Charlotte Criminal Lawyer Blog

CMPD Announces Major Surveillance Expansion

Published on: December 17, 2012 | On behalf of Arnold & Smith, PLLC

In a somewhat frightening attempt to create a comprehensive surveillance network across the county, Charlotte-Mecklenburg police have said that they want access to private businesses’ security cameras which would allow them to actively monitor the happenings at malls, gas stations and banks.

Though the CMPD has not yet said how many cameras this will mean in total, the move represents a major change for the department and a huge expansion in the scope of its surveillance capabilities. CMPD only started using cameras 12 years ago and the latest move would dramatically increase the number of locations under watch by the police department. Police currently have access to about 650 cameras. Though that seems like a lot, the department points out that Chicago, which is four times bigger than Charlotte, has access to 10,000 cameras.
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Already, the police have access to some private cameras in the Charlotte area. These include the Time Warner Cable Arena, the Bank of America stadium as well as all the major bank buildings. By expanding the reach of their camera system, the police believe this will allow them catch many more criminals and prevent crime from taking place.

However, the police fail to acknowledge any of the downsides, including that the cameras could collect more images of people who have done nothing wrong. Moreover, this video of innocent people will then be stored on police servers for weeks or months in the future, providing a database for the department to should they have an interest.

Police Groups Lobby Cell Phone Carriers to Hang on to Text Messages

Published on: December 11, 2012 | On behalf of Arnold & Smith, PLLC

The major cell phone providers, including AT&T, Verizon and Sprint, may be required to keep information about their customers’ text messages for at least two years according to a proposal that various law enforcement agencies submitted to Congress.

A group of different police organizations asked legislators to require wireless companies to retain information, warning that a lack of federal requirements leaves a major hole in the ability of law enforcement agencies to launch proper investigations. The move was designed to include text message retention in an upcoming overhaul of the 1986 Electronic Communications Privacy Act, a privacy law meant to reflect the new realities of the modern technological era. Cell Phone.jpg

As text message usage has exploded recently so have the instances of their use in criminal investigations. They have been used as evidence in robberies, drug dealing and financial fraud cases. One great example occurred in 2009 when SkyTel turned over a whopping 626,638 text messages in Michigan.

Armed Robbery Gets North Carolina Man 176 Years Behind Bars

Published on: December 11, 2012 | On behalf of Arnold & Smith, PLLC

According to a recent article by WCNC, a federal judge has sentenced a Goldsboro, NC man to 176 years in prison for his role in multiple robberies that took place across several months in eastern North Carolina.

The U.S. Attorney’s office announced earlier this week that Domonic Devarrise Usher had also been ordered to pay $14,000 in restitution for his crimes. The massive sentenced followed a guilty verdict back in July on charges related to the robbery of several stores in small towns throughout the eastern portion of the state. Prosecutors say Usher and five others robbed businesses between November 2009 and March of 2010.

Razor wire.jpg Testimony presented at trial revealed that the robbers would enter stores wearing bandanas, gloves, hats and dark clothes to obscure their identities. One of the men would then point a gun at a clerk while the others grabbed the cash drawer from the register or safe, whichever was most easily accessed.

Though the 176-year sentence is quite long, the crime of robbery with a dangerous weapon is a very serious crime in North Carolina. The presence of a gun during a robbery and the resulting endangerment of a victim’s life increases by several magnitudes the severity of the punishment faced by defendants. North Carolina General Statutes § 14-87 states:

New North Carolina Cyber-bullying Law Goes Into Effect

Published on: December 6, 2012 | On behalf of Arnold & Smith, PLLC

Nearly two-dozen new laws went into effect on Saturday including one important item that extends a North Carolina crime against cyber-bullying to also provide protection to school employees.

The new law will mean that students who use a computer to intimidate or threaten school employees will face criminal penalties. Existing laws in the state already made it illegal for cyber-bulling to target other children. The new law makes it a misdemeanor for students to commit various online offenses against school employees, such as creating false profiles, signing them up for Internet porn or posting personal images and private information.

The roots of the new law began about five years ago when a teacher in Charlotte-Mecklenburg Schools discovered that someone had created a fake MySpace page in his name and posted material implying he was a pedophile. Charlotte-Mecklenburg School investigators traced the profile to students at Providence High and charged those students with cyber-stalking.

Delayed Release from Jail Causes Charlotte, NC Judge to Dismiss Drunk Driving Charges

Published on: December 4, 2012 | On behalf of Arnold & Smith, PLLC

Brad Smith, a partner here at Arnold & Smith, made the news recently when it was announced that prosecutors in Charlotte, NC decided to appeal a judge’s decision to throw out the drunk driving charges filed against Tim Newman. Neman’s case made headlines earlier this year when the former chief executive of the Charlotte Regional Visitors Authority was arrested after an accident on I-77 in May.

