The question in the title of this post is an oversimplified version of the issue addressed by the court of appeals last week in State v. Bailey, __ N.C. App. __, __ S.E.2d __, 2019 WL 3925864 (Aug. 20, 2019). But it isn’t oversimplified by much, and the appellate division may be inching closer to answering the question in the affirmative.
Law enforcement officers often seek search warrants for suspects’ cell phones. When they do, judicial officials must determine what sort of evidence is needed to support the issuance of a warrant. Many people have their phones with them at all times, and use their phones to document and discuss every aspect of their daily activities. Does that mean that when an officer has probable cause to believe that a suspect committed a crime, the officer automatically has probable cause to search the suspect’s cell phone for evidence of the crime? Or does the officer need a more specific nexus between the crime and the phone?
Last week a three-judge panel of the North Carolina Court of Appeals in State v. Allman (5 Jan. 2016), ruled (2-1) that a search warrant to search a residence for drugs was not supported by probable cause because the affidavit failed to link the residence to drug activity that had occurred elsewhere. This post discusses some of the interesting issues in this case, including possible state supreme court review.