Monthly Archives: September 2021

David Adler| Local Columnist

Although not mentioned in the Constitution, the right to privacy has been invoked by its enormous following as thoroughly American and indispensable to our conception of liberty and freedom.

Its partisans have expressed numerous reasons for its exalted status in the hearts and minds of the citizenry. It prevents the government from spying on the people. It protects personal data. It protects freedom of speech and freedom of religion. It protects ones reputation, voting rights and participation in politics.

While not everyone agrees with the application, enforcement and scope, the right to privacy, the Supreme Court has held, also encompasses the use of contraception, access to abortion and, of course, privacy in our homes.

The right to privacy is not enumerated in the Constitution. Its lack of textual paternity is not unique; the right to travel, the right to marriage and the freedom of association, universally valued by Americans, are other examples of unenumerated rights. Nor does the textual omission make them less important than enumerated rights; invariably, every right and liberty requires interpretation by the courts.

For many, the puzzling part of the right to privacy is its origins. Like other rights and liberties, the right to privacy enters the annals of Anglo-American legal history through mere assertions that form a rhetorical tradition, embraced and prized by its beneficiaries which, in this instance, refers to those who, centuries ago, were fortunate enough to have homes. The immediate gateway is the Fourth Amendment,

which provides protection from unreasonable searches and seizures of ones property.

Prior to the American Revolution, there was scant evidence of a right to be secure in ones home from unreasonable search and seizure. English law and practice permitted governmental ransacking of private homes and places of business upon the flimsiest pretexts of illegal possessions, especially whenever the prospects for British revenue gleaned from taxation schemes were at stake.

Through the mists of time, we can discern a tradition that forges a path to the Fourth Amendment and the right to privacy. The majestic Magna Carta, written in 1215, and exalted as the basis for English liberty, as well as the legal conceptions of due process and equal protection, both fundamental to American Constitutionalism, was linked in the 16th Century to the fiction that a mans home is his castle.

A clerk of the Privy Council Robert Beale connected the dots in 1589, when he asked, rhetorically, what had happened to Chapter 39 of Magna Carta, which provided the basis for the law of the land, when agents of the prerogative courts could, on the basis of general search warrants, enter mens homes, break up chests and chambers and cart away as evidence whatever they pleased. Beales conversion of Chapter 39 into a ban on general search warrants influenced Americans thinking about privacy rights in their homes.

It was a masterful speech to Parliament by William Pitt in 1763 that summoned the idyllic symbol of a mans castle assaulted by unlawful governmental intrusions that played upon the heartstrings of Americans in defending the privacy of their homes. Pitt famously stated, The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It

may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.

The repetition of this argument against general search warrants by great English legal scholars and statesmen created a tradition that was eagerly embraced by Americans, striving for ways to limit English assaults on their homes and businesses. In 1756, the Massachusetts Bay colony passed legislation that prohibited general searches and required some elements of particularity. This landmark legislation would pave the way for the Fourth Amendment to the Constitution. What was missing on the American scene, however, was the sort of drama embodied in William Pitts speech to Parliament, a moment that might captivate the citizenry and become a cause.

That moment, that drama, was supplied by a brilliant young Boston attorney, James Otis Jr. who, in 1761, in Paxtons case, represented American colonists offended by the British practice of issuing writs of assistance, a kind of general warrant, issued in the name of the King, that empowered the agent to enlist the help of English subjects American colonists to aid the search.

Otis arguments rehearsed those presented by Beale and Pitt, and other English statesmen, and followed the familiar rhetorical tradition of asserting that the right in question had existed since time immemorial. Otis plea was futile, of course, for he was arguing before a panel of English judges committed to pleasing King George III, but he made history and, in the words of John Adams, who had decided to attend the argument so that he could watch the brilliant young lawyer at work, Otis was a flame of fire! He later wrote of Otis argument and eloquence: Then and there the child Independence was born.

