Sources of Criminal Law

Statutes

Common Law

City and County Ordinances

Constitutional Restrictions on Enactment of Criminal Laws

Constitutional and Statutory Restrictions on an Officer’s Authority

Constitutional Restrictions

United States Constitution

North Carolina Constitution

Statutory Restrictions

Criminal Pretrial and Trial Procedure

Misdemeanors and Infractions

Felonies

Appellate Review

Introduction

Jurisdiction

Limits on Law Enforcement Officers’ Jurisdiction

Territorial Jurisdiction

State law enforcement officers

Local alcohol beverage control (ABC) officers

Sheriffs, deputy sheriffs, and county police officers

City law enforcement officers

Company police officers

The University of North Carolina campus law enforcement officers

Community college campus law enforcement officers

Private nonprofit college campus police officers

North Carolina General Assembly special police

Expanded Territorial Jurisdiction for DWI-Related Offenses

Arrest After Continuous Flight (Hot Pursuit)

Hot pursuit within the state

Hot pursuit outside the state

Subject-Matter Jurisdiction

State Highway Patrol officers

State Bureau of Investigation (SBI) agents

Alcohol law enforcement agents

Officers who specialize in enforcing motor vehicle laws

Wildlife law enforcement officers

Marine fisheries enforcement officers

Sheriffs, deputy sheriffs, and county police officers

Local alcohol beverage control (ABC) officers

City law enforcement officers

Company police officers

Campus law enforcement officers

Probation and parole officers

Special Jurisdictional Issues

Violations of federal laws

Immigration enforcement by North Carolina law enforcement officers

Desertion and away without leave (AWOL)

Areas controlled by the federal government or Eastern Cherokee Indian Reservation (Qualla Boundary)

Offenses that occur in other states (extradition)

Foreign diplomats

Federal officers and North Carolina’s criminal laws

Expanded Jurisdiction through Cooperating Law Enforcement Agencies

Expanded Jurisdiction through Emergency Management Assistance Compact

Private Person’s Authority to Detain

Legal Standards

Introduction

Objective Standard

Officer’s Objectively Reasonable Mistake of Fact or Law in Determining Reasonable Suspicion or Probable Cause

Investigative Stop or Arrest

Determination Made at the Time of the Arrest or Investigative Stop

The Authority to Make an Investigative Stop: Reasonable Suspicion

Definition

Determination of Reasonable Suspicion

Hearsay Evidence

Collective Knowledge of Officers

Appellate Court Cases on Reasonable Suspicion

The Authority to Arrest: Probable Cause

Definition

Determination of Probable Cause with or without an Arrest Warrant

Hearsay Evidence

Collective Knowledge of Officers

Appellate Court Cases on Probable Cause

Pretextual Arrest, Investigative Stop, or Search

Mandatory Duty to Arrest for Domestic Violence Offense

Special Aspects of Stopping Authority

Investigative Stop Based on Reasonable Suspicion

Length of Time Allowed for an Investigative Stop

Officer’s interaction with suspect after investigative stop is completed

United States Supreme Court case and North Carolina appellate court cases on delay after completed traffic stop

Scope of Investigative Stop: Investigative Techniques

Ordering driver and passengers out of vehicle

Using force

Questioning

Moving or handcuffing a suspect for safety or security reasons

Using identification procedures

Using drug dog

Checking Division of Criminal Information (DCI) or other information source

Checking driver’s license and other information during a vehicle traffic stop

Frisk after an investigative stop

Stop without Reasonable Suspicion

Service of Legal Process

Execution of a Search Warrant

Public Emergencies

Stop of Vehicle under Community-Caretaking Doctrine

Motor Vehicle Checkpoints, Including Driver’s License and DWI Checkpoints

Constitutional background

North Carolina statute authorizing motor vehicle checkpoints

Information-Seeking Checkpoints

Wildlife and Marine Fisheries Officers

Custody without Probable Cause

The Arrest Warrant and Other Criminal Process

Criminal Process

Arrest Warrant

Paperwork

Issuance and content

Validity of warrant

Criminal Summons

Citation

Order for Arrest

Restriction on Obscenity Offenses

Arrest without a Warrant or Order for Arrest

Warrant or Order for Arrest Has Been Issued

Felony

Misdemeanor

General Rules

“In [the officer’s] presence”

