents, and other materials that proved sedition or treason.

But, as writer Julian Sanchez notes, complaints about General Warrants also had a cultural context, as police forces, such as they were, were generally comprised of poorly trained or entirely untrained people drawn from lower social orders. So the argument that homes should not be arbitrarily invaded by the “low lif’d” was not only a principled defense of individual liberty, but also a complaint about poor, unkempt and untrained bullies rummaging through a home.

The dramatic and catastrophic erosion of Fourth Amendment protections – largely as a result of the War on Drugs – has occurred in the context of the professionalization and militarization of police forces. Today’s officer is more highly trained, particularly when it comes to the use of various types of force, and, thanks to civil asset forfeiture, better armed.

As Sanchez notes:

Perhaps it’s no surprise, then, that courts often seem to bend over backwards looking for ways to accommodate police and other government officials, explicitly assuming—utterly contrary to the spirit of the Fourth Amendment—that these upstanding professionals can and must be routinely trusted with substantial individual discretion over who, how, and when to search. We certainly don’t need a return to the hostile view that government investigators are “despicable wretches”—but it would be nice to see more recognition that they are, after all, “common fellows” whose intrusions on the privacy and dignity of their fellow citizens require judicial supervision, whether that citizen is an affluent merchant or “the poorest man… in his cottage,” and regardless of whether the investigator is a “menial servant” or a clean-cut middle-class professional.

While don’t quite have General Warrants today, we do have something very close – call it the Odor of Marijuana Warrant, which creates probable cause, according to the North Carolina Appellate Courts, to search virtually anywhere in a home or vehicle.

Blood and Raleigh DWI Cases

When someone is arrested in North Carolina for a DWI, the state typically will require that the person undergo a chemical analysis. This analysis most often requires the person to blow into a machine called the Intox EC/IR II, a machine manufactured by Intoximeters, Inc.

If the person refuses to blow or the person is unconscious and unable to blow, blood may be taken from the individual. A person may also voluntarily consent to a blood draw, although the blood draw is seldom offered (and can never be demanded) as an option in a DWI case, unless police suspect that the person is under the influence of an impairing substance other than alcohol – for instance, prescribed or illegal drugs.

A blood draw can be accomplished by a warrant, without a warrant (through some exception, usually an “emergency” as defined in case law), or through the implied consent law – the same law that permits officers in North Carolina to request a breath sample, and the same law that will impose a civil revocation if the person willfully refuses to blow.

If the blood draw is accomplished via the North Carolina implied consent law, then NCGS 20-16.2 and NCGS 20-139.1 establishes the various requirements by which blood can be drawn, and the punishments that can be imposed if someone willfully refuses. Specifically, the person must be informed verbally and in writing of his implied consent rights (although, interestingly, North Carolina courts have not required that the person actually understand these rights), be afforded the opportunity for a witness, and be afforded a waiting period of either 15 or 30 minutes (depending on whether someone has decided to call for a witness).

If someone refuses to blow into the Intox machine or refuses to provide blood voluntarily when requested, the charging officer or other witnessing officers may go to a magistrate and swear out a Search Warrant.

A search warrant must be based upon probable cause that the person was driving while impaired. Probable cause is a fairly low standard, requiring that an officer, acting in good faith, had reason to believe, based on specific articulable facts, that the suspect was more likely than not committing a crime and that evidence of that crime can be found in the blood. Bad driving and the odor of alcohol may be sufficient to establish probable cause, provided that the driving is bad enough. The odor of alcohol plus poor performance on field sobriety tests may be sufficient, depending on how the standardized field sobriety tests were conducted.

NCGS 20-139.1 requires that the blood be drawn by a nurse, doctor, or other medical professional. Under the Confrontation Clause, the Defendant has the right to cross-examine the chemical analyst who conducted the examination of the blood – see Melendez-Diaz and related cases. The State may not send a surrogate or supervisor in place of the chemical analyst – see Bullcoming. But your attorney must object prior to trial to the introduction of such evidence by affidavit. If the state provides an affidavit or report, and your attorney fails to object, the trial judge can permit the State to introduce the evidence merely by showing the judge (in Wake County District Court) or the jury (in Wake County Superior Court) the affidavit with the reported BAC number.

In order to introduce the blood results at trial through a witness, the State must establish foundation as to the chain of evidence and the authenticity of the results. One issue is whether the blood was drawn by a nurse, doctor, or other medical practitioner. The State rarely calls that person to court, but will attempt to establish that a qualified person drew the blood by asking the officer who was there about the dress and nametag of the individual drawing blood.

