Some law enforcement agencies concerned about officers’ exposure to fentanyl have stopped field testing white powders. A question I’ve had several times is whether a magistrate may find probable cause for a drug offense involving a white powder without a field test. The answer to that question is yes, so long as the totality of the circumstances provides reason to believe that the powder in question is a controlled substance.
Jeff Welty
How Serious Is a “Serious Bodily Injury”?
Here’s a question for you: which of the following injuries is more serious?
- The victim, a police officer injured while fighting with a suspect, “sustained puncture wounds [from bites] on his left forearm and right bicep.” The officer testified that the bites were extremely painful, and they caused “severe bruising and depressions, [and] permanent scarring . . . includ[ing] a large circle on his right bicep, ‘just over a half an inch to an inch in a circle’ with a ‘large depression[,]’ and ‘a deep ridge’ on his left arm. The officer experienced loss of sleep and extreme stress [and] had to be tested multiple times for communicable diseases.”
- The victim, a six-year-old girl injured when her father “forcibly twisted” her leg until it broke, suffered a “spiral fracture” of her femur. A physician described such fractures as “incredibly painful,” and the child required morphine to control her discomfort. She was placed in traction and underwent surgery to place titanium rods in her leg. The surgery resulted in lifelong scars. The victim was in a cast for several weeks, and used a wheelchair and a walker during her recovery. She regained the full use of her leg in five to eight months, but had to repeat kindergarten as a result of missing so much school.
You can vote on the answer below. Once you have voted, read on to see how the court of appeals viewed these two scenarios.
Loading ... Particularly Describing the Evidence to Be Seized under a Search Warrant
The Fourth Amendment states in part that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The reference to a particular description of the place to be searched and the things to be seized is called the particularity requirement. As it pertains to the things to be seized, the Supreme Court’s most famous exposition of the requirement is in Marron v. United States, 275 U.S. 192 (1927), where it opined that the requirement “makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”
In practice, officers regularly seek search warrants with catchall provisions. For example, in a drug case, an officer may seek authorization to seize drugs, paraphernalia, customer lists, and “any and all other evidence connected to drug activity.” Are catchall statements like these consistent with the particularity requirement?
Probable Cause and Child Pornography
Shea blogged last week about State v. Terrell, a case in which the defendant’s girlfriend saw on one of the defendant’s USB drives an “image of [the girlfriend’s] nine-year-old granddaughter sleeping without a shirt.” She called the police, and an officer found additional images of “partially or fully nude minors” on the drive. The officer sought and obtained a search warrant that led to the discovery of child pornography. Shea’s post, and the case itself, focused on the officer’s initial warrantless search and whether it was justified under the private search doctrine. But the court’s recitation of the facts reminded me of another common issue in child pornography cases: how much information about an image must an officer provide in order to establish probable cause that the image constitutes child pornography?
The Rape Kit Backlog and What’s Being Done about It
In 1985, Anthony Wyrick sexually assaulted two teenage girls in Charlotte. The police collected semen and other biological evidence but DNA testing was not available at that time and the crime went unsolved. Almost 30 years later, the case came to the attention of the Charlotte-Mecklenburg Police Department’s sexual assault cold case unit. Officers submitted the biological evidence for DNA testing. The results pointed to Wyrick, who lived near the scene of the crime in 1985 and who had since been convicted of an unrelated second-degree rape. Wyrick was eventually arrested, charged, and convicted. His conviction was affirmed last month in State v. Wyrick, which I how I learned of the case. Reading it got me wondering about the status of what is popularly known as the rape kit backlog.
When a Person Commits a Crime, Is There Probable Cause to Search the Person’s Phone for Evidence?
The question in the title of this post is one that I’ve been asked lots of times in different factual contexts. The basic question is, given that most people have cell phones, and that people tend to use their phones to document and to communicate about just about everything that they do, is it reasonable to believe that a person who has committed a crime has evidence of that crime on his or her phone?
Real-Time Cell Phone Tracking Update, Including a New Case
The Court of Appeals of North Carolina recently decided a case about police obtaining real-time location information from a suspect’s cellular service provider. The case does not address the principal controversy concerning such information. Nonetheless, it provides a good refresher on the issue and marks a good time for an update on the national controversy about this issue.
New Developments Regarding Risk Assessments
Risk assessment tools are starting to take root in the criminal justice system. They’re used to make decisions about pretrial release, sentencing, and the level of supervision or custody to which a defendant will be subject. Some of the results are encouraging. For example, Mecklenburg County uses a risk assessment developed by the Laura and John Arnold Foundation to help make pretrial release decisions. The pretrial services office there reports that the risk assessment has contributed to “transformational change” in how pretrial justice is administered, with fewer secured bonds being imposed the jail population falling with no harm to public safety. Based in part on Mecklenburg’s success, the North Carolina Commission on the Administration of Law and Justice encouraged the creation of a pilot project that would “implement and assess more broadly . . . an empirically derived pretrial risk assessment tool.”
Discovery of Officers’ Text Messages
More than a trillion text messages are sent each year in the United States alone. Some of these messages are work-related communications from law enforcement officers to fellow officers, witnesses, prosecutors, and others. Which, if any, of these messages are discoverable? How should officers preserve discoverable messages? Must prosecutors ask for officers’ text messages before providing discovery to the defense? This post begins to address these questions.
Questions and Resources about Searches of Cloud Storage
If a law enforcement officer obtains a search warrant for a suspect’s cell phone, may the officer use the phone to access cloud storage to which it is linked? For example, may the officer click on the Dropbox icon on the phone’s home screen and see what’s there?