“Will not be apprehended unless immediately arrested”

“May cause physical injury to himself [or herself] or others”

“May damage property”

Arrest of a Resident of a Reciprocal State

Delay in Making a Warrantless Misdemeanor Arrest

Violation of Pretrial Release Order

Escape from Arrest

Probation, Parole, or Post-Release Supervision Violation

Taking Custody of Juveniles for Delinquent Acts and Other Matters

The Arrest Procedure

Use of Force

Generally

Resistance or Flight from Arrest

Escape of Convicted Felon from Custody

Assistance from Private People

Notice of Authority

Before Stopping a Vehicle

When an Arrest Is Made

Before Entering a Dwelling

Entering Premises to Arrest

Entering Defendant’s Home or Other Place of Residence without Consent or Exigent Circumstances

Entering a Third Party’s Home without Consent or Exigent Circumstances

Consent to Enter Premises

Exigent Circumstances That Justify Entering Premises

Summary

Entering Premises to Accompany the Arrestee

Entering Premises with News Media

Use of Force When Entering Premises to Arrest

Completion of Custody of the Arrestee

Searching and Investigating Incident to Arrest or Stop

Securing the Arrestee and Dealing with Companions of the Arrestee

Detention of Defendant Arrested for Violation of Order Limiting Freedom of Movement Involving Terrorist Attack or Isolation Order for Health Reasons

Care of Minor Children Present When Adult Supervising Them Is Arrested

Protecting the Unconscious Arrestee

Obtaining an Interpreter for a Deaf Person

Informing the Arrestee of the Charge

Informing a Foreign National of the Right to Have Consular Official Notified

Taking Fingerprints and Photographs

Adults

Juveniles

Taking DNA Samples for Certain Offenses

Taking the Arrestee to a Judicial Official

Conducting an Initial Appearance

Issuing a Magistrate’s Order When the Arrest Is without a Warrant

Delaying the Initial Appearance of a Drunk or Disruptive Arrestee

Considering Pretrial Release Conditions

Permitting the Arrestee to Communicate with Counsel and Friends

Informing a Minor’s Parent and School Principal of a Criminal Charge

Notifying a Minor’s Parent of a Criminal Charge

Notifying the School Principal of a Felony Charge

Completing Custody of a Person Arrested in Another State

Procedure for Charging and Processing People for Infractions

Jurisdiction

Territorial Jurisdiction

Generally

Arrest after Continuous Flight (Hot Pursuit)

Private Person’s Authority to Detain

The Authority to Make an Investigative Stop: Reasonable Suspicion

Determination of Reasonable Suspicion

Generally

DWI Stops

Non-DWI Traffic Stops

Airport Investigative Stops

School Search and Seizure Cases

Special Aspects of Stopping Authority

Length of Time Allowed for an Investigative Stop

Scope of an Investigative Stop

Ordering People Out of a Vehicle after a Lawful Stop

Taking a Person to a Law Enforcement Facility

Using Weapons or Handcuffs

When an Officer’s Interaction with a Person Is a Seizure under the Fourth Amendment

The Officer’s Personal Knowledge of Facts Constituting “Reasonable Suspicion”

The Authority to Make an Investigative Stop or Take Other Action without Reasonable Suspicion

Detaining People Present When a Search Warrant Is Executed or Is Being Sought

Ordering People Out of a Vehicle after a Lawful Stop

Conducting Impaired-Driving and Driver’s
License Checkpoints

Conducting Information-Seeking Checkpoints

Stopping Vehicle under Community-Caretaking Doctrine

Stopping Vehicle for Safety Reason

Wildlife Law Enforcement Stopping Authority

Pretextual Stop or Arrest

The Authority to Arrest: Probable Cause

Determination of Probable Cause

Collective Knowledge of All Officers

Objective Standard in Determining Reasonable Suspicion, Probable Cause, or the Fact of Arrest

