Your right to privacy in the digital age

In 1976, the United States Supreme Court created a rule that, if strictly applied today, would destroy privacy as we know it.  The 1976 case was Miller v. United States, in which the Court held that people have no Fourth Amendment right to privacy in their bank records because those records were disclosed to a third party (the bank).  This rule, known as the third party doctrine, essentially established that constitutional privacy rights depend on absolute secrecy of information.  Any information disclosed to a third party, regardless of the purpose of the disclosure, is not protected by the Fourth Amendment.

Think: every gmail you draft is disclosed to google, so even your private thoughts, your drafts, your rants that you never even dreamed of sending are not “secret” and thus not private under the third party doctrine.  Every television show you watch, every website you visit or search term you enter, and virtually every place you visit while carrying your cell phone, since your phone’s location is logged somewhere on the internet and/or by your cell phone service provider—all of that information is disclosed to a third party and thus is entitled to no Fourth Amendment protection under a strict application of the third party doctrine.

Fortunately, courts have begun to recognize that, as Justice Sotomayor wrote, “[t]his approach is ill-suited to the digital age[.]”   Even at the time of its creation Justice Marshall refused to buy in, saying that he “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

The North Carolina Court of Appeals had an opportunity earlier this year to bolster privacy protections in the digital age in State v. Perry.  Unfortunately, in writing for the majority, Judge Tyson went back to 1976, holding that a person has no reasonable expectation of privacy in their cell phone’s location information once that information has been obtained by the cell phone service provider—a belief that would startle most cell phone users.

As we increasingly interpose technology into our daily routines—wearing fitness bands and Apple watches, for example—the law will need to adapt to “assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”  That is, after all, the underlying principle of Fourth Amendment jurisprudence.  Hopefully the North Carolina Supreme Court will look toward the future, rather than 50 years in the past, in considering whether to uphold or reverse Judge Tyson’s decision.



Elliot S. Abrams is a Raleigh criminal defense lawyer with the law firm Cheshire Parker Schneider & Bryan, PLLC.  Elliot represents people charged with federal and state criminal offenses, public officials targeted by government ethics investigations, and licensed professionals facing professional discipline. Elliot cares deeply about his clients and stands up for them in and out of court.  If you or a loved one are in need of legal help, feel free to call him at 919-833-3114.


3 Common Questions in a Family Law Initial Consultation

The first step in hiring an attorney to represent you in a family law case is usually accomplished by an initial consultation. The purpose of the initial consultation is to get information about whether you need an attorney and to see if you like the attorney and can work well with the attorney. Your attorney will be someone you need to work with closely during your case, so you need to be sure you can get along with the attorney.

In a family law case, there are potentially five issues that need to be addressed at the initial consultation: divorce, child custody, child support, spousal support and equitable distribution. Under North Carolina law, a divorce is only available after you have been separated from your spouse for one year. The other issues may or may not be applicable to your case. For example, if you do not have children, there is no need to discuss custody or child support.

Aside from meeting the attorney (and the attorney meeting you), the purpose of the initial consultation is to determine what type of representation you need. The attorney will generally ask questions about the facts of your case, then discuss the how the law applies to your facts, and finally go over the options you have in moving forward. Since every family’s set of facts is different, the approach taken in a particular case needs to fit those facts. If you and your spouse already have a verbal agreement, you may only need the attorney to draft your settlement documents. On the other hand, if you and your spouse cannot even have a discussion, the attorney will need to be heavily involved.

Aside from the legal issues to be discussed at the initial consultation, there are three questions which are commonly asked:

  1.  How much will this cost? This is a very difficult question to answer. The cost of a family law case depends on many factors. One factor is how many issues need to be dealt with. Another factor is whether you and your spouse can talk to each other and work out any issues in a settlement. If every issue will result in a dispute and having to go to court, the cost will be much higher. Also, if the issues involved in your case are complicated, such as a large marital estate to be divided, the cost could be higher.
  1. How long will this take? This question is very similar to the question about cost. If every issue in your case will be disputed and you will have to have a full-blown trial, the length of time is likely to be much longer. If you and your spouse agree to be reasonable and discuss the issues or go to mediation, the issues could be resolved fairly quickly.
  1. Will I have to go to court? It depends. Are there issues involving potential danger to your children or is your spouse selling property or draining money? If so, then you may need to go to court immediately to get in front of a judge. Generally, the best result is one where you and your spouse can work things out in a settlement. This could be accomplished by going to mediation or negotiations through your attorney. While going to court is usually the last result, sometimes it is a necessary step.

One tip: write out all of your questions ahead of time and bring the list with you. It is perfectly natural to be nervous when going into the consultation. However, the initial consultation in a family law case is a necessary first step towards getting your issues resolved.

