Yesterday, the North Carolina Court of Appeals issued a published opinion in favor of Narendra Ghosh’s client Kenneth Leak. The Court vacated Mr. Leak’s conviction for possession of a firearm by a felon, finding that it was obtained in a manner that violated Mr. Leak’s rights under the Fourth Amendment to the United States Constitution.
Mr. Leak had been approached by a police officer while lawfully parked on the side of a road. The officer confirmed that Mr. Leak was not in distress and confirmed that he had a valid driver’s license. Although he did not suspect Mr. Leak of engaging in any criminal conduct, the officer then took Mr. Leak’s license to his patrol car. After running a check on the license he discovered that there was an outstanding warrant for Mr. Leak’s arrest from 2007. When he then asked Mr. Leak to step out of the car, Mr. Leak informed him that he had a .22 pistol in his pocket. Mr. Leak was subsequently convicted of possession of a firearm by a felon and the related misdemeanor of carrying a concealed weapon.
Patterson Harkavy attorney Narendra Ghosh represented Mr. Leak on appeal. Narendra argued that the officer violated Mr. Leak ‘s Fourth Amendment rights when he took Mr. Leak’s license to the patrol car. The Court of Appeals agreed. Because “a reasonable person would not feel free to drive away while a law enforcement officer retains possession of his driver’s license,” the court found that that the officer “seized” Mr. Leak when he took his license. Because the officer lacked any reasonable basis for suspecting that Mr. Leak was engaged in criminal activity when he did so, the court found that the seizure was unconstitutional under the Fourth Amendment. The Court then ordered that Mr. Leak’s conviction be vacated since all evidence of criminal misconduct was obtained as a result of that unconstitutional seizure.