The Arrest Warrant and Other Criminal Process

Arrest Warrants

Validity of Warrant

Service of Warrant

Arrest without a Warrant for a Felony

Arrest without a Warrant for a Misdemeanor

In the Officer’s Presence

Outside the Officer’s Presence: The Defendant “Will Not Be Apprehended Unless Immediately Arrested”

“May Cause Physical Injury to Himself [or Herself] or Others”

“May Damage Property”

The Arrest Procedure

Use of Force, Including Deadly Force

The Right to Resist an Illegal Arrest

Notice of Authority

When an Arrest Is Made

Before Entering a Dwelling

Entrance onto Premises to Arrest

Generally

Exigent Circumstances

Entrance onto Premises to Accompany the Arrestee

Completion of Custody: Taking the Arrestee to a Magistrate without Unnecessary Delay

Bringing News Media during Execution of Warrant

Introduction

Observations and Actions That May Not Implicate Fourth Amendment Rights

Abandoned Property and Garbage

Abandoned Property

Real property

Personal property

Garbage

Areas outside the Home: Curtilage and Open Fields

The Curtilage

Open Fields and Woods

Common Entranceway to Residence

Plain-View Sensory Perceptions (Observation, Smell, Sound, Touch, and Taste)

Observation into a Home from a Public Place

Observation into a Car

Observation in a Private Place after Legitimate Access

Use of Special Devices or Animals

Binoculars, telescopes, and flashlights

Thermal imagers

Aircraft and drones

GPS tracking devices

Dogs

Wiretapping, Eavesdropping, Access to Stored Electronic Communications, and Related Issues

Overview

Wiretapping and Eavesdropping Law Exclusions

Intercepting Phone Conversations

Intercepting Phone Conversations—Generally

Intercepting Phone Conversations of Prisoners or Inmates

Searching Cell Phone Incident to Arrest

Intercepting Oral Communications

Using Throw Phones or Robots with Microphones during Emergency

Silent Video Surveillance

Access to Stored Electronic Communications (Email and Text Messages) and Related Information

Access to Stored Messages in Voice Mailbox

Pen Registers and Trap-and-Trace Devices

Access to Real-Time (Prospective) or Historical Cell-Site Location Information

Phone Records

Bank Records

Records in Federally Assisted Alcohol or Substance Abuse Program

Documents in Possession of News Media, Writers, and Publishers

Search and Seizure by Valid Consent

People Who Are Entitled to Give Valid Consent

Spouses

Roommates

Parents and Children

Landlords and Tenants

Guests in a Home

Employers and Employees

Owners and Custodians of Property

School Administrators and Students

University Officials and Students

Officer’s Reasonable Mistake of Fact about the Validity of a Person’s Authority to Consent

Content of a Valid Consent

Expression of Willingness for a Search to Occur

Voluntariness of the Expression

Warning before Asking for Consent

Miranda Assertion of Right to Counsel and Officer’s Later Request for Consent

Proof of the Validity of the Consent

Scope of the Search with a Valid Consent

Consent Searches of Computers and Other Electronic Devices

Completion of the Inventory Form after a Search with Consent

Invasion of Privacy by a Search or Seizure with Sufficient Reason

Evidence That May Be Searched for and Seized

Search and Seizure of Evidence with Probable Cause

Hearsay Evidence

Objective Standard

Advantages of a Search Warrant

Search and Seizure of Vehicles with Probable Cause

Seizure of a Vehicle Subject to Forfeiture

Seizure of a Vehicle as Evidence of a Crime or an Instrument of a Crime

Search and Seizure of Containers with Probable Cause

Exigent Circumstances to Enter Home with Probable Cause to Search for Evidence

Search of a Person for Evidence with Probable Cause Probable cause to arrest and to search

Obtaining a blood sample when an impaired driver refuses a chemical test or is unconscious