Otis told the court that the only legitimate and constitutional warrant was a specific one, directed to specific officers, to search certain houses, upon an oath sworn by the person who believes certain goods to be concealed in those places. A writ that permitted a customs officer to enter private homes upon bare suspicion violated the essential liberty of every English subject, that of enjoying the benefits of a mans castle. With an eye to history yet to unfold, Otis declared that such a writ represented a violation of the English Constitution and should be held by the court to be null and void.

Otis constitutional arguments lit the way for subsequent state legislation that required specificity in search warrants. His influence on American Constitutionalism, immeasurable in so many ways, was easily calculated in its impact on specific requirements for searches and seizures. Adams borrowed Otis learned courtroom reasoning in writing Article XIV of the Massachusetts Declaration of Rights of 1780. James Madison also drew upon Otis in his introduction of what became the Fourth Amendment.

While the right to privacy entered American law through the Fourth Amendment, it found expression and defense in other provisions of the Bill of Rights. We turn to that discussion next week.

More here:
Through the mists of time: Origins of the right to privacy - Devil's Lake Daily Journal

When the federal government is in a snooping mood, it cant just go to big tech companies and buy all the personal information they collect on us each day. There are rules against that.

But nothing stops the government from buying that same information from third parties that get it from the big tech companies or elsewhere, sometimes without permission. A company called Venntel, for example, sells location data from users cell phones to government agencies. Another company, Clearview AI, has scooped up facial recognition images from Facebook, LinkedIn, Twitter and YouTube and sells that information to the government.

That kind of once-removed government surveillance puts the privacy of every American at risk.

There are times legitimate times when the government needs such highly personal information to pursue or prevent wrongdoing. But thats what judges and warrants and special courts are for. There is a process for balancing privacy and government needs.

But to allow the government to peek into our private lives just out of curiosity takes us down a dangerous road.

To protect Americans privacy, Sen. Tammy Duckworth, D-Illinois, and others in Congress are sponsoring The Fourth Amendment is Not for Sale Act. The Fourth Amendment is the one that guarantees the right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures by the government.

The bill would require the federal government to follow rules already spelled out in the Electronic Communications Privacy Act, which regulates law enforcement, and the Foreign Intelligence Surveillance Act, which regulates intelligence agencies. Those laws didnt anticipate the pervasive rise of third-party data brokers.

In recent years, law enforcement and intelligence agencies have tapped into the fathomless dossiers on almost everyone, much of it scraped up by third-party companies with no accountability. But government has no business going on fishing expeditions, unchecked by warrants or judges, into the private lives of presumed innocent persons.

Earlier laws to rein in such indefensible government snooping have been left in the dust by the rapid advance of technology. The new law, closing a loophole, is overdue.

Send letters to letters@suntimes.com.

The rest is here:
A smart new law would close a big loophole in federal governments right to snoop on you | Editorial - Chicago Sun-Times

Popular culture often depicts prisoners as effectively having no rights at all. Guards and inmates alike often get away with various forms of abuse and neglect in films and other media.

This is partially true. Prisoners in the United States do temporarily lose some of their rights while incarcerated, and forms of inmate abuse frequently happen in U.S. prisons. Even afterward, individuals convicted of crimes only regain some (but not all) of their rights back.

However, prisoners in the U.S. still retain several fundamental civil liberties and rights while under arrest or in prison. If these rights are violated, prisoners might be able to seek compensation in an inmate abuse case.

Below, well cover prisoners fundamental rights while incarcerated, as well as some of those they do not have.

The Eighth Amendment reads as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Prison staff assaulting inmates or even knowing about an assault between inmates but not reporting it (among other things) are often in violation of the Eighth Amendments cruel and unusual punishment.

Cruel and unusual punishment extends to the facilities in which pre-trial prisoners are kept, as well. Prisoners must be provided humane facilities. For instance, a vermin-infested, decrepit old prison would not be considered humane, thus potentially qualifying as cruel and unusual punishment.

