[Izak Post] Liquor Laws, being bullied at Sam's Club, and blue collar brawls: Michigan's criminal laws on store clerk ID checks.

Izak Post wrote the following article in response to an altercation he and his wife experienced at Sam's Club over the weekend involving their attempt to purchase alcohol. He discusses the laws related to what clerks must check prior to the purchase of alcohol at Sam's Club. (For NC readers who are no doubt confused...none of this applies to NC law. All liquor purchases must be through the ABC). 

Spoiler alert: Izak and Liz are never wrong. Ever.

--- Here's Izak ----

This last weekend my wife and I were in Sam’s Club buying groceries and an embarrassingly fruity, sparkly, alcoholic beverage. I usually drive, so my wife usually leaves her driver’s license at home. When we went to purchase the wine, the check-out clerk asked for my ID. I happily gave it to her. Then she asked to see my wife’s ID. My wife said she left it at home. I told the clerk that I was the one buying the wine, so why does she need to see my wife’s ID. The clerk responded that it was Sam’s Club Policy to check all ID’s of the check-out group. Not only that, but the clerk said that it was against the law to not check the ID’s of everyone in the check-out party.  Hearing that was like nails on a chalk board. I bit my tongue in an attempt to avoid saying the most annoying thing a lawyer can say to someone. But before I knew it, my wife, who is also an attorney, said, “well, we are both attorneys, and we know for a fact that it is not against the law.”

I can’t be mad at my wife because that is exactly what I was thinking. Even though I can’t blame my wife, the 5 foot 4 inch man behind us in the check-out line wearing an NRA cut off sleeve shirt and a long dirty pony tail became annoyed. He said that we better stop arguing laws and start checking out. I tried to explain that the computer was still processing, and our conversation about the law was not effecting his wait time. This enraged Hell’s Angel’s hobbit told me that I better shut up before he kicks my [butt]. Now, I have seen the Lord of The Rings, so I know when to back down from a fight. However, this experience got me thinking. Is it really a law that a store must check every ID in the check-out party? What about a parent with her minor children? Can the clerk not sell alcohol to parents with children present?

So the short answer is No, a store does not have to check every ID. Wal-Mart has made it their policy to check every ID, especially in college towns. There are a whole slew of news articles about patrons being denied the privilege to purchase alcohol because they had their kids with them, etc.

However, the law says a clerk does not even have to check an ID, let alone all ID’s. Michigan.gov has a retail guide for retailers of alcohol. They say to “Always check the identification (ID) of a person who appears less than 21 years old.  https://www.michigan.gov/documents/dleg/FINAL-_Retail_Guide_2009_WEB_304923_7.pdf.

Of course, there is a law against selling alcohol to minors, MCL 436.1701. http://www.legislature.mi.gov/(S(l5bgi4ongafwnabdaggcj1yc))/mileg.aspx?page=getobject&objectname  =mcl-436-1701.

But this law says nothing about having to card anyone, let alone everyone that is checking out.

Now, Wal-Mart has the discretion to implement any policy it would like regarding selling alcohol, no matter how infuriating it is, but it is certainly not a law that a Wal-Mart cashier must check every ID in the check-out party.

For some more stories about stores refusing to sell liquor to people, check out these links:

-        http://wgntv.com/2014/07/30/walmart-refuses-to-sell-alcohol-to-iowa-dad-shopping-with-teen-daughter/

-        http://klaq.com/i-found-out-something-amazing-about-wal-mart-and-their-alcohol-sales-policies/

-        http://fox2now.com/2014/07/30/has-this-happened-to-you-woman-says-walmart-wont-sell-her-alcohol-because-underage-kids-were-present/

A woman's estate settled its claims against a retirement community for $1.35 million after an employee ran her over in a golf cart and caused fatal injuries in the presence of the woman's daughter

The law rarely recognizes claims for emotional distress or “mere fright or anxiety, disappointment, or regret,” absent the presence of other cognizable damages – usually some type of physical manifestation of injury – but there are some instances when the emotional trauma is so naturally intolerable that the law will excuse potential evidentiary uncertainties and provide remedies for relief.

