North Carolina Criminal Law Blog

The number of people killed in motor vehicle crashes in the United States increased in by 5.6 percent from 2015 to 2016. In 2016, 37,461 people were killed in crashes on U.S. roadways, compared to 35,485 the previous year. North Carolina’s fatality figures followed the national trend, with fatalities increasing from 1,379 in 2015 to 1,450 in 2016, a 5.1 percent increase. Many such fatalities result in criminal vehicular homicide charges, which number in the hundreds each year in North Carolina alone.

Investigators and prosecutors in such cases are increasingly relying upon the vehicle itself to tell the story of what happened during and just before the crash. Many vehicles driven today (and nearly all manufactured in the past five years) are equipped with an Event Data Recorder (EDR) installed by the manufacturer. An EDR, often referred to as a car’s black box, contains data related to various aspects of the car’s operation seconds before a crash, including its speed, whether the brakes were applied, and the position of its gas pedal. This kind of evidence can play a central role in the State’s attempt to show culpably negligent driving. But how may the State lawfully obtain EDR information? And, once obtained, how may it be introduced into evidence?

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.

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.

The United States Supreme Court issued its opinion in District of Columbia v. Wesby on Monday, holding that police officers had probable cause to arrest 16 people for unlawful entry after finding them reveling in a vacant house without the permission of its owner. The court further held that even if one assumed the officers lacked probable cause, they were entitled to qualified immunity because there was no clearly established law that rendered their actions unreasonable. The D.C. Circuit and the trial court had ruled otherwise, leading to a compensatory damages award of nearly $700,000 for the plaintiffs.

While trial courts are regularly called upon to evaluate whether facts known to an officer provide probable cause of criminal activity, it is less common for the Supreme Court to engage in such factbound determinations. Thus, the analysis in Wesby, whose language doubtless will soon be cited in the North Carolina reporters, warrants a closer look.

The court of appeals decided another significant Rodriguez case yesterday, ruling (again) in State v. Reed that the highway patrol trooper who stopped the defendant for speeding on Interstate 95 detained the defendant for longer than necessary to carry out the mission of the stop without reasonable suspicion of other criminal activity.

If a law enforcement officer obtains a search warrant for a suspect’s cell phone, may the officer use the phone to access cloud storage to which it is linked? For example, may the officer click on the Dropbox icon on the phone’s home screen and see what’s there?

In 2015, the Supreme Court of the United States decided Rodriguez v. United States, 575 U.S. __, 135 S. Ct. 1609 (2015). Rodriguez held that it was improper for an officer to extend a traffic stop for several minutes in order to conduct a dog sniff of the stopped vehicle. More generally, the decision requires an officer to pursue the “mission” of a traffic stop diligently, without measurably extending the duration of the stop for investigative activity unrelated to the purpose of the stop.

Our court of appeals has issued several decisions under Rodriguez, including some in defendants’ favor. Everyone has been waiting for those cases to make their way to the state supreme court. Now one has, and it turns out that the supreme court’s understanding of Rodriguez differs considerably from the view adopted by at least some panels of the court of appeals.

The case in question is State v. Bullock, __ N.C. __, __ S.E.2d __, 2017 WL 5017435 (2017), and this post explores it further.

I’m pleased to announce that the School of Government has just released a new book entitled Pulled Over: The Law of Traffic Stops and Offenses in North Carolina. Shea Denning, Christopher Tyner, and I are the authors. It’s an important topic given that North Carolina officers conduct more than a million traffic stops each year and that many criminal cases, small and large, begin with a motor vehicle stop. This post provides more information about the book.

Several years ago, I wrote about law enforcement use of cell site simulators, or Stingrays, noting that “[t]here’s a controversy about the legal status of these devices.” This post discusses some new cases that attempt to resolve the controversy.

I wrote about law enforcement use of drones here, and a little bit here. It is now easier than before for law enforcement agencies to acquire drones, and some agencies have done so. But courts have yet to engage with the Fourth Amendment issues that some uses of drones may present. This post provides an update on where things stand with law enforcement use of drones.