Similarly, the Eighth Amendment provides justification for the presumption of innocence, as prisoners can post bail in most cases.

The Fifth Amendment provides pre-trial prisoners with due process. The 14th Amendment reiterates that this applies to all people born or naturalized in the U.S. and states that no one will be denied equal protection under the law.

That Equal Protection clause protects prisoners from any form of discrimination, such as based on race, sex, or religion unless doing so would clearly violate their safety.

Related: Numbers of women behind bars are soaring, report says

Additionally, courts have ruled that female inmates facilities, programs, and privileges must be substantially equivalent to male inmates.

Most federal rights that apply to certain protected individuals also apply in prison. For example, an inmate with a disability is still protected under the Americans With Disabilities Act (ADA) and thus should be provided adequate facilities.

Inmates keep some (but not all) First Amendment rights. For instance, their freedom of religion remains intact. In fact, prisons must provide adequate accommodations for prisoners to practice their religion. There are certain restrictions on specific aspects, like religious items one can possess, but they cannot completely restrict religious practice.

That said, prisoners lose a lot of freedom of speech. In particular, they lose free speech rights to the degree that such speech could otherwise prevent order and security in the prison.

Prison officials are allowed to open incoming mail to check for contraband as long as they do it in front of the inmate. Additionally, they cant read the emails contents. They can only check for contraband within the package or envelope. This is related to Fourth Amendment issues for inmates.

Prisoners do not have the right to bear arms while in prison for obvious reasons. Additionally, some misdemeanors and all felonies typically bar the inmate from purchasing or owning firearms upon release.

There are some cases where these rights may be restored federally once the inmate is released. However, individual states may have their own laws.

The Fourth Amendment typically protects against any searches and seizures deemed unreasonable under the law. However, the Supreme Court ruled in 1984s Hudson v. Palmer that inmates have virtually no Fourth Amendment rights. The reason is that prisoners have no reasonable expectation of privacy in prisons and that prison authorities need to access and search prison cells for security reasons.

Prison abuse thus, rights violations are rampant in the U.S. prison system. However, at the same time, many prisoners dont realize they may be able to take legal action because they arent fully aware of the rights they retain while incarcerated.

If you believe your rights were violated as an inmate, or you know someone who has gone through such an experience, you should contact an inmate abuse attorney right away. You can seek compensation for the rights violations and play a part in improving the U.S. prison system.

Read more:
What Legal Rights Do Inmates Have While Incarcerated? - The Legal Examiner

SPRINGDALE, Ark. (KNWA/KFTA) A Springdale man said police used excessive force when he was arrested in 2016, and a federal jury ruled against the officer in question this week.

Johnnie Rochell filed a civil suit based on his arrest five years ago. Rochell claimed a plain-clothed officer in an unmarked car parked in front of his home in 2016, staking out another house. Rochell said he tried to talk to the officer, then-Detective Cody Ross, but got no response. He walked into his house and returned with a rifle slung around his back.

Court documents said Rochell dropped the gun and stepped away from it before Ross tackled him and aimed a gun at his head. According to documents, police then misidentified Rochell as someone with a criminal past and arrested him.

A federal jury ruled Wednesday that Ross did use excessive force.

John Rochell was very happy with the outcome, said Matt Bender, one of several attorneys including Alicia Canfield and Tiffany Murphy, who represented Rochell. Hed waited five years.

Rochell initially sued for $200 million in damages. The jury ordered Ross to pay $7,000 in punitive damages and $1 in actual damages, and insurance will likely cover the former.

The actual damages, I think the jury was saying there was no actual physical injury or medical bills or things like that, said attorney Aaron Cash, who kept up with the case but didnt work on it himself. For the punitive damages, what the jury was saying is they found the officers conduct involved recklessness or indifference to the plaintiffs Fourth Amendment rights.

An unreasonable seizure fell into this category, Cash said.

Bender said things couldve gone much differently, so hes relieved at the ultimate outcome.

