Articles in the Search and Seizure category - Page 23 of 45

Don’t call the School of Government next week. We’ll all be out. Next week is conference-time for many of the court officials we serve, and we will be traversing the state (driving the speed limit at all times, of course) to speak at various legal conferences. Case updates are a perennial staple of these conference agendas, so I’ve been reviewing last year’s cases with a particular focus on impaired driving.  A number of opinions address issues that are frequently litigated in DWI cases, so I thought I’d share the highlights with you in a two-part post.  This post reviews the past year’s jurisprudence on implied consent testing and compelled blood draws.  Tomorrow’s post will review the recent case law on reasonable suspicion and probable cause for DWI.

Many child pornography cases begin when someone with access to the defendant’s computer looks through it, finds child pornography, and contacts law enforcement. For example, the recent Raleigh case in which a “Santa for hire” was charged with possessing child pornography began when a computer repair technician contacted police. In this type of case, does the private party’s search of the defendant’s computer destroy the defendant’s privacy interest such that an officer may then search the computer without a search warrant? A recent federal case explores the issue.

The United States Supreme Court held in Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015) (discussed here), that a law enforcement officer may not extend a traffic stop to investigate matters unrelated to the basis for the stop—not even for a matter of minutes—unless the additional delay is supported by reasonable suspicion. The North Carolina Court of Appeals applied that principle this week in State v. Leak, ___ N.C. App. ___ (2015), reversing the trial court’s denial of the defendant’s motion to suppress and vacating the defendant’s conviction for possession of a firearm by a convicted felon.

On Tuesday, the Eleventh Circuit ruled, en banc, that law enforcement may obtain historical cell site location information without a search warrant, using a court order based on less than probable cause. There’s a controversy over what legal standard should govern law enforcement access to location information, and the Eleventh Circuit’s ruling is likely to be influential in the debate. This post explains the issue and puts the new decision in context.

In most DWI cases, the State obtains evidence of a defendant’s alcohol concentration from a breath-testing machine.  In order for the results of such a breath test to be admissible at trial, the State must follow the procedures set forth in the implied consent statutes, G.S. 20-16.2 and G.S. 20-139.1. Those statutes require, among other things, that a suspect be advised of his right to refuse testing and the consequences of such a refusal and that he be afforded an opportunity to contact a witness to observe the testing. Less frequently, a law enforcement officer will request that a person charged with an implied consent offense such as impaired driving submit to a blood test. Like the breath test results, the analysis of the defendant’s blood sample obtained pursuant to such a request is admissible at trial only if the State follows the procedures set forth in the implied consent statutes.  If the request for a blood test follows an earlier request for a breath test, then the officer must re-advise the suspect of his implied consent rights before asking for consent.  None of these rules apply, however, when blood is withdrawn pursuant to a search warrant.

I’m happy to announce that my book on digital evidence is now available. There are five chapters, covering (1) search warrants for digital devices, (2) warrantless searches of digital devices, (3) law enforcement access to electronic communications, (4) tracking devices, and (5) the admissibility of electronic evidence.

Yesterday, the Supreme Court decided Rodriguez v. United States, an important traffic stop case that changes North Carolina law as it pertains to certain drug dog sniffs, and perhaps other investigative techniques as well.

Over the weekend, the Washington Post ran a story that begins as follows:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

Author’s Note:  This post has been modified from its original version in response to a helpful comment by a reader.

An officer sees a man drink from a can of beer while the man drives through a public parking deck. The officer stops the man’s car and sees the beer bottle can in plain view. He then asks the man to step out of the vehicle. May the officer open the car’s console to search for additional evidence?

Drones are remote-controlled aircraft. They can be equipped with cameras, and may be useful for surveillance. Does the use of drones by law enforcement officers raise any legal concerns?

The short answer is yes, in at least four ways.