Shea blogged last week about State v. Terrell, a case in which the defendant’s girlfriend saw on one of the defendant’s USB drives an “image of [the girlfriend’s] nine-year-old granddaughter sleeping without a shirt.” She called the police, and an officer found additional images of “partially or fully nude minors” on the drive. The officer sought and obtained a search warrant that led to the discovery of child pornography. Shea’s post, and the case itself, focused on the officer’s initial warrantless search and whether it was justified under the private search doctrine. But the court’s recitation of the facts reminded me of another common issue in child pornography cases: how much information about an image must an officer provide in order to establish probable cause that the image constitutes child pornography?
News Roundup
As the Associated press reports, last week United States Immigration and Customs Enforcement announced a new policy regarding immigration arrests at courthouses. The policy appears to suggest that ICE primarily will enter courthouses to arrest specific “targeted aliens” who have criminal convictions, are gang members, pose a threat to public safety, have been ordered removed from the United States, or have illegally re-entered the country after being removed. The policy says that aliens encountered in the process of making an arrest of a targeted person, such as the target’s family members or friends, will not be arrested “absent special circumstances.” Keep reading for more news.
Substance Abuse Treatment Isn’t Medical or Psychiatric Treatment for Probation Purposes
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?