fourth amendment Archives – Page 8 of 17 – North Carolina Criminal Law

Utah v. Strieff and the Attenuation Doctrine

July 7, 2016July 6, 2016 Shea Denning

(Author’s note: The concluding paragraph of this post was amended after its publication to include the number of outstanding warrants and orders for arrest on July 1, 2016.)

Every year, the June trifecta throws me off my game. First, school lets out so I have to acclimate to a schedule of camps that vary in operating hours, locations, necessary equipment, and participating child. Second, the district court judges convene for their annual conference where I join them to oversee the program and to lecture about criminal law cases decided since the previous October. Third, the United States Supreme Court winds up its term, invariably deciding significant criminal law cases the very week of the conference. Since judges are no better than my children in cutting me a little slack (Am I really the only mother who didn’t know you needed to bring a racket to tennis camp?), they bombarded me the day the conference began to ask about the attenuation doctrine and its application in Utah v. Strieff (decided the day before). I mumbled something about the Christian burial speech and quickly asked how their summers were going. Now that June is behind me, I’ve collected my thoughts and am prepared to talk about Strieff.

Fourth Circuit Reverses Graham: No Warrant Required for Historical Cell Site Location Information

June 6, 2016 Jeff Welty

Last year, a panel of the Fourth Circuit decided United States v. Graham, 796 F.3d 332 (4^th Cir. 2015). The panel ruled that “the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical [cell site location information (CSLI)] for an extended period of time. . . . Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.” I discussed Graham here and here. Last week, the en banc Fourth Circuit reversed the panel, ruling that under the third-party doctrine, a cell phone subscriber has no reasonable expectation of privacy in historical cell site location information that he or she shares with a service provider, so it isn’t a Fourth Amendment “search” when law enforcement obtains such information, and a warrant isn’t required. The en banc opinion is here. This post discusses the opinion and considers the possibility of Supreme Court review or action by Congress.

What Level of Suspicion Is Required to Arrest for a Probation Violation?

June 2, 2016June 1, 2016 Jamie Markham

There aren’t very many federal cases about North Carolina probation. When we get one, I’m inclined to write about it. In Jones v. Chandrasuwan, __ F.3d __ (4th Cir. 2016), the Fourth Circuit announced a new rule about the level of suspicion required to arrest a probationer for a suspected probation violation.

May an Officer Assume a False Identity Online in Order to “Friend” a Suspect?

June 1, 2018May 17, 2016 Jeff Welty

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.

Court of Appeals Finds Extension of Traffic Stop Unsupported by Reasonable Suspicion

May 9, 2016 Jeff Welty

Last week, the court of appeals decided State v. Bedient, a significant post-Rodriguez opinion on traffic stops. The court ruled that an officer lacked reasonable suspicion to extend a stop by a few seconds to ask the driver for consent to search. This post summarizes and analyzes the case.

Warrant Required for Testing of Unconscious DWI Suspect

April 20, 2016 Shea Denning

The United States Supreme Court heard oral arguments this morning in three cases involving the chemical testing of impaired drivers. The question before the court in each case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. I’m eager to hear what the high court has to say about this issue and to learn whether it will impact North Carolina’s implied consent laws, which, like the laws in every other state, do provide for warrantless chemical testing, but which do not criminalize refusal to be tested. But we don’t have to wait for the Supreme Court’s opinion to see how our state’s implied consent laws are evolving in a post-Missouri v. McNeely world. The North Carolina Court of Appeals decided a significant case yesterday, ruling in State v. Romano, __ N.C. App. ___ (2016), that the warrantless withdrawal of blood from an unconscious impaired driving suspect violated the Fourth Amendment, notwithstanding a state statute that permits such actions.

North Carolina Supreme Court Affirms Post-Rodriguez Court of Appeals Ruling in State v. Warren

March 22, 2016 Bob Farb

Last April, 2015, the United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), significantly limited the scope of a traffic stop. The Court ruled that an officer may not extend a completed traffic stop for any period of time, no matter how brief, to conduct a dog sniff—absent reasonable suspicion of criminal activity (or consent). The Court rejected the government’s argument that an officer may incrementally prolong a traffic stop, which some lower courts, including North Carolina’s, had justified as a de minimis intrusion. The Court reasoned that a dog alert is not a permissible part of a traffic stop because it detects evidence of ordinary criminal wrongdoing, which is not part of an officer’s traffic mission. The Court, however, clearly indicated that if a dog sniff or other non-traffic-related activity does not add any time to the stop (in this case, it added 7–8 minutes), then the dog sniff or other activity is valid under the Fourth Amendment, as it previously had ruled in Illinois v. Caballes, 543 U.S. 405 (2005).

Do DWI Suspects Have a Right to the Least Intrusive Chemical Test?

March 10, 2016March 10, 2016 Shea Denning

In its seminal opinion establishing the State’s right to withdraw blood from a DWI suspect over his objection and without a warrant when there are exigent circumstances, the United States Supreme Court left a significant question unanswered. The court in Schmerber v. California, 384 U.S. 747 (1966), noted that the petitioner “is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the ‘Breathalyzer’ test petitioner refused. . . . We need not decide whether such wishes would have to be respected.” Id. at 771.

So how have courts in the ensuing four decades answered this question? Must an impaired driving suspect be offered the least intrusive type of chemical test available or a choice about the type of testing when he or she has a sincere objection to a particular test?

North Carolina Court of Appeals Issues Ruling on a Strip Search by Law Enforcement Officers

February 23, 2016February 23, 2016 Bob Farb

In 2013, I wrote two posts on strip searches by law enforcement officers, which are available here and here. This post discusses the first published North Carolina appellate court strip search case since these posts: State v. Collins, 2016 WL 385690 (N.C. App., Feb. 2, 2016).