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Hot off the Press! 2020 Cumulative Supplement to Arrest, Search, and Investigation Now Available

The 2020 Cumulative Supplement to Arrest, Search, and Investigation in North Carolina, written by Robert L. Farb and Christopher Tyner, is now available for purchase. The supplement updates Arrest, Search, and Investigation (5th edition 2016). The 2016 book and 2020 supplement may be purchased as a bundle here. The supplement is current through July 1, … Read more

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Conducting Surveillance and Collecting Location Data in a Post-Carpenter World, Part III

This post is the third in a series examining the impact of Carpenter v. United States, 585 U.S. ___, 138 S.Ct 2206 (2018) on electronic surveillance and the obtaining of location and other types of information from third parties. The first post summarized post-Carpenter decisions relating to surveillance by pole camera and tower dumps. The second examined post-Carpenter rulings on the obtaining of real-time surveillance information through satellite-based Global Positioning System data (GPS) or cell site location information (CSLI). This post examines the use of cell site simulators and the obtaining of other information about a person’s on-line activities or accounts from third parties.

Jemal R. Brinson, Cell site simulators: How law enforcement can track you, Chicago Tribune (Feb. 18, 2016).

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Conducting Surveillance and Collecting Location Data in a Post-Carpenter World, Part II

This post is the second in a series examining the impact of Carpenter v. United States, 585 U.S. ___, 138 S.Ct 2206 (2018) on electronic surveillance and the obtaining of location and other types of information from third parties. The first post in this series summarized post-Carpenter decisions relating to surveillance by pole camera and tower dumps. This post examines post-Carpenter rulings on the obtaining of real-time surveillance information through satellite-based Global Positioning System data (GPS) or cell site location information (CSLI). The last post in this series will examine the use of cell site simulators and the obtaining of other information about a person’s on-line activities or accounts from third parties.

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Conducting Surveillance and Collecting Location Data in a Post-Carpenter World, Part I

Two years have passed since the Supreme Court held in Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018), that the government carried out a Fourth Amendment search when it obtained historical cell site location information (CSLI) for the defendant’s phone from a wireless carrier. Relying in part on the view expressed by five concurring justices in United States v. Jones, 565 U.S. 400 (2012), that individuals have a reasonable expectation of privacy in the whole of their physical movements, the court determined that allowing the government access to at least seven days of historical cell-site records contravenes that expectation, even when the records are generated for commercial purposes and held by a third party.

The Carpenter majority characterized its decision as “a narrow one” and noted that it was not expressing a view on “real-time CSLI or ‘tower dumps,’” disturbing the traditional application of the third-party doctrine, or “call[ing] into question conventional surveillance techniques and tools, such as security cameras.” Id. at 2220. Dissenting justices, in contrast, characterized the court’s reasoning as “fractur[ing] two fundamental pillars of Fourth Amendment law,” and “guarantee[ing] a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.” Id. at 2247. (Alito, J., dissenting).

Lower courts have applied and distinguished Carpenter in a number of cases involving electronic surveillance and the obtaining of location and other types of information from third parties. This post, the first in a three-part series, summarizes post-Carpenter decisions relating to surveillance by pole camera and tower dumps. The second post in this series will examine post-Carpenter rulings on the obtaining of real-time surveillance through GPS or CSLI. The third post will consider the use of cell site simulators and the obtaining of other information about a person’s on-line activities or accounts from third parties. After reading all three, you can decide for yourself whether Carpenter’s progeny has bolstered the majority’s view of its limitations or has borne out the dissent’s warnings regarding its reach.

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September 15 Omnibus Order Extends Emergency Directives

We have posted regularly during the COVID-19 pandemic about emergency directives entered by the Chief Justice pursuant to G.S. 7A-39(b)(2) that establish procedures and protocols governing the continuing operation of the courts. Last month’s post reviewed the status of directives then in place, noting their varying expiration dates. Last week, the Chief Justice entered an omnibus renewal order, which included all emergency directives currently in effect and placed all but one of them on the same expiration cycle. This post will briefly review those directives and other aspects of the September 15, 2020 order.

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Welcome Back, Tom Thornburg!

A few weeks ago, I had the privilege of welcoming our new colleague Brittany Williams to the School of Government. Today, I have the honor of announcing another colleague’s return to the criminal law fold.  After more than two decades of serving as an administrator at the School – most recently as the School’s Senior Associate Dean — Tom Thornburg has returned to traditional faculty work, where he will focus on magistrates and their needs in the area of criminal law and procedure. Tom will work closely with our colleague Dona Lewandowski, whose work focuses on magistrates’ civil responsibilities.

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Update on Emergency Directives

During the COVID-19 outbreak, Chief Justice Cheri Beasley has exercised her authority under G.S. 7A-39(b)(2) to issue orders imposing 22 emergency directives to ensure the continuing operation of the courts. Such emergency orders expire no later than 30 days from their issuance, though they may be renewed for additional 30-day periods. Because the orders imposing the directives were issued on differing dates, they have expired and have been renewed on differing schedules. The Chief Justice entered the latest renewal order yesterday. This post will review the directives that are currently in place, including those related to the eventual resumption of jury trials.

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Fielding a Few Questions About License Revocations for Failure to Appear and Comply

I wrote last week about the expiration of emergency orders that had temporarily halted clerks from reporting to DMV a person’s failure to appear or to pay monies owed in a Chapter 20 criminal or infraction case.  When DMV receives such a report, it imposes a license revocation pursuant to G.S. 20-24.1, unless the person does one of the following before the revocation goes into effect:

  • disposes of the charge;
  • demonstrates that he or she is not the person charged with the offense;
  • pays the penalty, fine, or costs ordered by the court; or
  • demonstrates to the court that his failure to pay the penalty, fine, or costs was not willful and that he is making a good faith effort to pay or that the penalty, fine, or costs should be remitted.

Someone asked me recently about these sanctions for nonappearance and nonpayment — or incentives for appearance and payment — depending upon one’s perspective. How many revocations are imposed for failures to appear and failures to pay? Do other states have similar license revocation schemes? What other ways exist to incentivize appearance and payment?

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