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Hastings Blawg

Is it legal to wear headphones while driving in North Carolina?

Taylor Hastings

Yes. Sort of. 

Though delayed from its original release date in October 2016, Apple still advertises its much anticipated "Airpod" headphones for release before the end of 2016. The headphones are wireless and boast speakerphone capability in its signature 'pod' design with competitive sound quality and comfortability. Apple lists the headphones at a retail price of $169.00, a price well in excess of its current wired version, but one on par with, or cheaper than, many headphones in the Airpod's prospective class.

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In anticipation of their release, I felt it helpful to answer a question I often receive at the various dinner parties I'm invited to and attend (just kidding, I'm not that cool): Is it legal to wear headphones while driving?. In North Carolina, the short answer is that yes, it is legal to wear headphones while driving. Many states in the nation have laws that regulate a driver's ability to wear headphones while driving - and many more ban it outright. North Carolina is not one of them. 

The reasons for banning the headphones are obvious, chief among them is that they substantially interfere with a driver's ability to hear and respond to emergency sirens or other roadway emergencies that arise while driving. That is why in California it is legal to listen to music in headphones while driving as long as only one pod is in the driver's ear and the other ear is open to hear and respond to emergency situations.

While no law in North Carolina specifically prohibits the use of headphones while driving, that does not mean drivers in the state can use them with impunity. For one thing, it should be noted that if any driver intends to travel beyond the jurisdiction of North Carolina, it may or may not be legal in the bordering state. (South Carolina - legal; Tennessee - legal; Georgia - illegal; Virginia - illegal). For another, and perhaps more salient thing, the effect of wearing headphones may cause a driver to violate already existing traffic laws in North Carolina. 

To extrapolate on the above-contemplated scenario, if a driver in North Carolina cannot hear emergency sirens, and fails to react according to specific statutory directions to allow an emergency vehicle to pass, that is against the law in North Carolina. 

N.C.G.S. § 20-157 sets forth as follows: Upon the approach of any law enforcement or fire department vehicle or public or private ambulance or rescue squad emergency service vehicle, or a vehicle operated by the Division of Marine Fisheries of the Department of Environmental Quality, or the Division of Parks and Recreation of the Department of Natural and Cultural Resources, or the North Carolina Forest Service of the Department of Agriculture and Consumer Services when traveling in response to a fire alarm or other emergency response purpose, giving warning signal by appropriate light and by audible bell, siren or exhaust whistle, audible under normal conditions from a distance not less than 1000 feet, the driver of every other vehicle shall immediately drive the same to a position as near as possible and parallel to the right-hand edge or curb, clear of any intersection of streets or highways, and shall stop and remain in such position unless otherwise directed by a law enforcement or traffic officer until the law enforcement or fire department vehicle, or the vehicle operated," by the state shall pass. [Emphasis Added].

A driver with headphones in runs a real risk of not being able to hear the emergency vehicle within 1,000 ft under normal auditory conditions, as the headphones would certainly move the condition from the realm of normal to abnormal. It puts a lot of faith in visual clues. Not only is a violation of the above-cited subsection a Class 2 Misdemeanor, it is also negligence per se, so apart from criminal culpability expected from its violation, it can also threaten to create significant civil liability should any injury happen as a result of the driver's failure to follow the statute's directions for oncoming emergency personnel.

What if injury does happen as a result? Well, that makes it a Class 1 Misdemeanor. Serious injury or death? That's a felony. 

As is often the case in the law, the short answer is very rarely the complete one. While no law specifically prohibits the use of headphones while driving in North Carolina, their use can substantially interfere with a driver's ability to comply with already existing traffic laws the violation of which carry serious consequences.

The Why of a Crime

Taylor Hastings

 

It’s not always easy to pinpoint what drives America’s fascination with true crime mysteries. Serial’s deep dive into the circumstances surrounding the death of Hae Min Lee only ignited this fascination, as millions downloaded Sarah Koenig’s podcast, and its listeners flocked to Reddit to bravely discuss their theories of how it all went down on a winter night in the outskirts of Baltimore on January 13, 1999. A jury convicted her ex-boyfriend, Adnan Syed, who has been in the state’s custody since law enforcement arrested him on February 28, 1999, but an appellate judge granted him a new trial in 2016 because his lawyer ineffectively assisted him during his trial. A kid, at 17, was a bright student with college acceptance letters rolling in already. There’s no doubt the intrigue begins with the difficulty many have in answering – why? Why would he kill her?