I am happy, but also I can imagine how easy it wouldve been for [Rochell] to have been killed during this incident, Bender said.

The Springdale Police Dept. declined an interview request Thursday, but a statement released Wednesday indicated support for Ross, who is now a school resource officer for Springdale.

On September 22, 2021 a jury found against Officer Cody Ross in a use of force case. While we respect the jurys findings we support Officer Ross as he evaluates his options.

Rochell declined to an interview request through his lawyer.

Go here to read the rest:
Attorney speaks after federal jury sides with client in excessive force lawsuit against Springdale officer - KNWA

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The City of Wilmington faces a lawsuit over its vehicle impounding system.

The action was filed by the Institute for Justice. The group litigates property rights cases across the country and challenges fines and fees.

According to a release, Wilmington contracts out its municipal impound system to private towing companies and funds the whole system by letting these companies keep cars and SUVs.

The release allegesd that the price of Wilmingtons cost-free impound services falls squarely on vehicle owners in Wilmington, who are at risk of losing their cars to an impound system woefully deficient of due process that profits off scrapping the cars they tow.

Listed as examples of the situation were Ameera Shaheed and Earl Dickerson, represented by the Institute for Justice.

The suit lawsuit challenges the citys program because the city and its contractors take cars worth more than the amount of debt, but then fail to return any surplus value to the owner (or even to credit the value of the car toward the ticket debt.

According to the release, the city violates the Fourth Amendment by seizing cars without a warrant, and the city violates due process by failing to provide any pre-or post-seizure hearing. Finally, the lawsuit challenges the loss of a vehicle as an excessive fine.

Ameera Shaheeds car the city ticketed her legally parked car six times in nine days. While her appeal of the wrongly issued tickets was pending, the city towed her car and demanded payment in full, the release stated.

When Ameera, a disabled grandmother of three, could not afford to pay $320 in tickets within 30 days, the towing company scrapped her car. Though Ameeras lost car was worth over $4,000, Wilmington still demands payment and increased what she owes with added penalties to $580.

The Institute for Justice, which litigates property rights cases across the country, regularly challenges unconstitutional fines and fees. In 2019, IJ won a victory before the United States Supreme Court. The high court held that the Eighth Amendments prohibition of excessive fines applies to state governments, not just the federal government.

The issue of impounded vehicles is not limited to Wilmington, with minority communities often subject to abuses. Car and Driver outlined such practices in Chiciago in a 2019 article.

A request for comment was sent to the City of Wilmington.

See the rest here:
City of Wilmington faces lawsuit over vehicle impounding system - delawarebusinessnow.com

Item 1.01. Entry into a Material Definitive Agreement

On September 21, 2021, Ritchie Bros. Auctioneers Incorporated (the "Company")entered into a fourth amendment (the "Fourth Amendment") to the CreditAgreement, dated as of October 27, 2016 (as amended, restated, amended andrestated, supplemented or otherwise modified from time to time, the "CreditAgreement"), among the Company, as a borrower, certain of its subsidiaries, eachas a borrower and/or a guarantor, Bank of America, N.A., as administrativeagent, U.S. swing line lender and letter of credit issuer, Royal Bank of Canada,as Canadian swing line lender and letter of credit issuer, and the other lendersparty thereto.