Searching for evidence on or within a person’s body

Search and Seizure of Obscene Materials with Probable Cause

Reexamination or Testing of Evidence in State’s Possession; Second-Look Doctrine

Search and Seizure of Evidence with Reasonable Suspicion

Seizing Luggage or Other Containers of Personal Effects for Brief Investigation

Detaining a Person Briefly for a Nontestimonial Identification Procedure

Search and Seizure to Protect Officers, Other People, or Property

Search Incident to Arrest

Need for a valid custodial arrest

Closeness in time and place to the arrest

Scope of search incident to arrest—generally

Scope of a search incident to the arrest of an occupant of a vehicle

Search of cell phone incident to arrest

Strip searches and body-cavity searches

Surgical intrusion for evidence

Inventory of an Arrestee’s Possessions before the Arrestee Enters a Detention Facility

Frisk of a Person for Weapons

Determining when a person may be frisked

Conducting a frisk

Discovering evidence during a frisk; plain-touch (-feel) doctrine

Frisking during the execution of a search warrant

Protective Search of a Vehicle

Search of a vehicle for a weapon when no arrest is made (car frisk)

Search of a vehicle for a weapon when there is a danger to the public: community-caretaking function

Search of a vehicle to determine ownership

Entry or Search of a Home to Render Emergency Assistance or for Self-Protection

Entering a home to render emergency assistance to injured occupant or to protect occupant from imminent injury

Entering a home to seize weapons for self-protection

Protective sweep when officer is in a home to make an arrest

Impoundment and Inventory of Vehicles

Impounding vehicles

Inventorying vehicles and containers within vehicles

Abusing impoundment and inventory search authority

Search of a Crime Scene

Search of a Fire Scene

Inspection of Mail and Mail Covers

Mail

Mail Covers

Special Search Authority during Emergencies and Riots

Special Frisk Authority

Frisk of people close to existing riots

Frisk of curfew violators

Special Search Warrants to Search Vehicles

What Is a Search and Seizure and What Evidence May Be Searched for and Seized

Definition of a Search

Definition of a Seizure

Evidence That May Be Searched for and Seized

Observations and Actions That May Not Implicate Fourth Amendment Rights

Private Search or Seizure

Abandoned Property and Garbage

Areas outside the Home: Curtilage and Open Fields

Plain View (Sensory Perception)

GPS and Other Tracking Devices

Historical Cell-Site Information

Dogs

Thermal Imagers

Recording of Conversations When One Party Consents

Obtaining a Customer’s Bank Records

Prison or Jail Cell, Mail, and Telephone Calls

Use of Lawfully Taken Blood Sample in Unrelated Investigation

Search and Seizure by Valid Consent

Voluntariness

Generally

Officer’s Statement about a Search Warrant

Validity of Nonverbal Consent

Scope of the Search

Delay in Conducting a Consent Search

Airport Cases

Undercover Officers and Informants

Consent to Come to a Law Enforcement Facility

Ordering Passenger out of Vehicle When Driver Gives Consent to Search

Special Relationships

Landlord-Tenant and Hotel-Guest

Spouses and Other Shared Relationships

Miscellaneous

Reasonable Belief That Person Is Entitled to Give Consent

Admissibility of Evidence of Refusal to Consent

Requesting Consent to Search after Defendant Asserts Miranda Right to Silence or Right to Counsel

Consent Given during Investigative Stop

Whether Consent Search Is Tainted by Prior Illegality

Search and Seizure of Evidence with Probable Cause, Reasonable Suspicion, or Other Justification

Vehicles, Including Containers within Vehicles

Generally

Probable Cause to Search a Vehicle

Seizure of a Vehicle Subject to Forfeiture

Search of a Vehicle for Its Identification

Containers (Other Than in Vehicles)

Probable Cause

Reasonable Suspicion

Probable Cause to Search a Person

Warrantless Entry with Exigent Circumstances to Search a Place for Evidence or Weapons

Warrantless Entry for a Nonsearch Purpose

Strip Search of a Person

Search and Seizure of Evidence from a Person’s Body

Second-Look Doctrine

Search and Seizure of Obscene Materials

Objective Standard in Determining Probable Cause or Reasonable Suspicion

Search of a Government Employee’s Office or Electronic Devices

Court Order to Obtain Corporate Records

Probation or Parole Officer’s Search of Home

Wiretapping, Eavesdropping, Digital Evidence, and Video Surveillance

Protective Searches

Scope of Search Incident to Arrest

Generally

Arrest of an Occupant of a Vehicle

Protective Sweep of Premises

Frisk

Generally

Plain-Feel or -Touch Doctrine

Inventory

Vehicles

Personal Effects

Entering Premises for Public-Safety Reasons

Protection of the Public from Dangerous Weapons: The Community-Caretaking Function