Assistant District Attorney Emily Kraper filed the appeal, writing that she believed District Judge Kimberly Best’s decision was “contrary to the law.” Kraper went on to say that the government thinks there was enough evidence to overcome Newman’s motion to dismiss and eventually convict Newman of driving while impaired.

Reports of Sexual Abuse on the Rise in Charlotte, NC

Published on: November 22, 2012 | On behalf of Arnold & Smith, PLLC

According to a recent report by Fox Charlotte, an increase in the number of high profile sex crimes investigations nationally has led to a rise in reports of child abuse cases here in North Carolina. Experts say incidents such as the Penn State debacle along with the Boy Scouts have had an impact that can be felt right here in Charlotte. Hands Covering Face.jpg

The Council for Children’s Rights says there were just over 13,300 reported child sex abuse cases in Mecklenburg County last year. That’s a big number and it’s on the rise, in fact, it’s up nearly eight percent from the 12,300 cases that were reported in 2010.

Experts believe that because people are watching other victims come forward and tell their stories it has given victims here in North Carolina the courage to come forward and confront their abusers.

Given the anger felt by many after hearing tales of the abuse inflicted at the hands of some, families of some victims are trying to increase the power of Jessica’s Law. The 2008 law increased penalties for adult offenders who commit certain sex crimes against children. The law required that offenders convicted of certain sex crimes against children or of sexual violence must remain on a state registry for 30 years, up from the previous requirement of 10 years. It also shortened the time period that offenders had to register with their local sheriff’s office and extended zones around schools and churches where offenders were not allowed to live.

U.S. Supreme Court to Consider Exception to Double Jeopardy Rule

Published on: November 16, 2012 | On behalf of Arnold & Smith, PLLC

A recent case before the U.S. Supreme Court will result in a clarification regarding rules of double jeopardy in the criminal justice system. The case involves a man, Lamar Evans, who was acquitted of burning down a vacant house after the judge presiding over his trial incorrectly required prosecutors to prove more than they had to.

According to Reuters , the Supreme Court must now decide whether Evans can be tried again for the crime following the botched first attempt. A decision will likely have to wait until the end of June, but it could be an important one, creating an exception to what has been a steadfast rule against suspected criminals being tried twice for the same crime.
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When the hearing was conducted last week week, the justices appeared torn over how to balance the protection afforded by the double jeopardy rule against the danger of setting guilty people free by refusing to allow prosecutors to try the case a second time.

Chief Justice John Roberts said that he always understood the rule to require that prosecutors get one fair shot to convict someone. However, he said, “It does seem to me that if they had been thrown out of court because of a legal error, it’s not a fair shot.” Justice Elena Kagan asked whether the defense attorney’s client might have gotten a “windfall” through a wrongful acquittal. “Your client walks away the winner when he shouldn’t have,” she said.

In Evans’ case, two officers in Detroit caught him in 2008 running with a can of gasoline away from a burning house. Investigators later found that gas had been poured across various rooms to accelerate the fire. Evans’ lawyer at the time pushed for the judge to instruct prosecutors to prove that the house was a dwelling at the time of the fire, even though state law did not require such evidence. The government was unable to meet the burden of proof and the judge then said that Evans was acquitted.

The Michigan Supreme Court later ruled 4-3 that Evans should be retried because the original acquittal was based on an error of law that did not address the facts of the specific crime. Because the problem was a legal one and not a factual one, the Michigan Court said there was no double jeopardy problem.

Scrap Metal Theft Receives Attention from NC Legislators

Published on: November 1, 2012 | On behalf of Arnold & Smith, PLLC

It must be true what they say; one man’s trash is another man’s treasure. Though it may not sound particularly tragic, North Carolina is evidently gripped by an odd crime wave. The number of scrap metal thefts has skyrocketed across the state recently and legislators have taken action to solve the problem. Law enforcement officials across the state are hoping a recent state law that took effect on October 1st of this year will help reduce recent increased incidents of scrap metal theft.

Though the problem might not seem like such a big deal, such metal theft rings have grown enormously in recent years. Post #2 criminal image 11-7-12.jpg The bad economy and rising commodities pricing has forced many people to consider stealing metal for even the little amount of money it can bring them.

The change may seem sudden given that legislators have altered the state metal laws only two years ago, but the recent changes to the Metal Theft Prevention Act are meant to further discourage the crime. Under the existing state law, people attempting to sell old scrap metal have to provide valid government identification. The newest iteration of the law goes one step further in saying that sellers must now have their picture taken with the products they are attempting to sell.

Since the new law went into effect, officers are saying they have seen a decrease in the number of reported metal thefts, as those attempting to turn the products in for money are wary of having to pose for a picture with stolen goods.

Under the updated law, police have the right to stop by and check scrap yards to ensure they are complying with the newest laws whenever they want. Though legislators wanted the increased power to crack down on metal thefts, the broad powers seem like overkill to others who worry about police power to constantly intrude in the scrap metal business.