This recent case out of North Carolina is a heartbreaking example of when it’s appropriate for the law to allow a remedy for loss.

As Heath Hamacher with Lawyer’s Weekly reports, a woman’s estate settled claims for $1.35 million after an employee at the woman’s retirement community struck her with a golf cart in the presence of the woman’s daughter, who was with her mother when the incident occurred and attempted to help her after the accident while her mother fought for her life in the crosswalk. Her mother later died in the hospital from the injuries. The daughter was there through it all. 

In North Carolina, a plaintiff can hold a defendant liable for severely and sincerely felt emotional distress when such a response falls within a reasonably foreseeable range of responses to defendant’s conduct, even if no physical manifestation of the injury occurs. Sorrells v. M.Y.B. Hospitality Venturer, 334 N.C. 669, 435 S.E.2d 320 (1993). When the emotional distress the plaintiff feels arises out of her concern for another’s wellbeing, the courts instruct jurors to consider the plaintiff’s physical proximity to the incident, how close of a relationship she shared with the victim, and whether the plaintiff personally observed the defendant suffer the injury, among other factors all designed to guide jurors in their determination of whether the plaintiff’s response was reasonable in light of what happened. Johnson v. Ruark Obstetrics and Gynecology Associations, P.A., 327 N.C. 283, 395 S.E.2d 85 (1990).

The case mentioned above settled this week for more than a million dollars for a reason. It was a strong case – and one of the claims was for the negligent infliction of emotional distress that the woman’s daughter suffered, who continues her ongoing battle with Post Traumatic Stress Disorder. What the woman’s daughter endured encapsulates the precise situation when the law cannot expect a plaintiff to keep it together under those circumstances, even if the plaintiff did not personally suffer a physical injury. The plaintiff-daughter had a strong relationship with the injured (her mother), she was close enough to the accident to grasp the gravity of the harm and its terrifying nature, and she personally observed it all, even her mother’s subsequent attempts to fight for her life.

While no sum of money can replace what the woman’s estate and her daughter lost, it’s at least worthwhile knowing that civil law is strong enough to appreciate how difficult such an event can be for those left in its wake.

A stuffed animal tiger frightened a fellow roadster into calling 9-1-1. The officer's response puts a funny twist on a dangerous problem the law faces.

To start, it’s important to highlight the real emergency in this case. The person who called in the stuffed tiger didn’t use her phone for its intended instagram purpose. That insta would have put them on the map.

Connor Zuvich, from Vancouver, Washington (not British Columbia…another surprise twist in this story), discovered a life-sized stuffed tiger lying lonely next to some trash bags next to some lake located in less-than-domineering shadow of Canada. He naturally decided to strap the stuffed animal tiger to the top of his SUV (probably a Subaru given the location) and drive around the town everyone thought was in Canada.

A concerned citizen promptly called the cops, who arrived at the scene prepared to wage war with a ferocious beast that someone was able to train well enough to lay comfortably atop a car traveling at highway speeds. They quickly realized the tiger was a stuffed animal. Buzz kill. Police decided not to charge Zuvich with a crime because there wasn’t one. As the Sergeant of the City of Camas Police Department said, “no report was taken during the Monday incident because there is no law against strapping stuffed animals to the top of a car,” according to a Reuters story out of Seattle with Eric Walsh, Cynthia Johnson, and Victoria Cavaliere taking the byline.

UNC's Ramsees can attest to the true epidemic that is stuffed realism.

But distracted driving is not funny. It substantially imperils public safety and the law struggles mightily at all stages to protect the public from the antics of others on the road. N.C.G.S. § 20-137.4A is North Carolina’s law that prohibits the use of mobile devices for the purposes of texting while driving. To quote subsection (a) in its entirety is a good example of how rigid laws fail to flex with a constantly adapting society.  

§ 20-137.4A.  Unlawful use of mobile telephone for text messaging or electronic mail.

(a)               Offense. - It shall be unlawful for any person to operate a vehicle on a public street or highway or public vehicular area while using a mobile telephone to: (1)  Manually enter multiple letters or text in the device as a means of communicating with another person; or (2)  Read any electronic mail or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.

