Many law enforcement officers, including those in five of North Carolina’s six largest cities, are or soon will be wearing body cameras. The prevailing view is that the use of such cameras doesn’t constitute a Fourth Amendment search because the cameras record only what an officer is already able to see. This post considers whether the increasing adoption of body cameras and other data-collection technologies could eventually result in body camera recordings being considered searches under the so-called mosaic theory of the Fourth Amendment.
Search and Seizure
Update on U.S. Supreme Court’s Ruling in Rodriguez v. United States Concerning Extension of Traffic Stops
Last April, the United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), significantly limited the scope of a traffic stop. The officer in Rodriguez completed a traffic stop for driving on the shoulder of a highway after checking the vehicle registration and driver’s licenses of the driver and passenger, conducting a warrant check, returning all documents, and issuing the driver a warning ticket. The officer then asked the driver for consent to walk his drug dog around the vehicle, but the driver refused to give his consent. Nonetheless, the officer told the driver to turn off the ignition, leave the vehicle, and wait for a second officer. When the second officer arrived, the first officer walked his drug dog around the car, and the dog alerted to the presence of drugs. A search of the vehicle revealed methamphetamine. Seven to eight minutes had elapsed from the time the officer issued the written warning until the dog’s alert.
N.C. Court of Appeals Rules That Affidavit For Search Warrant to Search Residence Failed to Link Residence to Drug Activity That Had Occurred Elsewhere
Last week a three-judge panel of the North Carolina Court of Appeals in State v. Allman (5 Jan. 2016), ruled (2-1) that a search warrant to search a residence for drugs was not supported by probable cause because the affidavit failed to link the residence to drug activity that had occurred elsewhere. This post discusses some of the interesting issues in this case, including possible state supreme court review.
The Latest on McNeely and Implied Consent
Here I go again (perhaps on my own) with another update on the state of implied consent after Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). These updates occur more often than teeth-cleanings and may be awaited with the same degree of anticipation. But given that there’s a split of authority developing between the states, and North Carolina courts have not yet weighed in, I think these are developments worth following.
Eyewitness Identification Reform Act Extended to Show-Ups
Effective December 1, S.L. 2015-212 extends the Eyewitness Identification Reform Act, G.S. 15A-284.52, to cover show-ups. But the bill leaves the status of photographic show-ups in doubt and contains a strange provision regarding law enforcement officers as eyewitnesses. This post unpacks the new law.
Search Warrants for Suicide Scenes
Here’s a question that comes up from time to time: May a search warrant issue for a residence in which an apparent suicide has taken place, in order to rule out the possibility of foul play? Generally, I don’t think so, for the reasons given below.
Must Officers Now Arrest, Rather Than Cite, for Misdemeanor Marijuana Possession?
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses.
State v. Perry, Cell Site Location Information, and the Exclusionary Rule
Last week, the court of appeals decided State v. Perry. It’s the appellate division’s first foray into cell site location information and a case that raises questions about the status of the exclusionary rule in North Carolina.
The Eighth Circuit Considers Implied Consent, but I Still Haven’t Found What I’m Looking For
I admit that I may have a problem. I am dedicated to (perhaps obsessed with) the pursuit of a legal theory that satisfactorily squares the doctrine of implied consent with the Fourth Amendment. A thousand Westlaw searches later, I have yet to find analysis such an analysis by a court. So I was a little surprised when the United States Court of Appeals for the Eighth Circuit explained earlier this summer that the Supreme Court determined more than thirty years ago in South Dakota v. Neville, 459 U.S. 553 (1983), that implied consent testing carried out under threat of license revocation comported with the Fourth Amendment. Did I miss something?