A special purpose extension of probation is permitted only for certain specified purposes. According to a case decided earlier this week, substance abuse treatment isn’t one of them.
State v. Terrell and the Private Search Doctrine
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.
Evidence Issues Involving Children
Many years ago my colleague Janet Mason recruited me to teach about evidence issues in abuse, neglect, dependency, and termination of parental rights cases. She asked because most of the appellate law was criminal. After some grumbling, I produced a skinny 10-page paper in 2001. I’ve been adding to it ever since, and it has grown to a much longer chapter in the just-released 2017 edition of Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina. Although the manual is not about criminal cases, it may be helpful to those who work in the criminal courts. You can access the manual at no charge here. You can jump directly to the evidence chapter here.
The Rape Kit Backlog and What’s Being Done about It
In 1985, Anthony Wyrick sexually assaulted two teenage girls in Charlotte. The police collected semen and other biological evidence but DNA testing was not available at that time and the crime went unsolved. Almost 30 years later, the case came to the attention of the Charlotte-Mecklenburg Police Department’s sexual assault cold case unit. Officers submitted the biological evidence for DNA testing. The results pointed to Wyrick, who lived near the scene of the crime in 1985 and who had since been convicted of an unrelated second-degree rape. Wyrick was eventually arrested, charged, and convicted. His conviction was affirmed last month in State v. Wyrick, which I how I learned of the case. Reading it got me wondering about the status of what is popularly known as the rape kit backlog.
News Roundup
Larry Nassar was back in Michigan court this week for another sentencing hearing arising from a November guilty plea to three counts of criminal sexual conduct. The New York Times says that 65 women are scheduled to speak at this hearing. USA Today reports that the Nassar case has caused Texas Governor Greg Abbott to direct the Texas Rangers to investigate the Karolyi Ranch, a former National Training Center for USA Gymnastics run by Bela and Marta Karolyi. Several victims have alleged that Nassar abused them at the ranch. Keep reading for more news.
Probable Cause, Pretext and the Proliferation of Crimes
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.
When a Person Commits a Crime, Is There Probable Cause to Search the Person’s Phone for Evidence?
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?
Real-Time Cell Phone Tracking Update, Including a New Case
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.
News Roundup
On Tuesday, a 15-year-old high schooler with a handgun killed two fellow students and wounded sixteen others in Kentucky. According to NBC News, the shooter opened fire in a common area of Marshall County High School just before 8:00 a.m., sending the school into chaos as students desperately fled the attack. Police officers arrived at the school minutes later, quickly disarming the shooter and taking him into custody. Bailey Nicole Holt died at the scene and Preston Ryan Cope died later at a hospital. Keep reading for more news.