Search of a Crime Scene

Search of a Fire Scene

Collective Knowledge of Officers

Motions to Suppress, Suppression Hearings, and Exclusionary Rules

Introduction

Advantages of a Search Warrant

Consequences of an Unlawful Search or Seizure

Generally

Exclusionary Rules

Good-faith exception under the United States Constitution

Exclusionary rules under the North Carolina Constitution

North Carolina statutory exclusionary rule

Defendant’s Standing to Exclude Evidence

Procedure for Excluding Evidence: Suppression Motions and Hearings

The Issuing Official

Who May Issue a Search Warrant

Examination of the Applicant

Court Review of a Search Warrant’s Legality

The Form and Content of the Application and Warrant

Preparation of the Search Warrant Worksheet

Description of the Property to Be Seized

Stolen Goods

Weapons and Other Instruments Used during Crimes

General Evidence

Documents Associated with White-Collar Crimes

Evidence of Ownership or Possession of Premises

Evidence at a Crime Scene

Evidence in Computers and Other Electronic Devices

Evidence at the Scene of a Fire

Illegal Drugs and Drug-Related Items

Obscene Materials, Including Child Pornography

Description of the Person to Be Arrested

Relation of the Property to a Crime

Description of the Premises, the Person to Be Searched, or the Vehicle

The Premises

Vehicles on the Premises

Outbuildings on the Premises

Multiple Occupants in the Structure(s)

Multiple Structures on Separate Property

The Person

The Vehicle

Other Places or Items to Be Searched

Statement of Facts Showing Probable Cause to Search

Definition

Sources of Information to Establish Probable Cause

Affiant’s Personal Observations

Generally

Unconstitutionally obtained or false information

Affiant’s Use of Hearsay Information

Information from other officers

Information from victims, witnesses, and other citizen-informants

Information from confidential informants

Information from records

Timeliness or Staleness of Information

The Connection between a Crime, the Evidence to Be Seized, and the Place to Be Searched

Future Events: Anticipatory Search Warrants

Restrictions on Issuing Search Warrants for Obscenity Offenses

Examples of Statements of Probable Cause

Execution and Return of the Search Warrant

Jurisdiction to Execute a Search Warrant

Time of Execution

Notice and Entry

Scope of the Search

Outbuildings

Where Officers May Search

Assistance from Private People and Dogs

News Media Presence during Search

Seizure of Items in Plain View

Vehicles on the Premises

Length of Time to Search

People on the Premises

Public Place

Nonpublic Place

Detaining and frisking492

Searching people present for evidence493

Inventory of Seized Property

Return of the Search Warrant

Sealing Search Warrant from Public Inspection

Disposition of Seized Property Pending Trial

Search Warrants in Areas of Riot or State of Emergency

Special Frisk Authority

Frisking People Close to Existing Riots

Frisking Curfew Violators

Special Search Warrants to Search Vehicles

Magistrate’s Order to Seize Cruelly Treated Animal

Authority for Issuing Administrative Inspection Warrants

Issuing an Administrative Inspection Warrant

The Judicial Official’s Territorial Jurisdiction

Warrant Forms

Completing Warrant Forms

Periodic Inspection Warrant

Warrant Based on a Particular Condition or Activity

Generally

Inspection of a fire scene

Execution of an Administrative Inspection Warrant

Emergency Inspection without a Warrant

Warrantless Inspections of Pervasively Regulated Industries

Introduction

Authority to Conduct Nontestimonial Identification Procedures

Application for the Order and Issuance of the Order; Adult and Juvenile Suspect Forms

Service of the Order and Modification of the Order

The Nontestimonial Identification Procedure

Criminal and Civil Contempt

Return of the Order and the Inventory of Results

Defendant’s Request for a Nontestimonial Identification Order

Other Lawful Identification Procedures

Juveniles and Nontestimonial Identification Procedures

Blood Samples

Juvenile’s Age

Showup Identification Conducted Shortly after Crime without Nontestimonial Identification Order