The Fourth Amendment, among other things, (i) extends the maturity date of themulticurrency revolving facilities (the "Revolving Facilities") and delayed-drawterm loan facility (the "Delayed-Draw Facility" and together with the RevolvingFacilities, the "Facilities") provided for by the Credit Agreement from October27, 2023 to September 21, 2026, (ii) increases the total size of the Facilitiesprovided under the Credit Agreement to up to $1.045 billion, including $295million of commitments under the Delayed-Draw Facility, a portion of which maybe used to finance, in part, the Company's previously announced acquisition ofEuro Auctions Limited, William Keys & Sons Holdings Limited, Equipment Sales Ltdand Equipment & Plant Services Ltd, (iii) reduces the applicable margin for baserate (or Canadian prime rate for certain Canadian Dollar borrowings) loans andLIBOR (or the equivalent rate for such currency) loans at each pricing tierlevel, (iv) reduces the applicable percentage per annum used to calculate thecommitment fee in respect of the unused commitments under the RevolvingFacilities at each pricing tier level and (v) includes customary provisions toprovide for the eventual replacement of LIBOR as a benchmark interest rate. Inconnection with the previously announced Fourth Amended and Restated CommitmentLetter, dated as of August 8, 2021, entered into among the Company and theCommitment Parties party thereto (as amended, the "Commitment Letter"),simultaneously with the effectiveness of the Fourth Amendment, the Companyterminated the Term Commitments (as defined in the Commitment Letter) under theCommitment Letter and Revolving Commitments (as defined in the CommitmentLetter) under the Commitment Letter and permanently reduced the Senior UnsecuredBridge Facility (as defined in the Commitment Letter) commitments under theCommitment Letter by $200,000,000.

Immediately prior to the Fourth Amendment, the aggregate principal amountoutstanding under the existing delayed-draw facility under the Credit Agreementwas CAD$118,889,995.48 million. In connection with the Fourth Amendment, theCompany refinanced such amount with the proceeds from a borrowing under theDelayed-Draw Facility on the closing date. Drawn amounts under the Delayed-DrawFacility will amortize in equal quarterly installments in an annual amount of5%, with the balance payable at maturity.

The foregoing description of the terms of the Fourth Amendment does not purportto be complete and is qualified in its entirety by reference to the FourthAmendment, attached as Exhibit 10.1 hereto, and incorporated herein byreference.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under anOff-Balance Sheet Arrangement of a Registrant

The information set forth in Item 1.01 above with respect to the Facilities ishereby incorporated by reference into this Item 2.03, insofar as it relates tothe creation of a direct financial obligation.

On September 21, 2021, the Company issued a press release regarding the FourthAmendment. A copy of this press release is attached hereto as Exhibit 99.1.

Item 9.01 Financial Statements and Exhibits.

Edgar Online, source Glimpses

Read the rest here:
RITCHIE BROS AUCTIONEERS INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an...

UPDATE: Springdale Police released a statement in response to the federal jurys decision.

On September 22, 2021 a jury found against Officer Cody Ross in a use of force case. While we respect the jurys findings we support Officer Ross as he evaluates his options, department spokesperson Lt. Jeff Taylor said in a statement.

SPRINGDALE, Ark. (KNWA/KFTA) A federal jury ruled to award punitive damages to a man stemming from a 2016 arrest in which the jury found a Springdale officer used excessive force.

Officer Cody Ross, who now serves as a school resource officer in the Springdale Public School District, used excessive force in arresting Johnnie Rochell, Jr. in 2016, according to the official verdict form. Ross conduct involved reckless or callous indifference to Mr. Rochells Fourth Amendment rights. Ross insurance will pay Rochell $7,000.

According to Rochells claim, first filed in 2016, then-Detective Ross parked in front of Rochells house in an unmarked car on Feb. 19 of that year wearing plain clothes surveilling a house down the street. After not responding to Rochells attempts to speak to him, the Springdale man went inside his house and retrieved a rifle, slung it over his shoulder and walked outside. Ross then got out of his truck, pointed a semi-automatic handgun in Rochells face and screamed, drop the [expletive] gun or Im going to kill you.

Rochell turned to get on the ground, he said in the complaint, and Ross continued to threaten him while lying on him. Rochell then reminded the officer that Arkansas is an open-carry state before accusing him of a racist double-standard and saying, I was coming for his badge. Ross asserted that Rochell pointed his rifle at him, something Rochell denied throughout his complaint, and that hed charge the Springdale man with aggravated assault. In every official report following the complaint, Ross said the gun wasnt pointed at him or used in a threatening way.