I’ve argued that testimony about the nametag or other identification supplied to the officer that night is hearsay – an out of court statement offered for the truth of the matter asserted. The Wake County assistant district attorney usually argues that State v. Hinchman, 192 N.C.App. 657 (2008), applies. However, Hinchman, which upheld the introduction of testimony about the nurse’s qualifications by the arresting officer, relied upon the pre-2006 version of NCGS 20-139.1 which included within it a hearsay exception. That hearsay exception was removed in 2006, making Hinchman arguably bad law under the current statute.

Next, I recently witnessed a blood draw, and neither of the two people who drew the blood had name tags. They each had to be asked their names. And neither provided documentation to the officers to show that they were licensed nurses.

Blood is collected through the use of blood kits. The kits come sealed, with two vacutainers, needle, and instructions and a swab. An officer will usually unpackage the material, have the person sign a form contained in the blood kit, and fill out other chain of custody documentation. A tourniquet is used, blood is drawn, and then the vacuatainer must be inverted five times (according to instructions in the kit) to ensure that the blood mixes with two chemicals – a preservative and anti-coagulant – that are in the vacutainers as they were shipped from the manufacturer.

The blood vacutainers, which contain two chemicals – a preservative and an anti-coagulant – and the blood, is sealed, packaged, and sent off to a lab for testing. There are expiration dates attached to the blood kits that are carried by officers, or on hand at the Wake County Detention Center.

Testing has traditionally been done by the State Bureau of Investigation which has a crime lab. In the past year, however, the crime lab has faced budget cuts and staff shortages that have created a backlog of cases. Some Raleigh DWI cases are several years old, and unresolved because the blood results have not been returned by the lab to the North Carolina prosecutor (or the defense).

Unlike many regions of North Carolina, Wake County has its own local crime and investigation bureau, called the City-County Bureau of Identification (CCBI). The CCBI has now been equipped with the various tools needed to conduct analyses of blood. Rumor has it that CCBI is turning around blood results within a week of the offense date.

Blood is analyzed using a machine called a Gas Chromatograph and Mass Spectrometer. The machine was originally developed in the 1950s.

The gas chromatograph utilizes a capillary column which depends on the column’s dimensions (length, diameter, film thickness) as well as the phase properties (e.g. 5% phenyl polysiloxane). The difference in the chemical properties between different molecules in a mixture will separate the molecules as the sample travels the length of the column. The molecules are retained by the column and then elute (come off of) from the column at different times (called the retention time), and this allows the mass spectrometer downstream to capture, ionize, accelerate, deflect, and detect the ionized molecules separately. The mass spectrometer does this by breaking each molecule into ionized fragments and detecting these fragments using their mass to charge ratio.

Here is an excellent tutorial on the GC/MS. And here is an excellent cross-examination of a chemical analyst from an Illinois DUI lawyer in a Du Page County court.

Reasonable Suspicion, DWIs, and Speeding

Raleigh DWI LawyerReasonable suspicion is the standard by which an officer can effect a stop of a vehicle. It is the lowest standard in the criminal system.

Reasonable suspicion requires that “[t]he stop… be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by [the officer’s] experience and training.” State v. Watkins, 337 N.C. 437, 441 (1994). Reasonable suspicion is a less rigorous standard than probable cause. It merely requires “minimal level of objective justification, something more than an ‘unparticularized suspicion or hunch[,]'” State v. Steen, 352 N.C. 227, 239 (2000).

In short, the State of North Carolina must clear this hurdle before it can offer evidence at trial collected after the stop was initiated.

Note that the reasonable suspicion standard applies to the stop of the vehicle. If the vehicle was stopped for speeding, the officer does not need to prove beyond all reasonable doubt that the vehicle was speeding before stopping the car. The officer merely needs to have some reasonable suspicion that the car was speeding in order to the stop the vehicle.

In addition, North Carolina case law and statutes give a great deal of deference to a police officer’s visual estimation of the speed of a car in determining whether the estimate is more than a hunch. State v. Barnhill, 601 SE 2d 215 (2004) Indeed, under North Carolina law, an officer need not be admitted as an expert in order to estimate the speed of a vehicle. A layperson can estimate the speed of a car. State v. Wilson, 155 N.C.App. 89 (2002).

Obviously, given the case law, the State of North Carolina is frequently able to established reasonable suspicion. It doesn’t take much, and the officer’s opinion is usually sufficient.

But there are times when the state can’t establish reasonable suspicion. When that happens, the state is barred from admitting evidence from after the stop. The DWI charge is dismissed.

