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.
Search and Seizure
Status and Authority of Off-Duty Officers
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
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 (4th 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.
Warrantless Use of Drones
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
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 It’s the fourth published community caretaking case in the last five years, and there have been a couple of unpublished ones as well.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.
Sixth Circuit Holds that Chalking Vehicle Tires is a Fourth Amendment Search
The Court of Appeals for the Sixth Circuit ruled last week that city parking enforcement officers’ use of chalk to mark the tires of parked vehicles to track how long they have been parked is a Fourth Amendment search. And, on the facts before it, the court held that the city failed to show that the search was reasonable.
Extending Traffic Stops to Wait for Other Officers
May an officer prolong a traffic stop to wait for a second officer to come to the scene? An officer may want another officer present to provide backup, or may need assistance from an officer who speaks Spanish, is proficient at administering Standardized Field Sobriety Tests, or is a certified Drug Recognition Expert. Under Rodriguez v. United States, 575 U.S. __ (2015), a traffic stop may last no longer than necessary to complete the “mission” of the stop — addressing the traffic violation that prompted the stop while attending to officer safety. When waiting for another officer is part of the mission of the stop is a question with which courts across the country are grappling.
Bail Reform in North Carolina—Pilot Project: Citation in Lieu of Arrest
In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of those reforms involves a new citation in lieu of arrest program. This reform includes implementation of a law enforcement-approved tool for patrol officers to encourage the increased use of citations in lieu of arrest for certain misdemeanors, in the officer’s discretion. The tool is a Cite or Arrest Pocket Card. Although the overall 30B project was a collaborative, multi-stakeholder endeavor, only the law enforcement community participated in the creation of the Pocket Card. The content of the card is reproduced below; in reality it’s a bright blue laminated card, the same size as the Miranda Warnings card.
New Bill Proposes GPS Tracking of Domestic Violence Offenders
A bill has been introduced in the legislature that would allow for GPS tracking of domestic violence offenders. Has that been tried elsewhere? Would it be constitutional? Would it open the door to tracking other types of people? This post tackles those questions.