The North Carolina Supreme Court held in State v. Terrell, __ N.C. __ (Aug. 16, 2019), that a private party’s limited search of a defendant’s thumb drive did not frustrate the defendant’s legitimate expectation of privacy in the entire contents of the electronic storage device. The detective who searched on the heels of the private party could not be virtually certain that he would find nothing else of significance on the device or that his search would do no more than corroborate what the private searcher had told him. Thus, the court concluded that the detective could not lawfully search additional folders on the thumb drive without a warrant after the private party turned the device over to law enforcement.
Category Archives: Search and Seizure
The question in the title of this post is an oversimplified version of the issue addressed by the court of appeals last week in State v. Bailey, __ N.C. App. __, __ S.E.2d __, 2019 WL 3925864 (Aug. 20, 2019). But it isn’t oversimplified by much, and the appellate division may be inching closer to answering the question in the affirmative. Continue reading →
Editor’s note: The opinion analyzed in this post was withdrawn shortly after publication and replaced with this opinion reaching the same outcome.
Last week, in State v. Ellis, __ N.C. App. __, __ S.E.2d __, 2019 WL 3559644 (N.C. Ct. App. Aug. 6, 2019), a divided panel of the court of appeals held that a trooper properly stopped a vehicle “after witnessing . . . a passenger in [the] vehicle . . . extend his middle finger in the trooper’s general direction.” The majority acknowledged that “there are a number of decisions from courts across the country [holding] that one cannot be held criminally liable for simply raising his middle finger at an officer.” Yet it ruled that the defendant’s conduct provided reasonable suspicion of criminal activity, namely, disorderly conduct. See generally G.S. 14-288.4(a)(2) (making it unlawful to make a gesture “intended and plainly likely to provoke violent retaliation”). Let’s take a closer look at Ellis. Continue reading →
I recently traveled to New York City to do some sight-seeing. I noticed that I wasn’t the only one doing the looking. The New York Police Department has mounted security cameras on poles all over Manhattan. They are well-marked and conspicuous. Seeing them made me wonder about challenges to this kind of surveillance in light of the Supreme Court’s decision two terms ago in Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018), holding that a person has a legitimate expectation of privacy in the record of his or her physical movements as captured through cell-site location information (CSLI). The court based its opinion in part on a person’s reasonable expectation that law enforcement will not constantly surveil his physical movements. Though video recorded by a law enforcement camera differs from CSLI in its scope and in the type of information collected, some have argued that the privacy interests identified in Carpenter also are implicated by the government’s use of pole-mounted surveillance cameras.
WRAL has several stories up about geofencing warrants. One major article is here. It describes a search warrant obtained by the Raleigh Police Department in a murder case. The warrant ordered “Google [to] hand over the locations of every [mobile] device within the confines of [a defined geographic area] during a specified time period.” In a nutshell, the police were trying to figure out who was near the scene of the crime when the murder took place and asked Google to comb its data banks to find out. This post is intended to start a conversation about warrants of this kind. Continue reading →
Late last month, the Supreme Court decided Mitchell v. Wisconsin, 588 U.S. ___ (June 27, 2019), a case in which the petitioner argued that the State of Wisconsin violated the Fourth Amendment by withdrawing his blood while he was unconscious without a warrant, following his arrest for impaired driving. Like many other states, including North Carolina, Wisconsin has a state statute that permits such blood draws. The Wisconsin Supreme Court affirmed the petitioner’s conviction, though no single opinion from that court commanded a majority. The Supreme Court granted certiorari to decide “[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.” Though no justice found such a statutory exception and the judgment below was vacated, the outcome was not a win for the petitioner. Instead, a plurality of the court announced a State-favorable exigency rule, which it instructed the lower court to apply on remand.
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. Continue reading →
Jeff Welty blogged last week about State v. Capps, __ N.C. App. __, 2019 WL 2180435 (May 21, 2019). The central issue in that case was the state’s use of a misdemeanor statement of charges, but there was a minor detail in the facts that caught my eye because it raises an issue I’ve been asked about more than once.
What is the status and authority of a law enforcement officer when he or she is off-duty?
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. Continue reading →
Back in November of last year, I wrote about hemp and CBD laws here. I have been teaching quite a bit on the subject lately and wanted to follow up that post with an examination of how legal use of hemp products may affect marijuana prosecutions in North Carolina. Continue reading →