Myers Law Firm, PLLC is based in Charlotte, NC and represents clients in the areas of family law, personal injury and civil litigation.  Contact us today to see how we can help you at, 704-376-3000 or

Do Black People Commit MORE Crime?

“Mass incarceration disproportionately affects racial minorities.”   North Carolina Advocates for Justice Board of Governors [full text]

 The Numbers.

Nearly 7 million people are in prison, in jail or under supervision in the United States. It is estimated that we spend more than $70 billion per year on them. That is a ratio of 7:70 or 1:10. For every 1 million prisoners, this country spends $10 billion on them. Contrast that with Charlotte, NC in Mecklenburg County – a county with a population of 1 million people and a county budget less than $2 billion.

In comparison, it costs $8 billion more to put people in small concrete cells to rot, than it does to operate the nation’s second largest and vibrant banking town! But the criminal justice system is not sustainable. Did you know that it is expected to go bankrupt by 2050? That’s not that far away.

Still, of these 7 million people, African Americans make up a disproportionate majority. Here in North Carolina, 57% of the prison population is African American, although they make up only 22% of the state’s population. It got me thinking “why are there so many black people in prison?”

A recent online anonymous post read like this: “if you don’t want to go to prison, then don’t commit crime.” It must follow then that if black people are overrepresented in the system, then ipso facto, blacks must be committing more crime. But I wonder if America really believes this?

A Question Amongst Friends.

A few months ago, I was at lunch with a group of white friends. One of them asked me as a public defender if my clients were mostly black. She continued “because when I turn on the TV and watch the news, all I see are the faces of young black males. No matter the crime, it’s always a black face.” Others agreed with her. The collective thought was that black males are in prison because they commit more crime. I guess America does believe it.

But over time, I began to wonder if this was just flawed circular reasoning. Do high prison numbers mean more crime and vice versa? Ultimately, I wondered “do black people commit more crime?”

Well, before I answer this question, I wonder if you will take a journey with me down “inquiring minds want to know” lane.  I need to answer first, what is crime? Second, who commits it more? Third, is this the reason black people are overrepresented in the system?

What is crime?

Something does not become a crime simply because you get caught. Rather, crime is doing an illegal act, whether you get caught or not. Smoking marijuana is a crime. Drinking and driving with a BAC of 0.08 or higher is a crime. Taking paper clips and pens from work for personal use is a crime. The list of crimes goes on. Let me ask you, have ever done something illegal?

Who commits it?

Picture a drug dealer. Go ahead. What does he look like? Are his clothes baggy? Skin complexion light or dark? Is the person you pictured a black male?  Most people say “yes.” Let me ask you another question. If you have ever used drugs, who gave you those drugs? Most people say it came from someone white.

As a college professor, I ask my class of predominantly white students to raise their hands if they have ever used drugs, gotten into fights, used alcohol before the age of 21, threatened to harm another, or touched someone inappropriately/sexually?  Sad to say, every hand is raised.

Are we naïve enough to believe that crime somehow stops when these folks enter the workforce? Unfortunately, drug abuse, domestic violence and employee-related thefts occur every day. But this is no surprise to you – you know this is happening. And isn’t corporate America predominantly white?

Would you believe me if I said that white people commit MORE crime than black people? Well, over the past 20 years, there has been a 130% increase in drug crimes committed by whites. Alternatively, there has been a 50% decrease in drug crimes committed by blacks. Statistics generally inform us that white people commit more crime overall.

Why are black people overrepresented in the system?

As logic would have it, my lunch buddies believed that more crime is the reason for high prison presence. But even though whites commit more crime, blacks are overrepresented in the system. So why are blacks sent to prison more than whites?

Back to the drug scenario, all communities are suffering from drugs and overdoses.  However, when whites started to get arrested at disproportionate numbers, the criminal system responded, rather quickly, by creating treatment programs and new laws as alternatives to incarceration and convictions. Consequently, my white clients were directed down the path of treatment while my black clients continued down the path of incarceration.

The result is inevitable. Don’t just take my word for it … look to your own community to see who is filling the treatment facilities and who is being incarcerated. We call white drug users “addicts” and black drug users “criminals.”  And addicts get treatment; criminals go to prison. That is our harsh reality.  But why, pray tell, are blacks mass incarcerated? Well, at least for now, we know it is not because they commit MORE crime.


We face a major problem, America. This is not just a black problem. It is an American problem. And we cannot incarcerate our way out of it.


Written by Toussaint C. Romain an Asst. Public Defender in Charlotte Mecklenburg County. He represents Habitual Felons, Robbery, Drug Sales, Breaking & Entering, Serious Assaults and more. Mr. Romain is also an Adjunct Professor at the University of North Carolina at Charlotte, teaching a constitutional law course. Mr. Romain volunteers and serves in several capacities in his community at various levels. To contact Mr. Romain email him at or call him directly at (704) 686–0969.

