Update on Drones

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.

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Establishing Probable Cause in a Search Warrant to Link the Residence to Be Searched With the Evidence to Be Seized

Last week, Jeff Welty wrote a post concerning the failure to allege in a search application that the premises to be searched is the suspect’s home, and it included a discussion of State v. Parson (N.C. App., October 18, 2016). This post supplements his post by discussing the issue of establishing probable cause to link a residence to be searched with evidence to be seized, and by adding a few other comments on Parson.

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Drug Users, Drug Sellers, and Probable Cause

Here’s a common fact pattern: Officers find a person in possession of drugs. The officers say, in effect, “we won’t arrest you if you’ll tell us who sold you the drugs.” The person then reports having recently purchased the drugs from a particular person at that person’s home. Does this provide probable cause to support a search warrant for the supplier’s home?

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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.

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Probable Cause and Search Warrants for Cell Phones

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?

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Utah v. Strieff and the Attenuation Doctrine

(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.

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

Last year, a panel of the Fourth Circuit decided United States v. Graham, 796 F.3d 332 (4th 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.

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

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).

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