While preparing to teach a recent class about search warrants for digital devices, I spoke with a number of experts in digital forensics. Each conversation was very helpful. Almost all of them touched on an issue I’d never previously considered: whether search warrants for cell phones do or may include the authority to search connected cloud services.
Jeff Welty
Delays in Obtaining Search Warrants for Digital Devices
There have been several recent cases regarding delays in obtaining search warrants for digital devices that have been lawfully seized. For example, in United States v. Pratt, 915 F.3d 266 (4th Cir. 2019), officers seized a suspect’s phone based on the suspect’s admission that it contained nude pictures of an underage girl. The opinion doesn’t say, but I assume that the basis of the seizure was risk of destruction of evidence. However, the officers didn’t obtain a search warrant for the phone for 31 days. On appeal, the Fourth Circuit ruled that the delay was unreasonable in violation of the Fourth Amendment. It turns out that Pratt isn’t alone.
Court of Appeals “Capps” Prosecutors’ Use of Statements of Charges in Superior Court
The ability to file a misdemeanor statement of charges is a superpower for district court prosecutors, enabling them to overcome virtually any error in a criminal pleading with the stroke of a pen. Arraignment in district court is kryptonite, robbing the superpower of its efficacy. This dynamic was on full display in State v. Capps, __ N.C. App. __, __ S.E.2d __, 2019 WL 2180435 (May 21, 2019), a recent opinion by the court of appeals.
Warrantless Use of Drones
WRAL recently reported that “the Johnston County Sheriff’s Office . . . flew a drone over [private] property . . . to locate [stolen construction] equipment.” According to the story, the overflight may have been conducted without a warrant as “[t]here was no . . . warrant on file at the Johnston County Courthouse.” Can they do that?
Update on Community Caretaking
The court of appeals just decided another case on the community caretaking doctrine. It’s the fourth published community caretaking case in the last five years, and there have been a couple of unpublished ones as well. The activity in the appellate division suggests that the doctrine is being invoked much more frequently in the trial courts. This post explains the new case and provides a quick refresher on the older ones.
Big Data and Criminal Justice
The debate about the criminal justice system increasingly is driven by empirical studies. Phil Dixon wrote thoughtfully last week about a new analysis of 700,000 drug arrests conducted by UNC faculty members outside the School of Government. This article by a Georgia law professor is also attracting attention – it claims to be “the most substantial empirical analysis of misdemeanor case processing to date,” based on “multiple court-record datasets, covering several million cases across eight diverse jurisdictions.” Similarly, in the popular media, this Washington Post article analyzes a huge trove of data to determine the percentage of arrests in each county across the nation that are based on marijuana possession.
I could list many more examples, but the general point is one with which I suspect most readers will agree: that big data is revolutionizing the discussion of criminal justice. This transformation has been unfolding for decades. Drivers include the growth of law and economics and other law and social science approaches, which has fertilized the legal field with social science techniques, and the increasing availability of large datasets, which has made statistical analysis easier. This post offers a few thoughts about the costs and benefits of this new data-focused world.
Extending Traffic Stops to Wait for Other Officers
May an officer prolong a traffic stop to wait for a second officer to come to the scene? An officer may want another officer present to provide backup, or may need assistance from an officer who speaks Spanish, is proficient at administering Standardized Field Sobriety Tests, or is a certified Drug Recognition Expert. Under Rodriguez v. United States, 575 U.S. __ (2015), a traffic stop may last no longer than necessary to complete the “mission” of the stop — addressing the traffic violation that prompted the stop while attending to officer safety. When waiting for another officer is part of the mission of the stop is a question with which courts across the country are grappling.
United States Supreme Court Rejects Another Challenge to Another Method of Lethal Injection But Leaves the Door Open to Future Litigation
The Supreme Court decided Bucklew v. Precythe today, rejecting a death row inmate’s challenge to Missouri’s single-drug execution protocol. Challenges to lethal injection are now 0-for-3 in the Supreme Court, but the Court did not foreclose future litigation. To the contrary, it left the door open to further challenges, and so did nothing to break up the litigation logjam that has resulted in a de facto moratorium on executions in North Carolina.
Is a Single Drug Sale from a Residence Enough to Support a Conviction for Maintaining a Dwelling?
Last week, the court of appeals decided State v. Miller, a case in which the defendant was convicted of maintaining a dwelling based almost entirely on the fact that he conducted a drug sale there. Would the court of appeals find the evidence sufficient under State v. Rogers, __ N.C. __, 817 S.E.2d 150 (2018), which substantially expanded the scope of maintaining a dwelling and related offenses?