Category: Search and Seizure

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?

Author’s note:  The North Carolina Supreme Court in State v. Terrell, ___ N.C. ___, 831 S.E.2d 17 (Aug. 16, 2019), affirmed the court of appeals judgment discussed below. The state supreme court’s decision is discussed here.

More than thirty years ago, the U.S. Supreme Court in United States v. Jacobson, 466 U.S. 109 (1984), defined the private search doctrine. Jacobson held that the Fourth Amendment is not implicated by the government’s inspection of private effects when that inspection follows on the heels of a private party’s search and does not exceed its scope. This is because the search by the private party frustrates an individual’s reasonable expectation of privacy regarding the item or area searched.

Jacobson thus determined that federal agents’ warrantless examination of a package of cocaine discovered by Federal Express employees and their field testing of its contents was not a Fourth Amendment search. When federal agents inspected the contents of the package, they “learn[ed] nothing that had not previously been learned during the private search,” and when they tested the substance to determine whether it was cocaine, they did not abridge any legitimate privacy interest.

In the ensuing decades, state and federal courts have applied and refined this analysis to determine the lawfulness of warrantless governmental searches of videotapes, computer disks, luggage, and other items turned over to law enforcement officials by private parties. And yesterday, the North Carolina Court of Appeals in State v. Terrell, ___ N.C. App. ___ (2018), considered whether the private-search doctrine insulated from Fourth Amendment scrutiny the government’s search of a USB flash drive turned over by the defendant’s girlfriend after she discovered among its contents a photo of her nine-year-old granddaughter sleeping without a shirt on.

I concluded last week’s post on District of Columbia v. Wesby, ___ U.S. ___ (2018), with a promise to return to Justice Ginsburg’s suggestion in her concurring opinion that it might be time for the Court to re-think Whren v. United States, 517 U.S. 806 (1996). So let’s take a closer look.

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?

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.

The United States Supreme Court issued its opinion in District of Columbia v. Wesby on Monday, holding that police officers had probable cause to arrest 16 people for unlawful entry after finding them reveling in a vacant house without the permission of its owner. The court further held that even if one assumed the officers lacked probable cause, they were entitled to qualified immunity because there was no clearly established law that rendered their actions unreasonable. The D.C. Circuit and the trial court had ruled otherwise, leading to a compensatory damages award of nearly $700,000 for the plaintiffs.

While trial courts are regularly called upon to evaluate whether facts known to an officer provide probable cause of criminal activity, it is less common for the Supreme Court to engage in such factbound determinations. Thus, the analysis in Wesby, whose language doubtless will soon be cited in the North Carolina reporters, warrants a closer look.

Last week, the court of appeals reversed a defendant’s conviction for first-degree murder. That doesn’t happen every day, so let’s unpack the case. The central issue concerns two eyewitnesses’ in-court identifications of the defendant.

In 2015, the Supreme Court of the United States decided Rodriguez v. United States, 575 U.S. __, 135 S. Ct. 1609 (2015). Rodriguez held that it was improper for an officer to extend a traffic stop for several minutes in order to conduct a dog sniff of the stopped vehicle. More generally, the decision requires an officer to pursue the “mission” of a traffic stop diligently, without measurably extending the duration of the stop for investigative activity unrelated to the purpose of the stop.

Our court of appeals has issued several decisions under Rodriguez, including some in defendants’ favor. Everyone has been waiting for those cases to make their way to the state supreme court. Now one has, and it turns out that the supreme court’s understanding of Rodriguez differs considerably from the view adopted by at least some panels of the court of appeals.

The case in question is State v. Bullock, __ N.C. __, __ S.E.2d __, 2017 WL 5017435 (2017), and this post explores it further.

I’m pleased to announce that the School of Government has just released a new book entitled Pulled Over: The Law of Traffic Stops and Offenses in North Carolina. Shea Denning, Christopher Tyner, and I are the authors. It’s an important topic given that North Carolina officers conduct more than a million traffic stops each year and that many criminal cases, small and large, begin with a motor vehicle stop. This post provides more information about the book.

Several years ago, I wrote about law enforcement use of cell site simulators, or Stingrays, noting that “[t]here’s a controversy about the legal status of these devices.” This post discusses some new cases that attempt to resolve the controversy.