Ross apologized to Rochell once he was placed in the back of a police car, the complaint said, but he said he would still charge him with felony possession of a firearm. Rochell was ultimately arrested after police mixed him up with a white man with the same name wanted in other cases.

Six days later, Rochell tried to go to the police department to press charges against Ross, but he was refused. According to documents, Ross called Rochell the next day to apologize and make it right, telling Rochell he could come pick up his rifle. When he arrived, he was cited for disorderly conduct.

In the original complaint, Rochell asked for punitive damages of $200 million.

According to witnesses in the trial, Ross became emotional during the trial. Others said he acted professionally.

See the rest here:
Springdale officer used excessive force in 2016 arrest, federal jury says - KNWA

Judges Jefferson Griffin and Jeffery Carpenter appear in official state portraits.

Two North Carolina Court of Appeals judges both of whom are white and both of whom are Republicans on Tuesday slammed a Black defendants use of a speech by the states former chief justice in an attempt to reverse a cocaine conviction after a legally deficient police search and a subsequent guilty plea. The appeals court judges handed the defendant a win on legal grounds alone and not because he raised issues concerning alleged disparate treatment against Black people by the states courts. They also used two sharply worded concurrences to chastise the states former chief justice, who is Black, for addressing racial issues in the courts during a speech last summer.

The Case

Kevin Lee Johnson pleaded guilty to Felony Possession of Cocaine and to having attained Habitual-Felon Status, the opinion states. The opinion explains that Chris Stone, a lieutenant with the Iredell County Sheriffs Office, stopped defendant Johnson after the defendant drove away from a convenience store parking lot without fastening his seat belt. When Stone stopped Johnson, the lieutenant said he would let the defendant off the hook with a warning assuming nothing else was wrong. According to Stone, he asked Johnson to exit his vehicle and asked Johnson whether he consented to a search. (Johnson says Stone only asked to pat him down for weapons.) Johnson raise[d] his hands above his waist. Stone found a plastic wrapper with some type of soft material inside, which [Lieutenant Stone] believed was possibly powder cocaine, the opinion states. Stone told Johnson to call a narcotics supervisor about the possibility of becoming a snitch and avoiding charges. Johnson did not place the call. A grand jury subsequently indicted Johnson.

Johnson moved to suppress the discovery of the cocaine in his pocket. He alleged that Stone did not have reasonable suspicion to stop Defendant for the seatbelt infraction. Additionally, even if the stop was lawful, Lieutenant Stones going through the Defendants pockets for a violation of a seatbelt was excessive, unconstitutional, and unlawful (internal quotations omitted). More precisely, Johnson said he consented only to be patted down for weapons and not for a search of his pockets.

The trial court denied Johnsons motion to suppress, and Johnson subsequently pleaded guilty. He then appealed on two issues: (1) whether he preserved his argument his consent was involuntary on the basis Lieutenant Stone strayed from the traffic stops mission and measurably prolonged the stop, and (2) if so, whether the trial court erred by refusing to suppress the cocaine as a matter of law because the Defendants consent for the search was involuntary as a matter of law.

The appeals court spent several pages hashing whether the defendant properly preserved and raised his appeals; ultimately, the court skirted the issue by raising a procedural rule which allowed it to examine the merits of the case even if they werent properly preserved.

The court cut to the merits after spending several more pages recapping North Carolina law (citations omitted):

Here, Lieutenant Stone did not articulate any reasonable suspicion of other criminal activity to support his asking for Defendants consent to search. In fact, Lieutenant Stone stated he routinely asked for consent to a full search during traffic stops and taught other law enforcement officers to do the same. Thus, the pertinent inquiry is whether Lieutenant Stones asking Defendant for consent to search and the subsequent search measurably extended the stops duration rendering any consent Defendant gave involuntary as a matter of law. This inquiry, in turn, depends on whether the search deviated from the traffic stops mission. Certainly, a full search of Defendants person for any illegal contraband was not related to the traffic stop based on a seatbelt infraction. However, officer safety is a part of every traffic stops mission.