Legally speaking, motive is not an element of murder. The state bears the burden of proving each element of the charged criminal offense beyond a reasonable doubt. It follows, then, that the state is under no obligation to answer that question for you. It does not have to matter. It, of course, helps anyone understand a particular defendant’s actions, but the state must only prove the defendant did it on purpose beyond a reasonable doubt. The reason for this is not always obvious but it makes sense after considering the following.

Video footage shows a man pull a firearm out of his pants. His eyes lock onto his target. He aims, fires, and hits the person whom instantly dies. All of that is caught on tape. While it is clear the man purposefully shot and killed the intended target, the state might never ascertain his introspective thoughts as to why he killed this person. It nonetheless has substantial evidence showing the requisite level of intent for the crime through his deliberate actions. Simply, we often will never truly know why a crime takes place. Even in the rare occasion the defendant testifies or offers a confession that provides a rationale, the true reason is probably not disclosed and the one given is marred with inherent credibility issues the vast extent of which are beyond the scope of this post.

 

But that’s the thing. It’s the why that draws everyone in. It’s the why that gives it the folklore, as many attempt to extrapolate from their own experience to offer an explanation for events that will forever remain a mystery as to why.

Enter: Germanton, North Carolina in 1929. The mountains of North Carolina, with its tradition for folk and storytelling, is an apt home to its own notorious “familicide,” and the reason for its commission continues to elude all those involved.

On December 25, 1929, Charles Lawson sent his eldest son, who was 16, to go on an errand in the afternoon. While his son was away, Lawson proceeded to murder his wife and other six children, one of whom was only 4-months old. After shooting them with a shotgun, he bludgeoned them to ensure their demise, and then took care to neatly lay them to rest in a tobacco farm with their arms crossed and rocks under their heads as pillows. Hours later, Lawson shot himself in the woods behind his house. Nobody truly knows why he performed these acts; no one knows why he spared his eldest son. Many speculate that a former head injury unhinged primal desires he could not suppress; others suggest he impregnated one of his daughters and Lawson feared his wife and children would realize their impropriety. The site became a tourist attraction, musicians composed songs about the events, and family members wrote books attempting to explain what happened. Of course, none are conclusive – nor will they ever be.

As 2016 nears its end, the tragic events that unfolded on Christmas Day in 1929 remain in the collective culture of that North Carolina community. It’s the why that keeps it alive. It’s the why that feeds America’s true crime addiction. It’s the question, however, that will forever remain unanswered.

How to get Pokemon to ‘Go’

Taylor Hastings

Mom and Pop cafes and restaurants in France cannot seem to get these darn Pokemons out of their kitchens.

The pesky and surprisingly pugnacious Pokemon characters are all up in the grill of several businesses, literally, well virtually at least, and stirring up global disputes as to the means by which store owners can obtain relief from their virtual takeovers.

Mayor Fabrice Beauvois mailed a decree to The Pokemon Company in California to make sure it stops allowing the characters to invade his village northeast of Lyon, which is Bressolles, and is home to around 800 real people. This is all according Phillipe Sotto’s Associated Press report for ABC News.

As of the article, The Pokemon Company apparently had not responded to the letter, but it did note the possibility for businesses to designate their place as a Gym, or Pokestop, and that will prevent the characters from entering the business.

As Mayor Beauvois explained, “when a café or a restaurant owner wants to open a business in any French town, they have an obligation to request prior authorization to the mayor.” He is not pleased that Picachu, among others in his cohort, are invading these prior-authorized places in a usurpation of his authority.

The natural tendency is to compare these invasions to trespass, but as Michael Smith contends in this article, it’s actually more akin to nuisance.

The Restatement (Second) of Torts § 821D defines nuisance as a “nontrespassory invasion of another’s interest in the private use and enjoyment of land.”

Michael Smith compared this to a fascinating story right at the center of the USA. If you have a life, you probably did not know that the geographical center of the USA is precisely at 39.8333333,-98.585522. That’s in Kansas near the Nebraska border. Due to the uneven nature of those numbers, MaxMind rounded them down to 38 N, 97 W.  It used that point as its default location for its digital map, a location at which several IP addresses on phones and computers register if the mapping company cannot locate their actual location.

Those points also intersect in Joyce Taylor’s front yard in a small town in Kansas. There are over 600 million IP addresses associated with those coordinates. And, whenever any person using a device registered to that default address shares its location for any reason, however important, such as when a user contacts a suicide hotline, tracking agencies respond to Taylor’s residence. As such, frequent visitors included the FBI, not to mention other various emergency services organization responding to a live threat.