Benefits for Disabled Veterans (part 2)

In addition to benefits from the Veterans Administration, a disabled Veteran may also be eligible for benefits from the Social Security Administration.

Social Security Benefits for Veterans

A Veteran should apply for Social Security benefits if they either have been unable to work for the past year or when their health is expected to keep them out of work for at least a year or end in death. No one has to wait to be out of work for an entire year before applying. The Social Security Administration considers all medical problems a Veteran has when making a disability determination.

There are two types of Social Security benefits – Social Security Disability Insurance benefits (a.k.a. “SSDI” or “Title 2” benefits) and Supplemental Security Income benefits (a.k.a. “SSI” or “Title 16” benefits). SSDI benefits are available to Veterans who have worked significantly in five of the past ten years. Active duty military service does count for significant work. The amount of the SSDI payment depends on how long a Veteran has worked and how much they have earned and paid into Social Security through payroll taxes. Qualifying for SSDI will mean that the Veteran will have access to Medicare to help pay for medical treatment once a twoyear waiting period has passed.

SSI benefits are available to Veterans who do not have enough work credits to qualify for SSDI. A Veteran must meet the low income and asset requirements to qualify for SSI. The maximum SSI payment is just over $700 a month. Benefits are reduced if the Veteran lives with someone who helps pay expenses or if they live alone but someone else provides housing or other living expenses. A Veteran who qualifies for even $1 of SSI each month also qualifies for Medicaid benefits to assist with paying for medical care.

It is possible to receive both types of Social Security benefits. If the SSDI payment is lower than the payment for SSI would be, then both benefits will be paid, with a total up to the maximum SSI amount. It is also possible in many cases to get both Social Security benefits and benefits from the Veterans Administration.


Elizabeth Lunn is a partner at Lunn & Forro, PLLC. The firm limits its practice to representing disabled individuals seeking Social Security and Veterans benefits. For more information about qualifying for benefits, you can contact the firm at 888-966-6566 or download the free Social Security Disability guide on the firm’s website.

Caveat emptor. Buyer beware.

Recently, our firm got a call from a feisty older lady who didn’t ask for a meeting – she demanded one. She had purchased a car a few months earlier and had come to believe she’d been ripped off.

And she was right. She had been ripped off. There was just one problem – it probably wasn’t illegal.

Our client, Ms. D, had gone car shopping in early May, after her old Toyota Camry breathed its last and could not be resuscitated.

Ms. D and her husband had seen ads for a car place not far from their home and went car-shopping on a Saturday afternoon.  By early evening, they had signed the papers on a 2006 Ford Taurus with 120,000 miles on it.

The price tag? Get ready for it.    Including their down payment, advance payments and the trade-in of the Camry, they were on the hook for more than $12,500, financed at an astonishing 19.49 percent interest rate.   The Blue Book value for the car: $4,000.

Ms. D said she and her husband returned to the dealership the following Monday to pick up the car and discovered their signatures from the previous Saturday had been notarized by a woman they had never met. She had a sinking feeling she’d made a big mistake.

Lucky for Ms. D, the owner of this particular dealership is not a complete charlatan. He explained that he frontloads the value of the cars he sells to make up for the incredibly high default rate of his customers. He charges everyone the 19.49 percent interest rate. But he provides super cheap maintenance and repairs to his buyers (let’s face it: to keep the cars running for the full life of the loans.)  Basically, he maintains, he is providing a service to people who would not otherwise qualify for a car loan at all.

We could argue over his largesse all day long. But technically, what he was doing wasn’t illegal.  Our client, Ms. D, wasn’t the dealership’s typical buyer. She and her husband had gone through a bankruptcy many years earlier but otherwise had pretty good, if limited, credit.

After I contacted him, this dealer agreed to unwind the deal with our client, returning her money and removing the purchase from her future credit reports.

Ms. D took the cash and put a down payment on a 2012 Honda, and the credit union gave her a loan for the rest at 4.5 percent.   A happy ending to be sure. But a reminder too: When something doesn’t seem right, stop and listen to that voice. Check it out. Shop around.  And always, always remember: Caveat emptor. Buyer beware.

Blog post author Ruth Sheehan is an Associate Attorney at The Francis Law Firm, PLLC in Raleigh, NC and a former reporter and metro columnist for The News & Observer.      

Benefits for Disabled Veterans (part 1)

There are several types of benefits that may be available to Veterans who cannot work due to their physical and/or mental health.

