In preparation for some upcoming teaching, I’ve been brushing up on anticipatory search warrants. Such warrants authorize a search, but only once a “triggering condition” takes place. The most common scenario involves the controlled delivery of drugs that have been intercepted in transit. The warrant authorizes the search of the destination residence, but only once the drugs have been delivered. Case law establishes that a warrant may issue only if the drugs are on a “sure course” towards delivery. This post asks why – and whether – that should be the case.
Suppose a superior court judge issues a search warrant authorizing the search of a suspect’s house for drugs. Officers execute the warrant, find drugs, seize them, and charge the suspect with drug offenses. The charges end up in superior court, where the suspect – now the defendant – moves to suppress, arguing that the search warrant application lacked probable cause and that the judge who issued the warrant erred in doing so. Is it OK for the judge who issued the warrant to hear such a motion?
I recently finished a paper on the law and practice of no-knock warrants in North Carolina. I went with the creative title, The Law and Practice of No-Knock Search Warrants in North Carolina. You can access the paper here. To give you a sense of the contents, here’s a paragraph from the introduction that notes some … Read more
Last week, the FBI searched former President Trump’s home at the Mar-a-Lago Club pursuant to a search warrant. At first none of the relevant documents were publicly available. The application, the warrant itself, and the inventory were all sealed. The Government, with the consent of former President Trump, later moved to unseal the warrant and the inventory. That motion was granted and anyone can access the now-public documents here. The application remains under seal, though members of the news media have moved to unseal it. Because several people asked me about public access to federal search warrants and related documents, and because the process isn’t exactly the same as it is under state law, I thought I’d do a post comparing state and federal law on this issue.
Over the past several months, I’ve been dropping by clerks’ offices to look at search warrants. I’ve made it to six offices, including offices in eastern, central, and western North Carolina, and in urban and rural areas. I’ve reviewed and made notes on 279 warrants and have at least skimmed hundreds more. The warrants I’ve reviewed were sought by 38 different agencies for a range of offenses. What follows are a few observations based on what I saw.
I’ve had several questions lately about the requirement in G.S. 15A-248 that “[a] search warrant must be executed within 48 hours from the time of issuance.” The specific concern is how this applies to searches of digital devices, which frequently require off-site forensic analysis that may not begin, let alone end, until substantially more than 48 hours after issuance of the warrant. Although we don’t have an appellate case on point in North Carolina, courts in other jurisdictions have held that so long as the initial seizure of the device is timely, the forensic analysis may be conducted later.
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.
WRAL has several stories up about geofencing warrants. One major article is here. It describes a search warrant obtained by the Raleigh Police Department in a murder case. The warrant ordered “Google [to] hand over the locations of every [mobile] device within the confines of [a defined geographic area] during a specified time period.” In a nutshell, the police were trying to figure out who was near the scene of the crime when the murder took place and asked Google to comb its data banks to find out. This post is intended to start a conversation about warrants of this kind.
While preparing to teach a recent class about search warrants for digital devices, I spoke with a number of experts in digital forensics. Each conversation was very helpful. Almost all of them touched on an issue I’d never previously considered: whether search warrants for cell phones do or may include the authority to search connected cloud services.
There have been several recent cases regarding delays in obtaining search warrants for digital devices that have been lawfully seized. For example, in United States v. Pratt, 915 F.3d 266 (4th Cir. 2019), officers seized a suspect’s phone based on the suspect’s admission that it contained nude pictures of an underage girl. The opinion doesn’t say, but I assume that the basis of the seizure was risk of destruction of evidence. However, the officers didn’t obtain a search warrant for the phone for 31 days. On appeal, the Fourth Circuit ruled that the delay was unreasonable in violation of the Fourth Amendment. It turns out that Pratt isn’t alone.