Transfer of Juvenile’s Case to Adult Court

Probable Cause

Generally

Timeliness or Staleness of Information

Information from a Confidential Informant

Informant’s Credibility or the Reliability of the Informant’s Information

Informant’s Basis of Knowledge

Information from a Citizen Informant

Probable Cause for Premises to Be Searched

Probable Cause for Property to Be Seized

Probable Cause for Body-Cavity Search

Objective Standard in Considering an Officer’s Information

Anticipatory Search Warrants

Descriptions in a Search Warrant

Description of the Premises to Be Searched

Description of the Property to Be Seized

Description Incorporated by Reference to Affidavit

Search Warrants for Computers

Search Warrants for Obscene Materials

A Neutral and Detached Magistrate

Executing a Search Warrant

Notice and Entry

People Present during the Execution of a Search Warrant

Detaining People Present

Searching People Present

Frisking People Present

Strip Search of Person Named in Search Warrant to Be Searched

Territorial Jurisdiction to Execute a Search Warrant

Motive in Executing a Search Warrant

Second Entry under Same Search Warrant

Service of a Search Warrant and Completion of an Inventory

Objectively Reasonable Conduct in Executing a Search Warrant

Using a Search Warrant to Take Blood

Bringing News Media or Third Parties during Execution of a Search Warrant

Scope of the Search and Seizure with a Search Warrant

Seizing Items in Plain View

Searching Buildings Not Named in the Warrant

Searching Vehicles Not Named in the Warrant

Challenging the Validity of a Search Warrant

Truthfulness of the Information

Use of Unconstitutionally Obtained Evidence

Revelation of a Confidential Informant’s Identity at a Suppression Hearing or Trial

Possible Defects in a Search Warrant or in the Procedure for Issuing a Search Warrant

Generally

An Officer’s Civil Liability

Exclusionary Rules Particularly Applicable to Search Warrants

Exclusionary Rules under the United States Constitution

Exclusionary Rules under the North Carolina Constitution

North Carolina’s Statutory Exclusionary Rule

Fifth Amendment Issues When Personal or Business Records Are Seized

Probable Cause

Warrantless Administrative Inspections

Generally

Inspection of a Fire Scene

Descriptions in Administrative Inspection Warrants

Consent to Authorize Inspections

Procedure for Issuing or Executing Administrative Inspection Warrants

Constitutional Issues

The Sixth Amendment Right to Counsel and Statutory Right to Counsel

Requiring Defendant to Undergo Nontestimonial Identification Procedure before Jury

