THE LAW: In U.S. v. Patiutka, the US Court of Appeal for the Fourth Circuit ruled that when a motorist gives consent to a vehicle search during a traffic stop, that consent can be withdrawn. When the police officers ignored Mr. Patiutka’s request to cease the search, the evidence seized was suppressed. The court ruled that since consent was the only basis for the search, when the consent was withdrawn, the police officer’s continued search was illegal.

THE LESSON: The motorist has the right and the power not to consent. It is critical to not make the police officer’s goal of building a case against you easier. Never consent to anything: never agree to give the police the right to search and never provide them with information prior to consulting with an attorney. If by some reason you temporarily forget this advice, withdraw consent immediately after regaining your senses. Now that police encounters are often recorded with dashcams and chest mounted cameras, the video tape evidence is a much more accurate account of whether consent was given and the scope of the consent. Know to say “no.”


U.S .v. Patiutka (US Court of Appeals, Fourth Circuit, 10/23/2015)


Commercial social networking websites are off limits to registered sex offenders

I was the trial lawyer in this case in 2010 and I moved to dismiss the case alleging that N.C. Gen. Stat. 14-202.5 which forbids the accessing of a commercial social networking web site by a registered sex offender was unconstitutional. The Court of Appeals agreed with me and ruled that the statute violated the First Amendment and was unconstitutional on its face and as applied. However, last week the NC Supreme Court reversed, holding that section 14-202.5 was constitutional and was not unconstitutionally overbroad or vague.

This law prevents one from having a Facebook page or accessing other social network sites where minors under 18 years of age are permitted. The next appeal will be in federal court but until the NCSC decision is reversed, persons on the sex offender registry must stay off sites where minors may be members.

State v. Packingham, Docket: 366PA13, Opinion Date: November 6, 2015


Your longtime girlfriend hooks up with your roommate and you are livid. In a moment of anger and heartbreak, you post a graphic video clip of the sex tape you and she made, label it “My Ex: the Back-Stabbing Bitch” and post it online.  This rash action can result in a civil and criminal case, confiscation of your phone and computer and arrest under the new “Revenge Porn” law. Posting “Revenge Porn” online will be a felony for adults and a misdemeanor for those under 18 years of age as of December 1, 2015 in the state of North Carolina.

Revenge Porn refers to the posting of intimate images (breasts with nipple visible, male and female genitalia/pubic area and anal area) for the purposes of harassment or humiliation when the poster of the material knows that the images were disclosed in the context of a personal relationship and with a reasonable expectation of privacy.

A “personal relationship” is defined as: current or former spouses; persons of opposite sex who live together or have lived together; persons who have a child in common; current or former household members and persons of the opposite sex who are in a dating relationship or have been in a dating relationship. For purposes of this subdivision, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship. (NCGS 50B‑1(b).)

All the following elements must be proven:

“(1)     The person knowingly discloses an image of another person with the intent to do either of the following:

a. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

b. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

(2)      The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.

(3)      The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.

(4)      The person discloses the image without the affirmative consent of the depicted person.

(5)     The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.” (NCGS§ 14‑190.5A)

This is a complicated law and defenses exist under the First Amendment, statutory exceptions and qualifiers. Please contact me to discuss the specifics of your case.

Supreme Court rules that threats posted on Facebook not a crime if just a rant

Supporters of free speech on social media won a big victory when the US Supreme Court ruled on June 1, 2015, that a federal law which prosecuted a man for making statements on Facebook, that a reasonable person would have viewed as threatening, was unconstitutional.
A man posted the following on Facebook, “Did you know that it’s illegal for me to say I want to kill my wife?” In another, he wrote he would “not rest until your body is a mess, sealed in blood and dying from all the little cuts.” He also posted that he was about to “pull my knife [and] slit her throat.” He was convicted when a jury concluded that a reasonable person would have regarded the posts as threats.
Chief Justice Roberts stated that because the man thought that his posts were “therapeutic rants,” he did not have an “awareness of wrongdoing.” The defendant had posted disclaimers on Facebook stating that he was exercising his right to free speech and was inspired by rap lyrics. Justice Roberts stated that it was an error for the trial judge to permit the jury to convict the defendant based only on how his posts would be viewed by a reasonable person; the defendant had to be aware that his rants were true threats. The use of the words could not constitute a crime if the speaker’s intended meaning was not considered.
This ruling is important because even if a reasonable person would view the speech as a threat, if the speaker did not intend it to be a threat, it is not a crime. A defendant can be convicted only if he “transmits a communication for the purpose of issuing a threat or with the knowledge that the communication will be viewed as a threat.”
For our purposes, if a speech based criminal charge is alleged, the speaker’s intent is controlling. Relevant to any defense of such a charge is an in depth analysis of the specific facts and circumstances surrounding the current posts and the speaker’s belief as to the purpose of the speech.

