On Friday, the Supreme Court issued a long-awaited opinion in Carpenter v. United States. The Court held that when law enforcement obtains long-term cell site location information from a suspect’s service provider, it conducts a Fourth Amendment search that normally requires a warrant. Although the majority opinion states that it “is a narrow one,” the dissenting Justices and some scholars see it as a seismic shift that may have many aftershocks. I’ll summarize the case and then use former Secretary of Defense Donald Rumsfeld’s famous approach to address the “known knowns,” the “known unknowns,” and the “unknown unknowns” after Carpenter.
Jeff Welty
Questioning Oneself: Direct Examination of a Self-Represented Defendant
I was reading a WRAL article about the District Attorney wife-hiring trial taking place in Raleigh when the following passage caught my attention: “Superior Court Judge Paul Ridgeway said that, if [former District Attorney] Wallace Bradsher testifies, he cannot simply deliver a monologue from the witness stand and must pose questions to himself to give prosecutors a chance to object to potential testimony.” I hadn’t previously considered how testimony from a self-represented defendant would work. I looked into it, and this post summarizes what I learned.
What Everyone Needs to Know about Knock and Talks
Knock and talks are a common, useful, and sometimes controversial law enforcement tool. I thought that I would put together a post that summarizes the principal legal issues that they present.
Supreme Court: Driver of Rental Car, Not Listed on Rental Agreement, Has Reasonable Expectation of Privacy
A week ago today, the Supreme Court of the United States resolved a circuit split and ruled that a person driving a rental car, but not listed on the rental agreement, has a reasonable expectation of privacy in the vehicle . . . at least sometimes. The case is Byrd v. United States.
Is Sports Betting Legal Now? Understanding Murphy v. NCAA
The Supreme Court of the United States decided Murphy v. NCAA today, and the headlines suggest that the opinion has rendered sports betting legal nationwide. The reality is a little more complicated than that.
Officers’ Applications for Investigative Orders and the Unauthorized Practice of Law
May a law enforcement officer submit an application for an investigative order to a judicial official, or does that constitute the unauthorized practice of law? The answer depends on the type of order sought, as a letter of caution issued last week by the State Bar’s Authorized Practice Committee reveals.
Failure to Include Known Facts in a Search Warrant Application Can Undermine Probable Cause
When a search warrant application fails to establish probable cause, the problem isn’t normally that the applicant didn’t have probable cause. It’s that the applicant failed to include important facts that he or she knew. An example of the phenomenon is State v. Lewis, decided this week by the court of appeals.
Controlled Buys, Middlemen, and Probable Cause
Last week, the Court of Appeals of North Carolina decided State v. Frederick, a case about whether a controlled purchase of drugs provided probable cause to issue a search warrant. Before you say “the answer is yes, that fact pattern happens all the time,” be aware that Frederick presents a wrinkle. The wrinkle is that the controlled buy was conducted not by a confidential informant, but by an unknown “middleman” who the informant drove to the suspect’s home. Does the injection of an intermediary undermine probable cause? Read on to find out!
Search Warrants for Lawyers’ Offices
Last week, the FBI executed a search warrant at the office of Michael Cohen, a lawyer who has worked for President Trump. The Washington Post reports that Cohen is being “investigated for possible bank and wire fraud,” perhaps in connection with “buy[ing] the silence of people who . . . could have damaged Trump’s candidacy in 2016.” The New York Times story on the matter is here. President Trump and others have suggested that the execution of the warrant was inappropriate because it infringes on the attorney-client privilege. Without getting into the politics, what do we know about the law?