That’s because reasonable suspicion must be based on specific, articulable facts. It cannot be a hunch, or a guess.

In speeding cases that lead to Driving While Impaired charges, this occurs when the officer’s testimony is so weak that it’s clear the officer was relying on a hunch.

Frequently officers will testify that they estimated a speed based on their “training and experience.” But upon cross-examination by a Raleigh criminal lawyer, it becomes clear that the training and experience is illusory. The officer may for instance not know the distance over which the car traveled, or the time in which it traveled. The officer may, upon a vigorous cross-examination, be unable to testify about what particular experience or training he has in estimating speeds. Vague appeals to “training and experience” are not sufficient.

An excellent example of completely inadequate testimony regarding speed estimation is available in U.S. v. Sowards, 4th Cir. (2012), where the trooper could not tell how many feet were in a mile or even how many feet were in a yard, and provided no factual basis other than saying that he estimated the defendant was speeding.

The reason this is important is because reasonable suspicion, again, can never be a hunch. “Reasonable, articulable suspicion” is the standard. And “articulable” means that the officer must be able to articulate (or explain) how he reached the conclusion.

Conclusory statements such as “based on my training and experience, the defendant was speeding” are never enough. How did the officer reach that conclusion. Did he time the car over a certain distance? Did he hear squealing of the tires? Did he see smoke coming out from behind the car? Over what distance did he say the car was accelerating? How quickly did the car stop? Did the car jerk to a stop? Did the car spin out? How quickly did the car pass certain objects? Did the officer use radar?

These are all issues that can be raised by your Raleigh DWI Lawyer. If your lawyer can show that the officer lacked reasonable suspicion, you may be able to win your Raleigh DWI outright.

Technology, the Fourth Amendment, and the Drug War

The United States Supreme Court’s jurisprudence on the Fourth Amendment is hopelessly naive, incoherent, and stupefying. Chalk that up to the Drug War, which for forty years has been a tool by both drug warriors and government officials to expand the government’s power to conduct searches.

Let’s take one example: Kyllo v. US, 533 US 27 (2001).

The Department of the Interior used a thermal imaging device outside Danny Lee Kyllo’s home which could not penetrate the walls or windows to reveal conversations or human movement, but could only record heat emitted from the home. The police were looking for evidence of a hydroponic marijuana grow operation, indicative of marijuana drug trafficking.

The observations of heat emanating from a part of the house formed the sole basis of the probable cause that gave police the authority to then raid the house pursuant to a search warrant.

The Court held: “Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant.”

In other words, the Court held that the thermal surveillance was itself a search that had been conducted without a warrant. The search was presumptively unreasonable given its warrantless nature, and the Court ultimately held that it was in fact illegal because the equipment used was not readily available to the general public.

In a second, related example: Florida v. Riley, 488 U.S. 445 (1989).

A Florida sheriff received a tip that a man was growing marijuana behind his mobile home. Unable to see in the greenhouse, the sheriff ordered a helicopter to fly over the property at a relatively low altitude. The sheriff could observe through his own observations – two panels were missing on the top of the greenhouse allowing him a view into the greenhouse from above – that marijuana was indeed growing inside. A warrant was obtained, and the man was charged with having a grow operation.

(Ignore, for a moment, whether the sheriff could really determine at any significant height whether in fact the plants were marijuana.)

In both cases, the Supreme Court held that the reasonableness of the search in the context of existing technologies – whether the general public would have access to thermal imaging equipment or whether the general public would expect a low-flying aircraft.

In 1990 or 2000, the idea that the general public would have access to these or similar technologies was far-fetched. Not so today.

Drone aircraft have been used increasingly in Iraq and Afghanistan to conduct assassination operations by the U.S. Government. Drone aircraft are also an increasingly common in civilian settings. Police departments – through federal grants – are getting access to the equipment. The University of North Dakota is evening offering a major in how to pilot drone aircraft.

Hobbyist groups allow regular people to acquire and fly drones.

Criminals have even gotten into the act, attempting to smuggle cell phones into a Brazilian prison through the use of an unmanned (and untraceable) vehicle.

I predict that over time, the Supreme Court will use these developments as an reason (excuse?) to grant the government even greater surveillance powers.

All in the name of keeping the country pot-free. Even though there is broad support for marijuana legalization.

And even at least 10 percent of Americans regularly smoke marijuana, and roughly 40 percent of all Americans have used marijuana in their lifetimes. And that marijuana has few addictive properties, and that marijuana is as much a gateway to harsher drugs and tobacco or alcohol are. And on and on.



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  • * All Fields Required