North Carolina Criminal Law Blog

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.

A couple of recent court of appeals opinions emphasize a bright-line rule in cases involving traffic stops. An officer who observes a driver commit a traffic violation may stop the driver to address that violation, even when the violation is minor and the officer has elected to respond to the observed violation because she suspects that other unsubstantiated criminal activity may be afoot.

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.

I’ve blogged before about whether law enforcement officers may go to a side door, or the back door, when attempting to conduct a knock-and-talk. The court of appeals just decided another case on point, again holding that an officer generally may not do so.

A Fourth Amendment seizure does not occur when an officer turns on her patrol vehicle’s lights and siren to signal for a vehicle to stop. Instead, it occurs when a driver submits to that show of authority by stopping the car. Thus, if an officer lacks reasonable suspicion when she activates the siren, but gathers information sufficient to constitute reasonable suspicion by the time the vehicle stops, the traffic stop does not run afoul of the Fourth Amendment.

But what if the car is already stopped when the officer turns on the blue lights and siren? Have the occupants of the car then been seized for purposes of the Fourth Amendment? Not necessarily, as the court of appeals recently explained in State v. Turnage, __ N.C. App. ___ (May 15, 2018).

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.

I recently summarized a Fourth Circuit traffic stop case arising out of western North Carolina, U.S. v. Bowman, 884 F.3d 200 (4th Cir. 2018). It’s an interesting case in its own right as an application of U.S. v. Rodriguez, 135 S. Ct. 1609 (2015) (holding that extensions of a traffic stop must be supported by reasonable suspicion). In short, the Fourth Circuit reversed the trial court’s denial of the defendant’s motion to suppress, finding that the trooper lacked reasonable suspicion to extend the stop after the traffic stop was completed and vacating the defendant’s drug conviction. There are interesting issues in the case about when a seizure occurs and about whether the defendant consented to the extension of the stop, and readers are encouraged to check out the case, or at least the summary here (you can read all of the Fourth Circuit case updates here).

What caught my eye about it was a footnote in the opinion. Before the state trooper encountered the defendant, the Drug Enforcement Administration (“DEA”) passed along a tip to the local authorities in N.C. that the defendant’s vehicle was suspected of trafficking meth. That tip provided the vehicle’s license plate number and a description (“a red, older model Lexus”). According to the footnote, “The government agrees that the DEA tip should not be considered in any way in our legal analysis.” Slip op. at 3 n.1. Why would that be? After some digging and help from attorneys in the Charlotte Office of Federal Public Defender (thanks again to Ann Hester, Kevin Tate, and Mary Ellen Coleman from that office for talking about the case with me), I was able to determine that this was an instance of a so-called “whisper” stop. Although not exactly a new practice, its application in the digital age raises interesting questions. The tip aspect of the case is not discussed in Bowman beyond the brief mention in the footnote, but the case is a clear sign that the practice is occurring in North Carolina and elsewhere, so I wanted to cover it in today’s post.

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?

An officer normally needs a search warrant to search a residence, unless an exception to the warrant requirement applies. That’s because residences are protected by a reasonable expectation of privacy under the Fourth Amendment. But what about residences that lie vacant and in disrepair? At what point do they become abandoned such that the reasonable expectation of privacy no longer applies?

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?