Veterans Compensation

Veterans who have health problems that are service-connected should file for Veterans Compensation benefits. VA Compensation is a non-taxable payment available to any Veteran, even if they are still able to work. In order to qualify, the Veteran must show that their medical or physical problem either started while they were in service, was caused by their service, or if it existed prior to service, that the condition was made worse by their service. Many people think of service-connected disabilities as combat related. But any condition that started while on active duty service can qualify. For example, an injury that resulted from a bad landing during a parachute training exercise can be service connected. Injuries from a car accident while on leave can also be service connected. A Veteran with a mental health conditions such as depression and PTSD may be eligible for compensation payments.

Payment amounts for Veterans Compensation depend on the type of condition and the severity. A condition is assigned a rating from 0% to 100% and the payment amount goes up accordingly.  Veterans who have a rating less than 100% but who are unable to work due solely to service-connected conditions may qualify for Total Disability Individual Unemployability (“TDIU”). Veterans who receive TDIU benefits are paid at the 100% rate.

Non-Service Connected Pension

A Veteran may qualify for a non-service connected (“NSC”) VA pension if they are unable to work, but the inability to work is not due to service-connected conditions. For example, a Veteran who suffers serious injuries in a fall and can no longer work, but the fall occurred after their discharge from the military, may apply for a NSC pension. To qualify, a Veteran who entered military service prior to September 7, 1980 must have served at least 90 days on active duty and at least one of those days had to be during a period of war.  The Veteran need not have served overseas or in combat. If a Veteran entered service after that date they must have served at least 24 months or half of their required time in addition to serving at least one day during a period of war.

Periods of War

  • World War II (December 7, 1941 – December 31, 1946)
  • Korean conflict (June 27, 1950 – January 31, 1955)
  • Vietnam era (February 28, 1961 – May 7, 1975 for Veterans who served in the Republic of Vietnam during that period; otherwise August 5, 1964 – May 7, 1975)
  • Gulf War (August 2, 1990 – through a future date to be set by law or Presidential Proclamation)

Veterans must also meet low-income and asset requirements for this benefit. The benefit payment amount is higher than SSI benefits from Social Security, so any Veteran who meets the requirements for service during a period of war and is on SSI benefits from the Social Security Administration should apply for this benefit. Typically the Veteran will receive the NSC pension instead of SSI payments.

Elizabeth Lunn is a partner at Lunn & Forro, PLLC. The firm limits its practice to representing disabled individuals seeking Social Security and Veterans benefits. For more information about qualifying for benefits, you can contact the firm at 888-966-6566 or download the free Social Security Disability guide on the firm’s website.

Taking a Plea

If TV legal dramas were an accurate guide to our judicial system, the moment of reckoning for a criminal defendant would be in a courtroom after a jury returns with a verdict. But that’s not how it usually works. Most people charged with felonies never see a jury. In North Carolina, all but a small proportion of felony convictions are the result of guilty pleas. In fact, in the 2013-2014 fiscal year, only about 600 felony convictions in North Carolina came at the end of a jury trial. Over 27,000 convictions – 98 percent of the total – were obtained through guilty pleas.

There is no doubt that a negotiated guilty plea can be an ideal result. Guilty pleas save the court system time and resources, and defendants often benefit from the reduction or dismissal of some charges.

However, defendants who enter guilty pleas also forfeit certain rights. The most obvious ones are the right to a jury trial and the right to confront adverse witnesses. Less obvious, and certainly less well known, is that entry of a guilty plea also limits a defendant’s right to appeal the conviction.

Direct appeals in North Carolina are controlled by N.C. Gen. Stat. § 15A-1444, which restricts appeal after a guilty plea to the correction of errors in the sentence imposed. The appeal is not an opportunity to argue for a different, more desirable sentence. It is only a mechanism for correcting a sentencing error involving

  • the calculation of the points imposed for prior convictions (prior record level);
  • the type of sentence (probation or active sentence) permitted for a particular class of offense; or
  • the term of imprisonment authorized based on the type offense and the defendant’s prior record.

Defendants also have a right to appeal, if certain requirements are met, the denial of a motion to suppress occurring before entry of the guilty plea, or the denial of a motion to withdraw the guilty plea. No other issues can be raised on direct appeal following a guilty plea. Defendants can raise other issues in petitions to the appellate courts, but review is discretionary, not a right. The appellate courts can deny review without even giving a reason.

Our court system has become dependent on guilty pleas as an efficient and economical way to handle the high volume of criminal cases. However, the presumption of innocence remains at the heart of our criminal justice system. We must ensure that defendants who enter guilty pleas do so only after close consultation with their attorneys and with full understanding of the important rights they are relinquishing.

Kathleen M. Joyce is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent criminal defendants on their appeals to the North Carolina Court of Appeals and the North Carolina Supreme Court.