This statute brings to light three main difficulties legislatures, law enforcement officers, and the judiciary share with distracted driving. For legislatures, it’s nearly impossible to draft passable legislation that accounts for activities like driving with life-sized stuffed animal tigers strapped to someone’s SUV. If it’s too narrow, no one will support it. If it’s too broad, it will be unconstitutionally so and likewise fail.

For law enforcement officers, detection of these crimes is nearly impossible.Looking at North Carolina’s statute, the scenarios in which an officer can (constitutionally) detect the difference in texting versus typing an address into Googl- let's be real, Apple Maps, are slim to none.

For the judiciary, it’s nearly impossible to punish the crime except that it’s statutorily negligence per se (that’s like automatic-fault liability inception) should someone get injured. Failure to comply with the penalty carries no driver’s license points or insurance points. It’s like a parking ticket, except that a parking ticket on UNC’s campus is probably more serious.

The legislature is on to something, though. The solution is probably more civil than it is criminal. It calls on our ongoing duty to recognize that our place in the world is one shared with billions of other people. To co-exist civilly requires us all to maintain a heightened situational awareness while on the road. Put simply, the text can wait. Your life and those around you are too valuable to risk.

Disco: a greater threat now to the public trust than when it was a dance...(I know).

Pre-trial discovery encapsulates an increasingly problematic area of law because it’s so ripe for abuse. A case out of Arkansas continues this trend. In North Carolina, N.C.G.S. § 15A-903 requires prosecutors to supply defendants with the information the state plans to use to convict the defendant within a reasonable amount of time before the state actually uses the information. ‘Notice’ of an opportunity to defend would be largely ineffective if the individual had to guess what exactly to defend.

The statute itself is intentionally broad, and with deference to the defendant, as it’s meant to require the state to disclose information about the case difficult to anticipate. Otherwise, the state’s failure to manifest candor in conviction “erodes the public trust not only in district attorneys but in any public official. State v. Moncree, 655 S.E.2d 464, at 468 (N.C. App. 2008).

By all means, North Carolina has had its fair share of notorious discovery blunders, as we too readily purge our collective consciousness of the abuse of discovery involved in former District Attorney Nifong’s prosecution of the Duke lacrosse fiasco, but a case out of Arkansas shocks even that level of inexcusable abuse. As Debra Cassens Weiss reports for the ABA Journal, technical indications and file structuring suggest that an attorney with the Fort Smith Police Department provided discovery to the requesting attorney, Matthew Campbell, infected with malware designed to “steal passwords, install malicious software, and give someone else command and control of the infected computer,” according to Attorney Campbell’s subsequent motion for sanctions. 

I’m sorry, what?

While admittedly in a civil case, the attorney for the Fort Smith Police Department still reflects upon the police department and those actions threaten to further alienate the public from the authority that’s meant to protect it, not control it. North Carolina knows all too well the distrust from the public expected when such actions take place. These fears are very real and continue to mount in the wake of riots sparked throughout the nation in response to police action. It’s so bad in Baltimore that the city banned the public from Camden Yards. Police departments nationwide face a growing level of public distrust in fulfillment of the fears Moncree and those like it prophesized. A position of authority is one that requires a relationship of trust from officers to prosecutors. The widespread abuse of that authority will only continue to dismantle the very civil society those before us fought to construct. 

Facebook is at the center of yet another criminal case involving unconscionable bigotry

WRAL reported on the latest of a bewildering tale of increasingly tragic proportions involving the murder of North Carolina man this week. Florida authorities arrested and extradited Kenneth Morgan Stancil III on suspicion of the murder of Ron Lane, a worker at Wayne County Community College. Stancil’s chilling and unapologetic admission to the crime and his bigoted justifications for the killing overshadowed the lurking dangers of social media and its increasingly forceful role in today’s society.

Stancil proudly took responsibility for the murder, at first even refusing court appointed counsel, because he purged the earth of a homosexual. He admitted membership to a neo-Nazi group that rallies around anciently held hateful beliefs, but even louder than his words was his look and demeanor: calm, cool, facially tatted and shaved.