Another component of the recent change grants law enforcement officials more discretion in deciding what charges they can bring against suspected criminals. Before the implementation of the new law, criminals faced misdemeanor larceny charges for whatever they stole. Now, if they cause damage to the property they steal from, they also could face felony charges.

Property damage valued between $1,000 and $10,000 could result in a Class H felony. If convicted, an offender could be sentenced to between five and 20 months in prison. Damage estimated to be more than $10,000 would be a Class F felony, carrying a sentence of one year and one month to two years and 11 months in prison.

ACLU Attacks Justice Department for Keeping Innocent North Carolinians in Prison

Published on: October 30, 2012 | On behalf of Arnold & Smith, PLLC

The ACLU recently launched an attack against the Justice Department for continuing to keep innocent people locked up in jail. The civil rights organization said the government has continued keeping some people in prison despite knowing that they have not committed any federal crime.

An investigation conducted by USA Today earlier this year revealed that there were some 60 people behind bars on gun charges despite rulings from lower courts saying they never committed a federal crime. Post #1 criminal image 11-7-12.jpg The Justice Department originally argued the people should remain in federal prison regardless, but has since changed its mind.

The issue that led to the trouble is that federal law bans people from having a gun if they have previously been convicted of a crime that could have put them in prison for more than a year. In North Carolina, however, state law sets the maximum punishment for a crime based on the prior record of whoever committed it, meaning two people who committed the same crime could face vastly different maximum sentences.

For years, federal courts there said that this difference did not matter. If someone with a long record could have gone to prison for more than a year, then all who had committed that crime are felons and cannot legally have a gun, the courts said. But last year, the Fourth Circuit Court of Appeals said judges were wrong, instead they ruled that only those people who could have faced more than a year in prison for their crimes qualify as felons. The decision meant that thousands of low-level criminals never broke federal law by possessing a gun.

Since the investigation, federal judges in North Carolina ordered the government to release at least 22 inmates. This was one of the largest incidents of overturning federal convictions in recent memory. Reports indicate that at least 10 other former prisoners were freed from supervised release, and dozens of other federal inmates from North Carolina remain waiting for a judge to decide whether their convictions must also be overturned.

Despite what seems like good news for the inmates who have been awaiting their release, a recent letter from the ACLU of North Carolina reveals that U.S. Attorneys’ offices continue to stall the process, causing delays in the release of deserving prisoners. Defense attorneys have raised 17 cases claiming that their clients are innocent but the government prosecutors continue to fight all but five of the cases.

The problem with this behavior is that it leads to the continued incarceration of innocent people. Prosecutorial inaction can be as damaging as prosecutorial misconduct, as this instance demonstrates. Even though the government could have easily notified the inmates whose convictions ought to be overturned, they never did so. As a result, the burden of identifying those who have been wrongly incarcerated has fallen on defense attorneys.

CMPD Launches New DWI Enforcement Campaign

Published on: October 28, 2012 | On behalf of Arnold & Smith, PLLC

The Charlotte-Mecklenburg Police Department recently kicked off a “Booze It or Loose It” campaign and this one is set to coincide with the year’s Halloween festivities. The purpose of the new enforcement effort is to crack down on drunk drivers during what can be a busy season. The campaign will be in effect until the day after Halloween and indications are the police will round up hundreds of drivers.

Numbers are in for the first few nights of the drunk driving enforcement push and the CMPD has said that they set up a DWI checkpoint on the 4900 block of Providence Road. The checkpoint was only in place for five hours yet it managed to produce 53 arrests, 8 of which were on DWI charges. Post #1 criminal image 10-30-12.jpg Police had a similarly busy second night, with a checkpoint on the 6100 block of Brookshire Boulevard leading to 64 arrests, 10 of which were DWI-related.

If you ever find yourself caught up in such a checkpoint there are some important tips to remember. First, place both hands on the steering wheel in plain view of the officers. It’s important that officers see that you do not pose a threat to them. Second, be nice and cooperative as there is no reason antagonizing the officer, it will only exacerbate your situation.

Next, remember not to make any unnecessary statements. When you are pulled over the officer will ask for your license and registration as well as some basic personal information. All of this is fine to give them. However, as more specific questions that relate to drinking are asked, it’s time to remember your right to keep quiet. Don’t be rude, but politely tell the officer that you have been advised not to answer such questions and that you would like to exercise your right not to.

If the officer continues the investigation, field sobriety tests are next. It’s important to know that you do not have to take these tests. If you refuse to take them, the fact that you refused may be used against you at trial, but you will not lose your license for refusing to take a field sobriety test. If you do decide to take the tests, make sure to listen to the instructions and follow them carefully. Any failure to follow the instructions will be used against you as a sign that you are impaired.