Inquisitive police officers regularly ask suspects questions like “Can I take a look at your phone?” or “Can I see your phone?” These on-the-street requests may give rise to legal questions in court. For example, if the suspect hands over the phone in response, does that provide consent for the officer to search the phone? And if so, what is the scope of the search that the officer may conduct? This post explores those issues.
consent
Does Consent to Search a Home Include Consent to Search Phones and Computers Located Inside?
Normally, the Fourth Amendment requires that police obtain a search warrant before officers may search a person’s phone or computer. But the person can waive his or her Fourth Amendment rights by consenting to a search without a warrant. The scope of a person’s consent is determined by what a “typical reasonable person [would] have understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500 U.S. 248 (1991). Applying that test, if an officer asks a suspect for consent to search the suspect’s home, and the suspect agrees, does that allow the officer to search any digital devices located inside the residence?
Asking for Consent to Search During a Traffic Stop
Suppose an officer conducts a traffic stop. During the stop, the officer gets a hunch that the driver may have drugs in the car. Can the officer ask the driver for consent to search the car? Even without reasonable suspicion? Does the time it takes to ask for consent, or the time it takes to conduct the search, unlawfully extend the stop? I’ll try to answer these important questions in this post.
“No” Will Mean “No” in North Carolina
Two years ago I wrote a blog post about North Carolina’s unusual stance on rape and consent. In its 1979 decision in State v. Way, 297 N.C. 293 (1979), the North Carolina Supreme Court appeared to take the position that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. In my lengthy blog, I suggested ways to distinguish or limit the antiquated approach in Way. This post need not be nearly as long. Last week, the General Assembly enacted Senate Bill 199, which revised the elements of rape and other sexual offenses to recognize the right to revoke consent, whether or not sexual intercourse or another sexual act has begun. If signed by the Governor (the Governor has signed the bill), the law will apply to offenses committed on or after December 1, 2019.
Race and the Voluntariness of Consent
Is a suspect’s race relevant when determining whether the suspect’s consent to search is voluntary? In a recent case, the court of appeals stated that it may be.
Whether “No” Means “No” in North Carolina
Attention has fallen on North Carolina for a 1979 court decision on withdrawal of consent during sexual intercourse. In State v. Way, 297 N.C. 293 (1979), the state supreme court held under North Carolina’s then-existing rape statutes that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. The decision has drawn fierce criticism from the public and in legal circles. The criticism intensified after the General Assembly did not act on a bill introduced this session, Senate Bill 553, which would have permitted withdrawal of consent after intercourse begins consensually. People have asked me whether the apparent holding in Way is still the law in North Carolina. Is it true that a man would not be guilty of rape if he forcibly continued to have sexual intercourse with a woman after she withdrew consent? In my view, that may not be the law in North Carolina.
What Constitutes Valid Consent When One Co-Occupant Consents and the Other Co-Occupant Does Not?
Generally, officers may obtain a valid consent to search only from a person whose reasonable expectation of privacy may be invaded by the proposed search. Sometimes two or more people—for example, spouses or roommates—share a reasonable expectation of privacy in the same place. Generally, either person may give valid consent to an officer. United States v. Matlock, 415 U.S. 164 (1974) (common authority over premises found). However, as discussed below, an exception to this general rule may exist when a physically-present occupant objects.
May an Officer Assume a False Identity Online in Order to “Friend” a Suspect?
Officers are allowed to misrepresent their identities in the course of their investigations: they may pose as drug buyers, or prostitutes, or members of an organized crime syndicate. Is the same thing true online? In other words, may an officer claim to be someone else in order to “friend” a suspect on social media and thereby gain access to whatever information the suspect has posted? The answer isn’t clear yet, but I would guess that courts ultimately will say yes.
The Latest on McNeely and Implied Consent
Here I go again (perhaps on my own) with another update on the state of implied consent after Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). These updates occur more often than teeth-cleanings and may be awaited with the same degree of anticipation. But given that there’s a split of authority developing between the states, and North Carolina courts have not yet weighed in, I think these are developments worth following.
United States Supreme Court Clarifies When Consent to Search by One Residential Occupant Is Valid When a Co-Occupant Has Previously Objected
Last week the United States Supreme Court in Fernandez v. California (February 25, 2014) clarified an issue left open in its ruling in Georgia v. Randolph, 547 U.S. 103 (2006): the validity of a consent search by a residential occupant after a co-occupant has previously objected to a search but is no longer physically present … Read more