An officer is permitted to detain and individual when the officer has a reasonable suspicion criminal activity is afoot and may conduct an external frisk of the detained person if the officer has reason to believe the detainee is armed and potentially dangerous. Thus, it may have been reasonable for Lieutenant Stone to conduct an external frisk of Defendant for officer safety as a part of the traffic stops mission. Moreover, this traffic stops mission could have included a check for outstanding warrants and of Defendants license and registration. However, the length and scope of a full search, before any of those permissible checks were completed, measurably and impermissibly extended the traffic stop in this case.

The search lasted approximately twenty-six seconds . . . from the time Defendant appears to raise his arms and complies with the search and when Lieutenant Stone finished reaching into all Defendants pockets, the opinion continues. Moreover, the video reflects Lieutenant Stone never conducted an external frisk and possibly missed locations where Defendant could have concealed weapons instead focusing on the content of Defendants pockets.

Writing for the unanimous panel, Judge Toby Hampson said a pat-down for officer safety should have lasted just a few seconds, not nearly 30 seconds. He rationed that Stone neither identified nor articulated the reasonable suspicion necessary to request the search of the defendant in the first place.

North Carolina Court of Appeals Judge Toby Hampson appears in an official portrait.

The court spent several more pages unpacking specific North Carolina cases while rubbishing the states attempt to argue that interaction between Stone and the defendant added up to a constitutionally permissible consent search. In conclusion:

Here, the request to search and the full search of Defendant in this case was not related to the mission of the stop and wholly unsupported by any reasonable, articulable suspicion of other criminal activity afoot beyond the seatbelt infraction for which Lieutenant Stone initially stopped Defendant. Thus, because Lieutenant Stones request for consent and his subsequent search of Defendant measurably prolonged the traffic stop for reasons unrelated to the stops mission without reasonable suspicion, any consent Defendant gave for this full search was involuntary as a matter of law. Therefore, the trial court erred in denying Defendants Motion to Suppress the cocaine found as a result of this unreasonable search. Consequently, we reverse the trial courts denial of Defendants Motion to Suppress. Moreover, we vacate the Judgment entered against Defendant based on his guilty pleasentered subject to this appealto the charges of Felony Possession of Cocaine and the concomitant charge of attaining Habitual-Felon Status. We remand this matter to the trial court for further proceedings, including a determination of whether there is evidence to support the charges against Defendant or if these matters should be dismissed.

Concurring Opinions

Judges Jeffery Carpenter and Jefferson G. Griffin issued separate concurring opinions. Carpenter said there was no indication in the record in this case that racially disparate treatment was at issue and that he believed such arguments were wholly unnecessary:

Choosing to inject arguments of disparate treatment due to race into matters before the Court where such treatment is not at issue and does not further the goal of the equal application of the law to everyone. Rather, such a discussion functions to overshadow the other important constitutional issues of this case, and is not helpful to maintaining public confidence in the judiciary or the practice of law generally.

Griffin added separately the following more pointed analysis:

I write separately to indicate exactly where Lieutenant Stone violated the Fourth Amendment to the U.S. Constitution. The Defendants brief also raises a question of impartiality in traffic stops, and our justice system generally, based on the color of a persons skin and their gender. This appeal to an emotion, and to nothing before us in the Record, must be addressed, as the law applies equally to everyone. This case presents a very specific set of facts to guide our analysis. The stop of Defendants vehicle was supported by reasonable suspicion. [R]easonable suspicion is the necessary standard for traffic stops[.] State v. Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440 (2008) (citation omitted). Lieutenant Stone plainly articulated that he observed Defendant driving the vehicle without wearing a seatbelt. Defendant does not challenge on appeal the validity of the initial traffic stop.

