Time to Swab?

North Carolina law requires the collection  of a person's DNA upon the arrest of certain offenses, including those arrested for criminal charges in Mecklenburg County. This is upon arrest and not conviction. You can read the North Carolina statute here. 

The Supreme Court heard oral arguments this week surrounding a similar law in Maryland. Click here for a summary of the case. Justice Alito acknowledged the importance of this case:

"I think this is perhaps the most important criminal procedure case that this Court has heard in decades..This is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy."

A minimal intrusion on personal privacy isn't necessarily the concern. Unlike the case where a catheter was used to test for marijuana use, having the inside of your mouth swabbed is not much of an intrusion. The intrusion is the government having a person's DNA sample before being convicted of any crime. Justice Scalia  had an interesting point after hearing that Maryland obtained 42 convictions based upon samples taken from people arrested in their state: 

"Well, that’s really good. I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing."

 It is an interesting term for the Supreme Court and the Fourth Amendment. Between this case and the Court  hearing whether blood draws can be taken without a warrant, the Fourth Amendment is being challenged  this year.

Mecklenburg Criminal Law Updates Provided By Law Office of Carilyn Ibsen PLLC (888)543-2427

Marijuana Possession- An Illegal Search

A criminal attorney rarely forgets the cases they loose. I still remember a case I lost as a Deputy District Attorney in California back in the 1990's. It was a straightforward drug case. Police were called to a convenience store in reference to a suspicious man in the store. Officer arrives, makes contact with the man, and then conducts what the police officer calls an officer safety "pat down search for weapons". Under the Fourth Amendment, the law permits a police officer to conduct this pat down search for weapons when the officer can describe specific reasons why he believes the person to be armed and dangerous. In my case, the court granted the defense attorney's motion to suppress the evidence prior to trial. The court found the police officer had a legitimate reason to contact the man, but then found that the officer was unable to articulate specific facts that showed this man could be armed and dangerous.  Pat down searches often lead to the discovery of illegal contraband. From that point on in my career, I had countless conversations with police officers regarding the legality of  pat down searches. I would reject cases for further information when I would read the language "I conducted a cursory pat down search for weapons."  Cursory? Automatically done on every case? Can't do that....

This issue came up last week in Mecklenburg County District court in my client's marijuana case. My client was a passenger in a Ford Taurus. In a matter of seconds they were being pulled over by five different police vehicles. After the vehicle is pulled over, my client is ordered out of the vehicle and patted down for weapons.  The police officer found some marijuana on my client. The officer testified the car my client was riding in matched the description of a car that had been involved in several armed robberies. He testified the Ford Taurus involved in the robberies also had two African-Americans driving the vehicle.

The court granted my motion to suppress the evidence. This means the judge found a violation of my client's Fourth Amendment Rights, which requires the evidence in my case, the marijuana, be excluded from evidence. The District Attorney is unable to proceed with the case because there is no evidence to use against my client. The case is dismissed.  The Court found that the police officer was within the law to pull the vehicle over, but the pat down search was not supported by enough facts to justify the search.

As I have said in earlier posts, I never underestimate the danger police officers face every day. It is a dangerous job. However, they must be able to articulate with clarity the dangers they encounter in the field when they come to the courthouse to testify at trial. This police officer couldn't. The result- My client left the Mecklenburg County Courthouse with his case dismissed.