While MaxMind’s use of her front yard for its default IP location does not always result in a physical invasion of her property, it nevertheless causes an interference with her quiet use and enjoyment of that property, making it a nuisance, and not a trespass. In tort, the same can be said for Pokemon Go characters that cause a similar nuisance in the property and store fronts of business owners. Perhaps this is one mechanism by which businesses can reclaim their property should catching a Pokemon result in a disruption to their lawful business activities.

The amorphous boundary of individualized suspicion in the wake of U.S. v. Rodriguez

Taylor Hastings

The Fourth Amendment to the United States Constitution, which applies to state action by virtue of the Fourteenth Amendment’s Due Process Clause, guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

Not just any search and seizure.

The Fourth Amendment provides individuals freedom from unreasonable search and seizure, as “[t]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable.” Wilson v. Arkansas, 514 U.S. 927, 931 (1995).

The general rule is that the state cannot make an arrest of an individual without first obtaining a warrant for the arrest from a neutral and detached magistrate. To account for the complexities and complications of modern crime fighting in a nation hell bent on gun ownership, the Supreme Court ruled in Terry v. Ohio that law enforcement may detain an individual for a brief period of time pursuant to an investigation related to specific and articulable suspicions that the person is engaged in criminal activity. While stopped, and only within reason, law enforcement may frisk the suspect for the presence of weapons when there is reason to believe officer safety is at risk. Thus, the Terry “stop and frisk,” was born. Terry v. Ohio, 392 U.S. 1.

Because a traffic stop is more analogous to an investigative detention (Terry stop) than a custodial arrest, the law treats a traffic stop under the standard set forth in Terry for an investigative detention. In Terry, the Supreme Court presciently cautioned against the potential for stops of this nature to swallow the general rule that law enforcement must obtain a warrant prior to a custodial arrest. In order to retain the spirit of the Fourth Amendment, and with it an individual’s reasonable expectations of privacy, the Court set forth a two-step analysis for any investigative detention. First, courts must analyze whether the police officer’s action was justified at its inception. Second, courts must analyze whether the police officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop. Id.

As in the Fourth Amendment, “reasonableness” rules the day.

A traffic violation “provides sufficient justification for a police officer to detain the offending vehicle for as long as it takes to perform the traditional incidents of a routine traffic stop.” United States v. Branch, 537 F.3d 328, 335 (4th Cir. 2008). Right off the bat, any traffic violation will satisfy the first prong of a Terry analysis.

That does not mean law enforcement automatically satisfies the second prong, though. The traffic stop must be limited both in scope and duration. Florida v. Royer, 460 U.S. 291 (1983) (noting that the scope of a seizure “must be carefully tailored to its underlying justification.”). Scope requires that “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Id. Duration, meanwhile, requires police to diligently pursue a means of investigation that was likely to confirm or dispel their suspicions quickly. Id.

The tolerable duration of a traffic stop is for a time long enough for a reasonably diligent officer to complete its original mission. Rodriguez v. United States, 135 S. Ct. 1609 (2015). “Typically, such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Illinois v. Caballes, 543 U.S. 405, 408 (2005). While completing those tasks incident to the traffic stop, an officer may conduct other unrelated checks, but not in a way that prolongs the stop absent the finding of reasonable suspicion ordinarily required to stop and investigate an individual for suspected criminal activity. Id. Thus, absent reasonable suspicion, “authority for the seizure ends when tasks tied to the traffic infraction are – or reasonably should have been – completed.” Id.

According to the Court, the reasonableness of a police officer’s actions during a traffic stop turns on his diligence in accomplishing the purposes of stop, that is, investigating whether a traffic infraction occurred and issuing a ticket. Id. The “diligence calculus includes an examination of the subject matter of the unrelated questioning and whether the unrelated questioning was conducted out of concern for officer safety.” Id. at 495.

The reasonable suspicion standard is an objective one, as it requires the court to examine the facts within law enforcement’s knowledge to determine the presence or nonexistence of reasonable suspicion. Courts therefore “view the facts through the eyes of a reasonable, cautious officer, guided by his experience and training at the time he determined to detain the defendant.” State v. Myles, 188 N.C. App. at 47. In an effort to preserve an individual’s reasonable expectations of privacy, “the requisite degree of suspicion must be high enough,” to avoid “arbitrary invasions solely at the unfettered discretion of officers in the field.” State v. Fields, 195 N.C. App. 640, 744, 673 S.E.2d 765, 767 (2009).