According to WRAL, Stancil worked for Lane but got wind of Lane’s message to Stancil’s younger brother whereupon Lane sought sexual relations. How did Lane reach Stancil’s younger brother? A Facebook message. Stancil came across the message online, became enraged at the homosexual advance, and walked casually into work to kill Lane. He shot Lane dead with a 12-guage shotgun. 

“If you fall in my top eight, I will kill you,” Stancil explained to Judge Arnold O. Jones while in court. Perhaps unsurprisingly, Stancil struggled to compose himself when the court would not entertain his speech. He attempted to flip the defense table in disgust.

As he was handcuffed, he did not succeed. 

There are layers of this tragedy that thicken the narrative of Lane’s untimely death. Almost all of them deserve rightful attention, but what is becoming all too commonplace is that social media somehow threads events like this together. Facebook can be an excellent place to connect with society in unprecedented ways. Unfortunately, that can occasionally be a bad thing. Stancil’s brother was 16. Lane would never have dared such an encounter in-person with the risk Stancil would react negatively. Facebook allows for a level of detachment that emboldens users with a sense of comfort either from others or law enforcement. It propagates a culture of harassment with seeming detachment from consequences. There are consequences, though, and maybe not always as evident as the one in this case, but this provides notice that there are consequences on the recipient of advances like this.

Privacy concerns are not new but are becoming increasingly tragic. Perhaps the silver lining is that higher profile cases like this may shed more awareness on the dangers involved with the misuse of social media such that it prompts caution ahead of brazen disregard for the sensibility of other humans. 

A name's vital to your brand and startup. It's important to take care in selecting a name that won't infringe on anyone's already established entity. Ask Richard.

We selected a clip below from HBO's Silicon Valley. A group of tech entrepreneurs start a company that quickly compresses data without sacrificing quality to the benefit of cloud storage. They called it Pied Piper, but unfortunately there was a company already called Pied Piper in California. The owner confronts the startup.

In North Carolina, another entity may sue for unfair competition or trade name infringement if your business chooses a name so similar to another's that it could conceivably deceive or confuse the public. The name your entity chooses must therefore be distinguishable upon the records of the Secretary of State from the name of any domestic corporation or the name of any foreign corporation authorized to transact business or conduct affairs in North Carolina, a corporate name reserved or registered, or a name used, reserved, or registered by a domestic or foreign, nonprofit organization, limited liability company, a limited partnership, or a limited liability partnership.

This is also why it's important to trademark and register certain names with the Secretary of State. It can substantially reduce the likelihood that occurrences such as the one above will happen. The Secretary of State's website contains a record search function where you can search for similar names that might result in a denial of your chosen name. In the end, Pied Piper resolved this matter when the company obtained written consent from the already established entity to use the name. In the show, that cost Pied Piper $1,000, but in reality that expense could be significantly higher.

ABA Journal reports former public defender wanted to trade sex for legal services. The only problem was the prostitute happened to really be a law enforcement officer.

There’s roughly 1-2 minutes of any professional responsibility course that livens the classroom into relative alertness. It happens when the professor (or bar exam lecturer, let’s be real), notes a comment under the provision that requires an attorney to charge fees that are fair and reasonable. The comment underneath requires an attorney to refrain from sexual intercourse with a client; and, if sexual intercourse begins during the attorney-client relationship, the attorney should withdraw if possible. The noise you just overheard was Michael Scott screaming, “That’s what she said,” from Scranton, Pennsylvania.

Everyone usually laughs – a few don’t, and those are the ones we should be really concerned about. Apparently, attorneys charged sexual favors for legal services at a sufficiently numerous rate that the ABA decided it was necessary to include as a comment under that rule. Even with that in mind, it’s just one of those things you don’t think anyone would really attempt. Aside from it being a form of prostitution, it also threatens to sacrifice a lawyer’s professional judgment for all the emotions and turmoil consistent with a sexual relationship with another human. Against all odds, lawyers don’t take rejection easily.

With all that said, bizarre does not even begin to describe an Indiana former public defender’s breach of that ethics rule – and the law. He texted a phone he knew to belong to a prostitute while law enforcement possessed the phone. Come on, man. That’s a law enforcement officer’s dream. A public defender – the attorney charged with the task of carefully scrutinizing and analyzing the constitutionality of police conduct – texted a prostitute’s phone in police possession.

