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? Continue reading
Tag Archives: search warrant
I have a “friend” whose teenage son was caught using his cell phone in class. The teacher saw him using it and took the phone. She looked at the phone when she picked it up and saw displayed on its screen a snapchat from another student in the class. So she took the other student’s phone too. My friend wanted to know what the teacher’s options were after that. Could she search the contents of the cell phones she had seized? Continue reading →
Search warrant applications are often based on information from confidential informants. Whether the informant is reliable is critical. Information from a reliable informant is often sufficient to establish probable cause, while information from an informant whose reliability isn’t established is often insufficient. So how’s a magistrate to know whether an informant is reliable? A recent opinion from the court of appeals provides an opportunity to examine that question. Continue reading →
On December 21, 2016, the North Carolina Supreme Court in State v. Allman upheld a magistrate’s finding of probable cause to search a home for drugs, and it reversed a contrary ruling in this case by the North Carolina Court of Appeals. The Allman ruling is the subject of this post. Continue reading →
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? Continue reading →
The Fourth Amendment’s exclusionary rule generally bars the introduction of evidence seized in violation of its provisions. State constitutions, statutes, and rules also may bar the introduction of evidence even when the Fourth Amendment’s exclusionary rule does not.
The preparation and service of an inventory of items taken during the execution of a search warrant is not likely a Fourth Amendment requirement, and thus the exclusionary rule would be inapplicable to inventory issues. Cf. State v. Dobbins, 306 N.C. 342 (1982) (a search warrant’s return not being sworn was not a constitutional violation).
On the other hand, G.S. 15A-974 bars under some circumstances the introduction of evidence obtained in violation of Chapter 15A of the General Statutes. Evidence is to be excluded if: (1) it is obtained as a result of a “substantial” violation of Chapter 15A, and (2) the officer committing the violation did not act under an objectively reasonable good faith belief that his or her actions were lawful.
Last week, the North Carolina Court of Appeals in State v. Downey (September 6, 2016) considered a defendant’s argument that G.S. 15A-974 should have barred evidence seized pursuant to a search warrant because an officer allegedly did not comply with G.S. 15A-254, which essentially requires the completion an inventory of seized items and leaving a copy in the manner set out in the statute. The Downey ruling is the topic of this post. Continue reading →
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. Continue reading →
Last week, the court of appeals decided State v. Perry. It’s the appellate division’s first foray into cell site location information and a case that raises questions about the status of the exclusionary rule in North Carolina. Continue reading →
Don’t call the School of Government next week. We’ll all be out. Next week is conference-time for many of the court officials we serve, and we will be traversing the state (driving the speed limit at all times, of course) to speak at various legal conferences. Case updates are a perennial staple of these conference agendas, so I’ve been reviewing last year’s cases with a particular focus on impaired driving. A number of opinions address issues that are frequently litigated in DWI cases, so I thought I’d share the highlights with you in a two-part post. This post reviews the past year’s jurisprudence on implied consent testing and compelled blood draws. Tomorrow’s post will review the recent case law on reasonable suspicion and probable cause for DWI. Continue reading →
The court of appeals decided its first post-Missouri v. McNeely alcohol exigency case yesterday. The court in State v. Dahlquist determined that the four to five hours that the arresting officer estimated would have elapsed had he first traveled to the intake center at the jail to obtain a search warrant and then taken the defendant to the hospital for a blood draw constituted an exigency sufficient to excuse the Fourth Amendment’s warrant requirement. Thus, the Dahlquist court held that the trial court properly denied the defendant’s motion to suppress as the warrantless withdrawal of the defendant’s blood at a nearby hospital over his objection was lawful. What’s most interesting about the case is not its holding, presaged by State v. Fletcher, 202 N.C. App. 107 (2010), and McNeely itself, but instead its dicta. The court stated that while it found an exigency in this case, officers should consider amending their post-arrest procedures in future cases in two respects. First, where the technology is available, they should testify in support of search warrants by videoconference as authorized by G.S. 15A-245. Second, rather than estimating wait times based on past experience, officers should call magistrates’ offices and hospitals to obtain current information about wait times.