After articulating that Lt. Stone did lawfully ask Defendant to get out of the vehicle for safety reasons and why the law allowed him to do so for officer safety purposes, Griffin continued:

The issue in this case arises when Lieutenant Stone asks to search Defendant with no additional reasonable suspicion of other criminal activity. The only violation evident from the Record is the seatbelt violation. Here, Lieutenant Stones testimony was clear that his intent was to search Defendant. The evidence in the Record supports this. The video of the interaction between Lieutenant Stone and Defendant cuts against an assertion that the search was for officer safety. Further, the trial court made no findings regarding officer safety concerns. The search was administered only in the pockets of Defendant. There was no pat down frisk. Lieutenant Stone reached directly into Defendants pockets and did not search other areas of Defendants person where weapons could be hidden. The evidence here does not indicate that the search was motivated by a concern for officer safety. Lieutenant Stone even stated that he asked to search every single person that I stop and that for years he had been training new deputies to ask to search people that they stop. An officer can certainly ask for consent to search an individual after a lawful detention. However, under this specific set of facts, this search prolonged the mission of the stop in violation of the Fourth Amendment. (Citations omitted.) Lieutenant Stone articulated no additional reasonable suspicion of criminal activity for asking to search Defendant, thereby illegally delaying the stop.

Judge Griffin disagreed with the suggestion by Lt. Stone that the defendant had consented to a search.

If Lieutenant Stone had reasonable articulable suspicion of other criminal activity or had received valid consent for an additional search, the additional search would not have violated the Fourth Amendment by extending the encounter, Griffin wrote.

Despite granting a win to the defendant, he also slammed the tactics used during the appeal.

Defendants brief implies that U.S. citizens are treated differently under our laws based on the color of their skin. I reject this argument, Griffin wrote. The law is color blind and applies equally to every citizen in the United States of America. This argument in Defendants brief is inflammatory and unnecessary.

Griffin then recounted that Johnsons brief quoted former North Carolina Supreme Court Chief Justice Cheri Beasley. During a June 2, 2020 speech, Beasley, who is Black, issued statements that Griffin interpreted as having suggested that our justice system does not treat people equally in the courtroom based on the color of their skin. From Beasleys speech:

As the mother of twin sons who are young black men, I know that the calls for change absolutely must be heeded. And while we rely on our political leaders to institute those necessary changes, we must also acknowledge the distinct role that our courts play. As Chief Justice, it is my responsibility to take ownership of the way our courts administer justice, and acknowledge that we must do better, we must be better.

[ . . . ]

In our courts, African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty. There are many ways to create change in the world, but one thing is apparent: the young people who are protesting everyday have made clear that they do not intend to live in a world in which they are denied justice and equality like the generations before them.

We must develop a plan for accountability in our courts. Judges work hard and are committed to serving the public. But even the best judges must be trained to recognize our own biases. We have to be experts not just in the law, but in equity, equity that recognizes the difficult truths about our shared past. We must openly acknowledge the disparities that exist and are too often perpetuated by our justice system.

The full text of the speech is available online.

Griffin said the former chief justices words were illustrative of a problem with the judiciary:

This statement from the former Chief Justice has motivated Defendant in this case to assert that [o]ur Constitution gives this Court the legal authority to carry out our Chief Justices pledge. Defendants statement highlights the problem with the judiciary becoming involved in public policy. The speech by the former Chief Justice states our justice system does not treat people equally based on the color of their skin. It also encourages and charges the courts to become an active body by involving our judicial branch in policy decisions. The judiciary should at all times practice judicial restraint. Here, this Court reaches the correct legal outcome regardless of the color of Defendant.

We are fortunate to live in the United States of America where the law is applied the same to all citizens.

North Carolina Court of Appeals judges are currently elected in partisan elections. Carpenter and Griffin are Republicans; Hampson is a Democrat. Carpenter told Ballotpedia in 2020 that he is a former state trooper.

Read the full published opinion below:

[images via portraits maintained by the N.C. Court of Appeals]

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The Law Is Applied the Same to All Citizens: Republican N.C. Appeals Court Judges Use Concurring Opinions to Slam Defendants Racial Bias Claims - Law...