Search and Seizure Archives – Page 7 of 42 – North Carolina Criminal Law

Shooting an Officer the Bird

August 20, 2019August 12, 2019 Jeff Welty

Editor’s note: The opinion analyzed in this post was withdrawn shortly after publication and replaced with this opinion reaching the same outcome.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.

Pole Cameras after Carpenter

September 16, 2020July 31, 2019 Shea Denning

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.

Geofencing Warrants

July 30, 2019 Jeff Welty

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.

Supreme Court Announces New Exigency Test for Blood Draws from Unconscious DWI Suspects

July 9, 2019 Shea Denning

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.

May Search Warrants for Cell Phones Include Connected Cloud Services?

June 24, 2019 Jeff Welty

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.

Status and Authority of Off-Duty Officers

February 11, 2022June 11, 2019 Jonathan Holbrook

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?

Delays in Obtaining Search Warrants for Digital Devices

June 10, 2019 Jeff Welty

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 (4^th 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.

Hemp or Marijuana?

May 22, 2019May 21, 2019 Phil Dixon

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.

Warrantless Use of Drones

May 13, 2019 Jeff Welty

WRAL recently reported that “the Johnston County Sheriff’s Office . . . flew a drone over [private] property . . . to locate [stolen construction] equipment.” According to the story, the overflight may have been conducted without a warrant as “[t]here was no . . . warrant on file at the Johnston County Courthouse.” Can they do that?

Update on Community Caretaking

May 6, 2019 Jeff Welty

The court of appeals just decided another case on the community caretaking doctrine. It’s the fourth published community caretaking case in the last five years, and there have been a couple of unpublished ones as well. The activity in the appellate division suggests that the doctrine is being invoked much more frequently in the trial courts. This post explains the new case and provides a quick refresher on the older ones.