Naturally, law enforcement set up a sting operation where an officer responded to the public defender’s texts as if she was the prostitute, and set up a meeting. At the start of the meeting, the public defender attempted sexual advances on the law enforcement officer. Whoooops.

The ethics rule is primarily concerned about the lack of professional judgment an attorney might provide when intermingled with a sexual relationship. The ABA does not have law enforcement powers – it’s most powerful threat is the ability to strip an attorney of his license to practice law. Once this attorney faces the gauntlet of criminal charges dealing with prostitution – it might be wise to hire an attorney – he most likely will not come back to his license to practice, though the market for his services might sufficiently take care of that on its own. 

The girl next door is hiding a dark secret - College students unwittingly ingest bath salts under the pretense that it’s Molly. Should we excuse their criminal acts that follow?

Newsweek published an article this week in the wake of a terrifying incident at Wesleyan College in Connecticut when 10 students at one party received serious medical attention after they thought they ingested Molly, a supposedly purified MDMA (Ecstasy). The drug spiked in popularity in the late 2000s, especially amongst college kids. The drug enhances elation and users frequently report elevated feelings of empathy and care. It makes you nicer, like the girl next door – Molly.

But as Max Kunter (Newsweek) reports, drug dealers use the false sense of security of Molly to market a significantly broader class of synthetic drugs that only 13% of the time contains any MDMA. DEA spokeswoman Barbara Carreno said that when college kids ingest what they believe is Molly, “[they] are really playing Russian Roulette.” As Kunter points out, what students actually take on occasion is a synthetic form of cathinones. If that sounds familiar, it’s because those are bath salts. The same bath salts that departed one Florida man so beyond the realm of reality that he decided to eat another man’s face.

The differences in Molly and bath salts are staggering. While Molly certainly has risks, namely dehydration and rapid increases in body temperature and heart rate, it also comes with notable benefits when under proper control, such as reducing fear and increasing empathy. That’s why research and development surrounding the drug has expanded to hopefully counter some of the evils of PTSD for returning servicemen and women. Synthetic bath salts, on the other hand, are quite literally poisonous. It causes paranoia, complete memory loss, increased heart rates, and death. And that’s just to the person who ingested the drug. The psychotic episode that follows can very easily turn a dark corner and threaten the safety of all those around the person.

So, what about those crimes committed when students intend to take Molly but instead involuntarily ingest bath salts? “The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability. State v. Williams, 296 N.C. 693 (1979). While that doesn’t apply to voluntarily ingested substances (drinking), it can apply to involuntarily taking drugs that leaves one’s mind without the capacity to consciously think and reason. Courts usually impute a ‘constructive’ knowledge on the defendant in these analyses. Judges want to know if the defendant knew, or had reason to know, that the ingested drug could impair his/her mental faculties in such a manner as leaving them without the ability to control their mind. State v. Highsmith, 173 N.C. 600, 605 (2005). In application to college students and Molly, perhaps it is possible with the right set of facts to offer that as a defense. They ingest a drug they think will increase their cognitive abilities to empathize and reason, but in reality ingest a drug that does the complete opposite. 

Fourth Circuit dismisses constitutional challenges to election law that required municipalities to choose between a partisan or nonpartisan method of candidate nomination.

The Greenville Republican Party, itself not a registered political party, challenged the constitutionality of a law that required the party to officially register before it could hold primaries for candidate nominations. The party challenged the law on First, Fifth, and Fourteenth Amendment grounds. Without weighing this post down with the legal merits of each, suffice it to say the party felt the law was a waste of time, money, and a dastardly infringement upon their right to assemble and speak freely.

Check out more about the challenge here.

Our interest for this post comes from the Fourth Circuit’s ruling because it dismissed their claim for injunctive relief as moot; and, in the process, the court shed light, however dim it might be, on what exactly entails repetitive behavior coupled with the possibility of evading review.

Standing in federal court is ongoing requirement. Just because a party has standing at one point during the litigation does not mean it will continue to have a case and controversy before a federal court through its end. If, for example, the petitioner no longer has the problem for which the party seeks a remedy once the court hears the case, there is no remedy the court can offer to rectify the wrong. It becomes pointless, or legally speaking – moot. Many call this the “live controversy” requirement.