Facts. Dahlquist was a relatively routine impaired driving case. The defendant was stopped at a DWI checkpoint in the Charlotte area in the early morning hours. He smelled strongly of alcohol, admitted to drinking, and failed several field sobriety tests. He was arrested for DWI and taken to a Blood Alcohol Testing (“BAT”) mobile for purposes for a breath test. He refused to submit to the test. The officer then took the defendant to Mercy Hospital where his blood was drawn without his consent.
Procedural history. The defendant moved in superior court to suppress the evidence of his alcohol concentration obtained from the warrantless withdrawal of his blood. The superior court denied the motion, and the jury found him guilty of driving while impaired. The defendant appealed the denial of his motion to suppress.
Court of appeals opinion. The appellate court noted the Supreme Court’s holding in McNeely that the natural dissipation of alcohol, standing alone, does not create an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement. As a result, whether an exigency exists must be determined case by case based on a totality of the circumstances. Thus, the question before the Dahlquist court was whether the circumstances in that case gave rise to an exigency sufficient to justify a warrantless search.
As previously noted, the trial court concluded that they did, and the court of appeals agreed. The officer took the defendant directly to the hospital because “he knew that over time the amount of alcohol in blood dissipates.” Slip op. at 7. The officer also “knew from his years of experience” that the hospital was fifteen minutes away and that he could obtain a sample of the defendant’s blood from hospital staff within an hour after arriving. Id. The officer “surmised from his past experience that, on a weekend night, it would take between four and five hours to obtain a blood sample if he first had to travel to the [magistrate’s office] to obtain a search warrant.” Slip op. at 8.
Dicta. After concluding that the trial court properly denied the defendant’s motion to suppress, the court of appeals elected to “elaborate on one point” related to the procedure for obtaining a warrant, namely “advances in technology,” a topic also addressed in McNeely. The Supreme Court in McNeely noted that federal magistrate judges may issue warrants based on information communicated by telephone or other electronic means and that most states allow police or prosecutors to apply for search warrants remotely using the telephone, video-conferencing and electronic communication. The Dahlquist court noted that G.S. 15A-245(a) was amended in 2005 to allow a search warrant to be issued based on audiovisual transmission of oral testimony under oath or affirmation from a sworn law enforcement officer to the issuing official. (Before this procedure may be used, the senior resident superior court judge and chief district court judge must obtain the approval of the Administrative Office of the Courts.) Yet the officer in Dahlquist assumed he had only two options: (1) travel to the magistrate’s office and risk the loss of evidence; or (2) proceed to the hospital without a warrant. The court encouraged officers to consider the option of testifying in support of search warrants by videoconference.
As noted earlier, the court also said that the “better practice in such cases might be for an arresting officer, where practical, to call the hospital and the [magistrate’s office] to obtain information regarding the wait times on that specific night, rather than relying on previous experiences.”
Practical concerns. When G.S. 15A-245 was amended in 2005 to allow officers to testify in support of search warrants by videoconference, my colleague John Rubin pointed out that that the act amending the statute, S.L. 2005-334, did not “address various implementation issues—for example, how the testimony will be memorialized and served.” John Rubin, Criminal Law and Procedure, North Carolina Legislation 2005, at 85 (Martha Harris, ed. 2006) (noting that the federal rules require that testimony be recorded, transcribed and certified as accurate by the issuing official; in addition, the issuing official must prepare an original warrant and the applicant must prepare a duplicate warrant for service). Whether as a result of these issues or the lack of available technology, my sense is that few, if any jurisdictions, use this procedure.
Bottom line. Police departments, in consultation with the courts in their districts, would be wise to consider whether using video-conference testimony from officers would expedite the process of obtaining a search warrant in impaired driving cases. While the Dahlquist court determined that the time required for the arresting officer to apply for the warrant in person created an exigency in that case, its commentary indicates that the court may, in a future case, factor the availability of videoconferencing technology into its totality of the circumstances analysis.
Moreover, officers shouldn’t guess at wait times when there is a practical alternative such as calling ahead. Dahlquist strongly hints that such estimates, even when based on experience, may weigh less heavily in the State’s favor in subsequent cases.