Authority to Conduct Nontestimonial Identification Procedures

Mandatory and Permissive Use by the State

Using Force to Take Blood

Juveniles

Alternative of Using a Search Warrant

Defendant’s Request for a Nontestimonial Identification Order

The Nontestimonial Identification Procedure

Suppression Motions

Contents of Suppression Motion

Timing of Suppression Motion

Suppression Motion Made during Trial

Suppression Motion Based on Newly Discovered Evidence

Trial Court’s Ruling on Suppression Motion

When Trial Court’s Ruling Must Be Made

Trial Court’s Findings of Fact and Conclusions of Law

Whether Another Jurisdiction’s Ruling Is Binding on North Carolina Courts

Law of the Case

Trial Court Modifying Its Own Suppression Ruling

Trial Court Modifying Another Trial Court’s Suppression Ruling

Suppression Hearings

Admissibility of Hearsay at Suppression Hearing

Appellate Review of Suppression Motions and Rulings

Standing to Contest Fourth Amendment Violations

Standing to Contest Fifth Amendment Violations

General Exclusionary Rules

Scope of Fourth Amendment Exclusionary Rule

Direct Evidence

Derivative Evidence: Fruit of the Poisonous Tree

The Independent-Source Exception

The Inevitable-Discovery Exception

Impeachment with Unconstitutionally Obtained Evidence

Other Exclusionary Rule Exceptions

North Carolina’s Statutory Exclusionary Rule

Introduction

Unconstitutional Seizure and the Resulting Statement

Consequences of Violating North Carolina’s Statutes

Recording Custodial Interrogations at a Place of Detention

Voluntariness of the Defendant’s Statement

The Miranda Rule and Additional Statutory Rights

Overview

The Public-Safety Exception

The Booking-Questions Exception

A Young Arrestee’s Additional Statutory Warnings and Rights

Whether Miranda Warnings Must Be Repeated If There Is a Lapse in Interrogation

Deliberate Technique of Question Arrestee First, Give Miranda Warnings Later

When the Miranda Rule Applies: Custody and Interrogation

The Meaning of “Custody”

The seizure of a person under the Fourth Amendment

Functional equivalent of custody

The focus of the investigation

The officer’s unarticulated knowledge or beliefs

General on-the-scene questioning

Inmate in jail or prison

Age of a juvenile

The Meaning of “Interrogation”

Volunteered statements

Questions by undercover law enforcement officers or by non–law enforcement officers

Request for consent to search

Waiver of Miranda Rights

A Defendant’s Assertion of the Right to Remain Silent and the Right to Counsel

Asserting the Right to Remain Silent

Asserting the Right to Counsel

When assertion of right to counsel may be made

Equivocal and unequivocal requests for counsel

Partial assertion of right to counsel

Request to speak to a person who is not a lawyer

Resumption of Interrogation after the Defendant’s Assertion of Rights

The Right to Remain Silent

The Right to Counsel

Edwards v. Arizona and prohibiting interrogation after assertion of right to counsel

Arizona v. Roberson and prohibiting interrogation about unrelated crimes while defendant remains in continuous custody

Minnick v. Mississippi and defendant’s consultation with a lawyer after asserting the right to counsel

Maryland v. Shatzer and break in custody permitting re­-interrogation

Defendant’s initiation of communication with officers

A Defendant’s Sixth Amendment Right to Counsel

Separate Determination for Each Criminal Charge

Assertion of the Sixth Amendment Right to Counsel

Patterson v. Illinois

Montejo v. Louisiana

Sixth Amendment Right to Counsel and the Defendant’s Custody Status

Waiver of the Sixth Amendment Right to Counsel

The Sixth Amendment Right to Counsel and the Use of Informants to Obtain Statements

Introduction

Legal Requirements

Juveniles

Nonsuggestiveness of the Identification Procedure under Due Process Clause

The Sixth Amendment Right to Counsel at Identification Procedures

Sixth Amendment Right to Presence of Counsel at Lineups or Showups

Separate Determination for Each Criminal ChargePhoto Lineup

Waiver of the Right to Counsel

A Defendant’s Refusal to Participate

North Carolina Statutory Procedures for Live Lineups and Photo Lineups

Constitutional Issues

Fourth Amendment Issues

Fifth Amendment Issues

Sixth Amendment Issues

Entrapment

Confidentiality of Informants

Challenge of Probable Cause

Defense at Trial

Voluntariness of the Defendant’s Statement

Generally

Use of Deception

Mental Capacity to Confess

Intoxication

Confession Made after an Involuntary Confession

Defendant’s Statements: Miranda Warnings and Waiver

Generally

Adequacy of Miranda Warnings

Generally

Warnings in Foreign Languages

Necessity to Repeat Warnings

Waiver of Miranda Rights

Generally

Waiver When There Are Foreign Language Issues

The Public-Safety Exception

The Booking-Questions Exception

Questioning by Non–Law Enforcement Officers

The Meaning of “Custody” under Miranda

Generally

Traffic Cases

Prisoners and Jail Inmates

Juveniles

Military Personnel

Polygraph Cases

The Meaning of “Interrogation” under Miranda

Generally

Request for Consent to Search

Volunteered Statements

Assertion of Miranda Rights

Assertion of the Right to Remain Silent

Assertion of the Right to Counsel

Evidentiary Use of a Defendant’s Silence or Assertion of Right to Counsel or Right to Remain Silent