Killing Rap and Artistic License in Criminal Court

In the New York Times article, “Acquitted of Murder, Rapper Is Convicted on Weapon Charge” Lorne Manly discussed the recent new assault on the First Amendment. Currently, prosecutors are trying to introduce rap lyrics as confession evidence in pending criminal trials. Their argument is that merely setting the confession to music or in the form of a rap does not detract from its incriminating nature. Furthermore, courts are admitting this evidence.
What ever happened to artistic license? When Johnny Cash created his alter ego, an inmate in Folsom prison who had “shot a man in Reno just to watch him die,” No police officers began to comb their cold case files for an unsolved homicide in Reno. People understood the concept of artistic license.
This development could be the beginning of the end for rap. What do rap artists rap about? Not sunshine and rainbows but life observed: drugs, guns, gangs, shootings, police harassment etc. Consequently, if police and prosecutors can use the lyrics to criminally prosecute, the chilling effect on the desire to write and perform a song or rap is enormous. Why risk the harassment, possible incarceration and legal proceedings in order to express oneself? If that is not a violation of free speech, what is?

Durham cops lied about 911 calls

“Several Durham police officers lied about non-existent 911 calls to try to convince residents to allow them to search their homes, a tactic several lawyers say is illegal. The officers targeted residences where individuals with outstanding warrants were thought to be living, and told them that dispatch had received a 911 call from that address, when no such call had been made.

However, Durham Police Chief Jose Lopez says the 911 tactic was never a part of official policy. Last month, the department officially banned the practice, according to a memo from Lopez.

The tactic came to light at a court hearing on May 27, when a Durham Police officer testified it was part of official departmental policy. The hearing involved a defendant who had been charged with marijuana possession. (The INDY is not naming the defendant because the charges against her were dropped.)

In February, Officer A.B. Beck knocked on the door of the defendant’s home in South-Central Durham. When the defendant answered the door, Beck told her—falsely—that someone in her home had called 911 and hung up, and that he wanted to make sure everyone was safe. The defendant permitted Beck to enter her home, where he discovered two marijuana blunts and a marijuana grinder.

When Beck took the witness stand, he admitted to fabricating the 911 story in order to enter the house. Beck testified that his true intent was to serve a warrant, though he never produced the warrant in the courtroom.

Beck further testified that the 911 ruse was permitted under a department policy in cases where domestic violence is alleged, recalled Morgan Canady, the defendant’s lawyer.

During cross-examination, Canady quizzed Beck further.

Did you say there was a 911 hang-up? she asked.

Yes, he said.

But there was not a 911 hang-up?


So you entered the house based on a lie?


And this is your policy for domestic violence warrants?


At that point Canady made a motion to suppress the marijuana evidence. Since the defendant’s consent was based on false premises, Canady reasoned, the consent was not informed and voluntary. Marcia Morey, chief district judge for Durham County, allowed the motion to suppress the evidence.

“You cannot enter someone’s house based on a lie,” Morey said from the bench during the hearing.

Without the evidence, the district attorney’s office dropped the charges.

“People have a constitutional right to privacy, and you can’t fake someone out of their constitutional rights,” said Durham defense attorney Brian Aus, who was not involved with the case. “You’ve got to be honest about this stuff.”

Ten days after the case was dropped, Chief Lopez sent a memo to all police department personnel banned the 911 ruse tactic. The department provided a copy of the memo to the INDY.

“It has recently been brought to my attention that some officers have informed citizens that there has been a 911 hang-up call from their residence in order to obtain consent to enter for the actual purpose of looking for wanted persons on outstanding warrants,” said the memo. “Effective immediately no officer will inform a citizen that there has been any call to the emergency communications center, including a hang-up call, when there in fact has been no such call.”

Asked why Officer Beck considered the 911 ruse tactic permissible, a police spokesperson said, ‘the department is looking into that.'”

by John H. Tucker @JH_Tucker | July 09, 2014 INDY week