Otherwise innocent facts might give rise to reasonable suspicion when the reasonable officer considers them collectively within the totality of the surrounding circumstances, but “the articulated innocent factors collectively must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied.” United States v. Digiovanni, 650 F.3d at 511. If the reasonable officer cannot eliminate a substantial portion of innocent travelers, the suspicions amount to a mere hunch that fails to establish the predicate reasonableness required under the Fourth Amendment to detain an individual. Should the officer detain an individual on a mere hunch after the officer completed the traffic stop, or reasonably should have completed it, then the subsequent investigation, however brief, unduly prolongs the detention in violation of the 4th Amendment.

Such was the position of the North Carolina Court of Appeals on May 5, 2016 in State v. Bedient, a decision that ruled an officer did not establish reasonable suspicion to detain an individual for longer than was necessary to complete the traffic stop – unduly prolonged, by the way, for just two question beyond the scope of the completed traffic stop. Click here for the full text.

In Bedient, the officer stopped the defendant at 11:30pm for the driver’s failure to dim her high beams. When the officer approached the defendant, he asked for her license and registration, in addition to sparking casual conversation during which the defendant revealed that the passenger in the car was her daughter. The defendant took 20 seconds to find her license. The officer observed that she was fidgety and reaching all over the car in odd places to look for her license. After a while, the officer recognized the defendant as one who was at the residence of a local drug dealer the night before when law enforcement investigated an unrelated incident. When she provided him her license, the officer went back to his patrol car and ran the license. He wrote the citation for her failure to beam headlights and then approached for the second time. While with her the second time, the officer provided her the citation; however, instead of informing the defendant that she was free to leave, he instead continued to ask her two questions: 1) whether she had ever been in trouble for anything, and 2) whether she had anything unlawful in her car. The officer obtained her consent to search the car through these questions and eventually found evidence to charge her with possession and paraphernalia.

The Court of Appeals ruled that the officer’s prolonged detention, which began the moment he asked her questions after which a reasonably diligent officer would have completed the traffic stop, was not supported with reasonable suspicion. The only two factors the Court of Appeals considered relevant to reasonable suspicion were the defendant’s nervousness in combination with her association with a known local drug dealer. North Carolina law is replete with examples where neither of those factors, standing alone, constitute reasonable suspicion.

When in combination, however, the facts still failed to meet the threshold burden to detain the individual any longer than would be necessary for a reasonably diligent officer to complete the initial task that justified the detention in the first place. The Court of Appeals reasoned that the combination of the two factors could give rise only to a “hunch” of criminal activity, not reasonable suspicion, because even when considered in tandem the factors would not “eliminate a substantial portion of innocent travelers,” necessary to avoid general, rather than individual, suspicion.

As a result, the Court of Appeals excluded the evidence obtained during the unduly prolonged stop, including any such evidence poisoned from the unconstitutional detention. This case is a recent example of life after Rodriguez, where there are no de minimis exceptions to the need to establish reasonable suspicion for any unrelated questions that go beyond the permissible scope of the initial traffic detention. It is therefore important to delve into the minutia of each case involving an officer’s decision to investigate a suspect incident to a traffic stop. Without reasonable suspicion to prolong the stop, the law is clear in its stance to exclude any such evidence found pursuant to the subsequent detention.

How to properly attribute another's work in compliance a Creative Commons license

Taylor Hastings

Copyrights often protect an author's original work. They restrict another's ability to share, distribute, or use the original author's intellectual property. There isn't much of a middle ground. A Creative Commons license fills that void. Here's how to properly attribute another's work with one.

  1. Identify the Author

    The first requirement to use another's work with a Creative Commons license is to give the author credit. This includes a pseudonym or username if applicable. Also, if the user originally published the work on a platform with a username, the license will likely require you to disclose the username and provide a link to the user's profile.
  2. Identify the Title

    If the author originally published the work with a title, then a proper attribution will include the title to the work. Like the requirement above, if there is an online link to the original work with the Creative Commons license, then you must provide that link in your attribution as well.
  3. Identify the Creative Commons License Type

    There are several different types of Creative Commons licenses that range in free use ability. It's important to identify the one attached to the original work in the attribution. The original Creative Commons license could incorporate any of the following conditions: Attribution (you can distribute and make derivatives as long as you give the author credit); Non-Commercial (You cannot distribute for any commercial use); No Derivative Works (You can distribute but only a verbatim copy of the original work); and Share Alike (You can distribute but only under a license identical to the one attached to the original). The Creative Commons license can attach different conditions depending on the author's specifications, except a license cannot have both a Non Derivative and Share Alike condition.
  4. Identify any Copyright Notices

    The original work might still include applicable copyright notices that the author will want you to include in your attribution. This is usually when the original author wants to provide credit to another party used in the original work. Be careful to include that attribution as well in your distribution.