Use of Evidence Obtained as the Result of a Miranda Violation

North Carolina Statutory Warnings for Young Arrestees

Fifth Amendment Issues and Court-Ordered Mental Examinations

The Defendant’s Sixth Amendment Right to Counsel

Generally

Polygraph Examination Issues

Mental Examination Issues

Use of Informants to Obtain Statements

Use of Evidence Obtained as the Result of a Violation of the Sixth Amendment Right to Counsel

Admission of Defendant’s Statements after an Alleged Unconstitutional Arrest

When an Unconstitutional Arrest Occurred

When an Unconstitutional Arrest or Seizure Did Not Occur

Defendant’s Statements after a North Carolina Statutory Violation

Voluntariness of a Witness’s Statement

Defendant’s Trial Testimony Allegedly Induced by Introduction of Illegally Obtained Statement

Scope of Fifth Amendment Privilege of a Defendant or Witness at Trial

Admissibility of Written Confession

Foreign National’s Notification under Vienna Convention and Admissibility of Defendant’s Statements

Motions to Suppress and Suppression Hearings

The Sixth Amendment Right to Counsel at Identification Procedures

Nature of the Identification Procedure

In-Person Lineup or Showup

Photographic Lineup

When the Right to Counsel Attaches

The Exclusionary Rule When the Right to Counsel Is Violated

Due Process Review of Identification Procedures

Generally

Identification after an Unconstitutional Arrest

Statutory Procedures Involving Lineups

Statutory Restrictions on the Use of Identification Procedures with Young People

Introduction

Kinds of Evidence

Direct and Circumstantial Evidence

Testimonial, Real, Documentary, Illustrative, and Substantive Evidence

Judicial Notice

Witnesses

Competence of Witnesses

Generally

Spouses

Direct Examination of Witnesses

Leading Questions

Support of a Witness’s Testimony

Cross-Examining Witnesses

Impeaching a Witness’s Testimony

Impeaching a Witness with a Prior Conviction

Impeaching One’s Own Witness

Recollection

Refreshing Recollection

Recorded Past Recollection

Opinion Evidence, Including Expert Testimony

Lay Opinion

Expert Opinion

Character Evidence

Character Traits of Testifying Witnesses

Character Traits of Criminal Defendants

Character Traits of Homicide or Assault Victims

Prior Sexual Behavior of Sexual Assault Victims

Rule 404(b): Other Offenses or Bad Acts Committed by the Defendant

Privileges

Confidential Communications between Spouses

Attorney-Client Privilege

Physician-Patient Privilege

Other Privileges

Hearsay

Definition

Exceptions to the Hearsay Rule

When It Is Unnecessary to Prove That Hearsay Declarant Is Unavailable to Testify

Admissions, including statements by co-conspirators

Statement made for medical diagnosis or treatment

Excited utterance

Existing mental, emotional, or physical conditions

Present-sense impression

Business records

Public records or reports

Residual hearsay exception

When It Is Necessary to Prove That Hearsay Declarant Is Unavailable to Testify

Former testimony

Statement under belief of impending death (dying declaration)

Statement against interest

Residual hearsay exception

Constitutional and Related Statutory Issues

Constitutional Duty to Provide Evidence Materially Favorable to a Defendant; Related Statutory Obligations

Lost or Destroyed Evidence; Related Statutory Obligations

Confessions That Implicate Another at a Joint Trial

Miscellaneous Evidentiary Issues

Introduction of Forensic and Chemical Analysis Reports and Affidavits through Notice and Demand Statutes

Forensic Analyses

Chemical Analyses of Blood or Urine

Chemical Analyst’s Affidavit in District Court

Chemical Analyses in Drug Cases

Breath-Testing Instrument Records and Permits

Division of Motor Vehicles Records

Public Records

Authentication of Physical Evidence or Documents: Chain of Custody

Statutory Methods for Establishing Chain of Custody for Evidence Concerning Forensic and Chemical Analyses

Authentication of Audio and Video Recordings

Authentication of Text Messages and Cell Phone Records

Polygraph (Lie Detector) Evidence

Hypnotically Refreshed Testimony

Admissibility of a Defendant’s Written Confession

Best Evidence Rule

Proof of Local Ordinances

Return of Property to Owner