There are exceptions, though, and the most notable of which in our nation’s history is the abortion controversy. Since a petitioner’s litigation in regards to abortion will likely last well past the period for viability, any claims involving injunctive relief for abortions will be moot once a federal judge, let alone an appellate federal judge, hears the case. It survives standing requirements, though, because the conduct is likely to happen again and will similarly evade review again, as the efficiency of the courts cannot compete with the efficiency of a child reaching viability.

 The requirement for showing a particular harm or conduct could repeat itself and evade review each time falls into the nebulous “reasonable expectation” of repetition field. The fourth circuit ruled that the particular conduct in dispute here did not meet that standard. From the point when the Greenville Republican Party filed the lawsuit to when the 4th Circuit Court ruled last week, the legislature acted to nullify the requirement in dispute. It is no longer necessary to register in that way for a candidate nomination. The court ruled it is outside an individual’s reasonable expectations for the state’s conduct to repeat itself, as it would be implausible to expect the harm to occur again and bring another individual to legal action (meaning the law would reverse itself), and then in the meantime of adjudication the legislature would pass another law to repeal the subsequently reversed law and allow the harm to run moot once again.

Twitter sucks, according to its head honcho.

Twitter’s CEO Dick Costolo issued an internal memorandum to its employees in an effort to address recent reports of trolls who harass Twitter users in appalling ways. "We suck at dealing with abuse and trolls on the platform and we’ve sucked at it for years,” he wrote. To them, it’s bad business. Twitter loses core user after core user after these types of attacks. To the users, it’s abuse and it’s illegal.

In the NC General Statutes, § 14-196.3 specifically lists cyberstalking as a criminal offense, and it applies to any defendant who uses the internet, email, or other electronic communication to stalk another person, generally referring to a pattern of threatening or malicious behavior.

It is also illegal to electronically communicate any knowingly false statement regarding death, injury, or illness of the person, or any member of the person’s family, with the intent to abuse, harass, or embarrass or allow an electronic device under the person’s control to be used for any prohibited act under cyberstalking law.

With that in mind, check out what one user had to endure. As featured on The American Life, Twitter trolls created a fake profile of Lindy West’s father who had recently died. They repeatedly posted cruel comments under the fake account directed at Lindy. That’s sick. Prosecutors in North Carolina could make out a case for two different statutory violations based on their conduct.

Twitter’s inability to control the actions of trolls who harass other users creates an atmosphere in which users fear the likelihood of repeated harassing conduct from other users. That does suck. It’s not only bad for business, but it also creates a place for harassment to occur. While it’s not possible to eradicate harassment in any form of communication, Twitter should do what it can to mitigate the possibility of these types of situations.

Here's what would happen if the Peaky Blinders had Facebook...

They would first publish a post on their newsfeed that signaled their intent to rob the store. They'd then follow up with the post and rob the store with a deadly weapon, most likely a dagger or razor blade fastened to the brow inside their hat. Then, after concluding the robbery, they would amble their way to the corner pub, casually. The only problem is that in 2015 the police caught on and made the arrest in the pub. Check out another friendly reminder to limit what you say on Facebook as it can disclose incriminating evidence against you. Here's the link.

FBI admits Stingray device might disrupt the cell service of surrounding third parties while in use to the possible detriment of their wellbeing during an emergency.

The Raleigh and Durham police departments reported last year that they use the Stingray device to investigate criminal activity, a device the FBI has held in relative secrecy since 1995.  A Stingray, formally call an international mobile subscriber identity (IMSI catcher) mimics the cell phone tower’s base station through which phone data ordinarily passes in an effort to collect such data for its investigative use.

While even narrowed and individualized use of the technology could come with grave privacy concerns, a larger issue with its use is that it scrapes the data from all surrounding cell devices in the subscribing scope of the search. Its expected widespread use, therefore, carries several issues that threaten criminal procedure safeguards grounded in the public’s reasonable expectations of privacy found in the 4th Amendment and parallel state constitutional provisions.

