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?
Tag Archives: search warrants
G.S. 15A-245 provides that information other than that contained in a search warrant affidavit may not be considered by the issuing official in determining whether probable cause exists to issue the warrant unless the information is either recorded or contemporaneously summarized in the record or on the face of the warrant by the issuing official. This is commonly known as the “four corners” rule because the issuing official and later a judge at a suppression hearing may only consider information within the four corners of the search warrant (with the limited exception mentioned above). The issue does not arise often in appellate court opinions. However, it was involved in the June 21, 2016, North Carolina Court Appeals case of State v. Brown, available here, and is the subject of this post. Continue reading →
Here’s a question that comes up from time to time: May a search warrant issue for a residence in which an apparent suicide has taken place, in order to rule out the possibility of foul play? Generally, I don’t think so, for the reasons given below. Continue reading →
I’ve had the same question several times recently: can a magistrate issue a search warrant for a computer or a cell phone? The answer is yes. This post explains why that’s so, and why there’s some confusion about the issue. Continue reading →
A judge who issues an emergency or ex parte domestic violence protective order must order the defendant to surrender all firearms in his care, custody or control if the judge makes certain findings about the defendant’s prior conduct. Among the findings that trigger the weapons-surrender requirement is a finding that the defendant used or threatened to use a deadly weapon or has a pattern of prior conduct involving the use or threatened use of violence with a firearm. A defendant served with such an order must immediately surrender his firearms to the sheriff. If the weapons cannot be immediately surrendered, he must surrender them within 24 hours. But what if the defendant does not turn over any firearms? May the protective order authorize the sheriff to search the defendant, his home, and/or his vehicle for such weapons?
I’m happy to announce that my book on digital evidence is now available. There are five chapters, covering (1) search warrants for digital devices, (2) warrantless searches of digital devices, (3) law enforcement access to electronic communications, (4) tracking devices, and (5) the admissibility of electronic evidence. Continue reading →
Years ago, the School of Government did quite a bit of training for the Highway Patrol and other law enforcement officers. These days, we focus most of our criminal law courses on judges, lawyers, and magistrates. But I still view officers as an important audience for our work, and I recently wrote an article for Police Chief magazine that is meant to help officers obtain valid search warrants for digital devices.
Apple recently announced new iPhones and a new operating system for its mobile devices. Amidst the hubbub, Apple also revealed that the new operating system would render it impossible for Apple to give law enforcement officers access to locked iPhones, even with a search warrant. Many in law enforcement aren’t happy about this, with FBI Director James Comey stating that he can’t understand why companies would “market something expressly to allow people to place themselves beyond the law.” But is that what’s going on? Continue reading →
I’ve had several questions lately concerning search warrants for meth labs. The basic issue is whether officers who find hazardous chemicals and other dangerous items may destroy them right away, before the defendant has a chance to examine and test them. Related questions include whether a judge has the power to authorize such destruction when issuing a search warrant; what steps officers should take to photograph or otherwise document items that they plan to destroy; and how courts should analyze arguments by the defense that the destroyed items had exculpatory potential.
All these questions turn out to be complicated and interesting, and the resulting analysis became too long for a blog post. I turned it into a short paper in PDF format. The paper is available here. As always, I welcome comments and feedback of all kinds.
The court of appeals decided a case today concerning a fact pattern that arises frequently in drug cases.
State v. McKinney began when an officer received a “citizen complaint” about “heavy traffic in and out of” a particular apartment, with the visitors staying only a short time. The citizen stated that he or she had “witnessed individuals exchanging narcotics in the parking lot with the person who lived in the apartment.” The officer set up surveillance on the apartment, and promptly saw an individual arrive, enter the apartment, and leave six minutes later. Another officer followed the visitor and stopped him for a traffic violation. The visitor had a history of narcotics arrests, and his car contained $4,258 and a gallon-sized bag with just 7 grams of marijuana inside. His cell phone showed recent text messages that appeared to concern a drug transaction. For example, about half an hour before the visitor’s arrival at the apartment, he received a text message stating, “when you come out to get the money can you bring me a fat 25. I got the bread.”
The officer obtained a search warrant for the apartment based on the above information. He executed the warrant, finding drugs and guns. The defendant, the occupant of the apartment, was arrested and charged with several offenses. He moved to suppress, arguing that the warrant was not supported by probable cause, but his motion was denied. He pled guilty and appealed.
The court of appeals reversed, ruling that probable cause was absent. It focused on the lack of evidence concerning the inside of the apartment, noting that neither the officer nor the citizen “witnessed any narcotics in or about the apartment,” and stating that although the officer saw the visitor enter the apartment, there was “nothing in his affidavit which suggests that he saw [the visitor] carry marijuana or anything else inside.” The court cited State v. Crisp, 19 N.C. App. 456 (1973) (finding no probable cause where there was heavy traffic into and out of a residence at all hours and a traffic stop of a resident revealed drugs on his person and in his vehicle), and State v. Hunt, 150 N.C. App. 101 (2002) (finding no probable cause where an officer received complaints of suspicious traffic at a residence and verified that a large number of vehicles visited the residence briefly).
This strikes me as a fairly close case that another court might view differently. For example, a Texas appellate court found sufficient probable cause to search a residence based mostly on a stream of short visits to the residence plus nearby outdoor hand-to-hand transactions. Polanco v. State, 475 S.W.2d 763 (Tex. Ct. Cr. App. 1972). But in light of McKinney and its forbears, North Carolina officers should look for factors like an odor associated with controlled substances, a customer’s admission that he or she purchased drugs at the residence, or a controlled buy or other evidence from an informant.