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.
search warrants
State v. Elder: DVPO Cannot Authorize Search for Guns
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?
Book on Digital Evidence Now Available
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.
Article for Officers and Others on Search Warrants for Digital Devices
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.
Is Apple Intentionally Crippling Law Enforcement Access to Digital Evidence?
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?
Search Warrants for Meth Labs
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 … Read more
Heavy Traffic to a Residence and Probable Cause
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 … Read more
Returns and Inventories for Computer Search Warrants
More and more criminal investigations involve searches of computers and other digital devices. It is sometimes difficult to apply long-established search and seizure law to the practical realities of digital investigations. One example of this phenomenon concerns the preparation of the return and the inventory after the execution of a search warrant, a topic of … Read more
Searching a Person Based on the Smell of Marijuana
The question. Many cases hold that the smell of marijuana provides probable cause to search a vehicle. See, e.g., State v. Greenwood, 301 N.C. 705, 708 (1981); State v. Smith, 192 N.C. App. 690 (2008) (“When an officer detects the odor of marijuana emanating from a vehicle, probable cause exists for a warrantless search of … Read more
Obtaining a Search Warrant after Charges Have Been Brought
Most search warrants are obtained before anyone has been charged with a crime. But sometimes officers will charge a defendant and then decide to obtain a search warrant to seek additional evidence. In such a case, may investigators still obtain a search warrant from a magistrate, or does a magistrate lose jurisdiction over the case … Read more