It gets worse. One of the ways the Stingray triangulates a suspect’s phone number or location is to downgrade the service connectivity from 4G or 3G to 2G. Wired’s Kim Zetter details this process in her article found here. At the lower level, the area’s cell phone users will be forced into roaming tower vulnerability, as opposed to when at the higher levels the users remain in a fixed location of vulnerability. The unfixed vulnerability allows the device to mimic the tower’s location and scrape the data for its investigative use. 

Why is that terrifying? It can actually disrupt service for surrounding customers while law enforcement operates the subscriber device. The FBI recently disclosed a warrant at the request of a defense counsel’s motion that admits as much. The admission makes it conceivable that the use of the device could imperil an innocent third party’s ability to notify emergency officials of imminent harm to person or property at the expense of law enforcement’s investigation.

The privacy concerns over the use of the Stingray device and its questionable constitutional character is almost so obvious that those countering criticism often speak of its net benefit to the public due to how it enhances law enforcement’s ability to protect the streets. Even that argument is now in jeopardy. The device can place individuals within the scope of its subscription in danger because it can disrupt service at those critical times when service could mean the difference in life and death. 

NC Legal News published an article written by Attorney Hastings wherein he discusses the state of courtroom technology in NC.

Attorney Hastings of Hastings Law & Counsel recently published an article in NC Legal News that discusses how the recent budget cuts that will only further cripple courthouse improvement is a step in the wrong direction for counties like Orange that are increasingly reliant on technology in their daily lives and interactions. Read more here.

Prosecution improperly authenticated Belk security footage and Court of Appeals mitigated the charge.

A recent North Carolina Court of Appeals case articulated a rule for authenticity that will make it difficult for prosecutors to authenticate video evidence in North Carolina trials. Authentication requires the person to lay an initial foundation that the video is actually what the proponent claims it is. I always think back to when we traded Michael Jordan rookie cards when we made sure the golden seal attached was one the card company actually created. At trials, there are specific hoops proponents must jump through to likewise show the video is actually an authentic depiction of the events in dispute.

That is not always a sure thing. In State v. Snead, video footage revealed defendant committing larceny. A regional loss prevention manager testified that he viewed the video after the theft took place, that the video recording system met industry standards, and that it watermarked the recording to prove the time and date of the incident. The trial court admitted the video and the jury viewed its contents. The problem? That foundation could not legally support admissibility of the evidence because we couldn't be sure it was what the proponent claimed it was.

Why? There was no chain of custody. North Carolina requires the proponent to lay a proper foundation for admissibility. This means the proponent must offer 1) testimony that the recording fairly and accurately depicts the events filmed; 2) testimony that describes how the recording transferred through the chain of custody for use in trial; 3) testimony that the photographs of the recording are the same as those the witness viewed after the theft; or 4) testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area photographed.

The foundation in dispute did not sufficiently explain what happened to the video recording after its recording and when the witness viewed it. The witness was not on location when the theft occurred, so it remains possible without a proper explanation of the chain of custody that Belk manipulated the contents of the photo before the regional loss manager viewed its contents. The prosecutor's foundation did not adequately account for that time gap and thus the Court of Appeals properly applied the law to those facts and ruled that the evidence could not withstand that weak foundation for admissibility at trial.

In the end, the Court of Appeals concluded that defendant still admitted to the crime during the investigation and therefore did not completely overturn the conviction; however, because the admission did not include the amount of theft, the lack of video evidence avoided a conviction as to an aggravating factor that made it previous to the appeal a felony conviction. Now the defendant is only convicted of a misdemeanor. 

The takeaway: There's a high danger with video recordings because they are easy to manipulate at the same time as very conclusive. A proper foundation is absolutely necessary to admit video recordings at trial due to that possibility.


Malware program threatens cybersecurity of Android devices with latest scam.

A new Malware program is in the forefront of news again. This time, the program attacks Android device users, makes it appear as if the phone is inactive/off using a dialogue box similar to the phone's default one, and then swipes data from the device during the ensuing period of nonuse with uninterrupted freedom to scan the user's data. Please be aware of this if you use an Android device and use elevated levels of caution if such a dialogue box appears. Jeremy Kirk, from PC World, reports on the program.