For our last official criminal justice class, we heard from five more teams of students about their research projects. (At the students’ request, we also scheduled an extra evening session to watch the third best movie ever made about the law and lawyers—answer at the end of this post.) Once again, the students worked on a wide range of topics and, once again, I learned from the students. Here are some quick takeaways along with a brief discussion of one of the topics—double jeopardy, or more accurately, the absence of double jeopardy protections in the UK. Continue reading
Tag Archives: search
For U.S. readers, the title of this post may not seem quite right. You’ve heard of stops, based on either reasonable suspicion or probable cause, and frisks for weapons following a stop. You know about racial disparities in criminal justice data. But, what’s stop and account? Stop and search? And, how do they differ from stops and frisks? As I’m in London for the fall, the answer is pretty obvious that these terms refer to police authority in the UK. What may be less obvious is how this authority resembles the stopping powers of law enforcement officers in the US. Continue reading →
On Friday, the Supreme Court issued a long-awaited opinion in Carpenter v. United States. The Court held that when law enforcement obtains long-term cell site location information from a suspect’s service provider, it conducts a Fourth Amendment search that normally requires a warrant. Although the majority opinion states that it “is a narrow one,” the dissenting Justices and some scholars see it as a seismic shift that may have many aftershocks. I’ll summarize the case and then use former Secretary of Defense Donald Rumsfeld’s famous approach to address the “known knowns,” the “known unknowns,” and the “unknown unknowns” after Carpenter. Continue reading →
Author’s note: The North Carolina Supreme Court in State v. Terrell, ___ N.C. ___, 831 S.E.2d 17 (Aug. 16, 2019), affirmed the court of appeals judgment discussed below. The state supreme court’s decision is discussed here.
More than thirty years ago, the U.S. Supreme Court in United States v. Jacobson, 466 U.S. 109 (1984), defined the private search doctrine. Jacobson held that the Fourth Amendment is not implicated by the government’s inspection of private effects when that inspection follows on the heels of a private party’s search and does not exceed its scope. This is because the search by the private party frustrates an individual’s reasonable expectation of privacy regarding the item or area searched.
Jacobson thus determined that federal agents’ warrantless examination of a package of cocaine discovered by Federal Express employees and their field testing of its contents was not a Fourth Amendment search. When federal agents inspected the contents of the package, they “learn[ed] nothing that had not previously been learned during the private search,” and when they tested the substance to determine whether it was cocaine, they did not abridge any legitimate privacy interest.
In the ensuing decades, state and federal courts have applied and refined this analysis to determine the lawfulness of warrantless governmental searches of videotapes, computer disks, luggage, and other items turned over to law enforcement officials by private parties. And yesterday, the North Carolina Court of Appeals in State v. Terrell, ___ N.C. App. ___ (2018), considered whether the private-search doctrine insulated from Fourth Amendment scrutiny the government’s search of a USB flash drive turned over by the defendant’s girlfriend after she discovered among its contents a photo of her nine-year-old granddaughter sleeping without a shirt on.
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 →
The new edition of Arrest, Search, and Investigation in North Carolina, Fifth Edition, 2016 is now available. Continue reading for additional information. Continue reading →
May an officer search a motor vehicle based on the officer’s detection of the odor of marijuana coming from the vehicle? May the officer search the occupants of the vehicle? Several recent cases address these questions. Continue reading →
The United States Supreme Court heard oral arguments this morning in three cases involving the chemical testing of impaired drivers. The question before the court in each case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. I’m eager to hear what the high court has to say about this issue and to learn whether it will impact North Carolina’s implied consent laws, which, like the laws in every other state, do provide for warrantless chemical testing, but which do not criminalize refusal to be tested. But we don’t have to wait for the Supreme Court’s opinion to see how our state’s implied consent laws are evolving in a post-Missouri v. McNeely world. The North Carolina Court of Appeals decided a significant case yesterday, ruling in State v. Romano, __ N.C. App. ___ (2016), that the warrantless withdrawal of blood from an unconscious impaired driving suspect violated the Fourth Amendment, notwithstanding a state statute that permits such actions.
United States Supreme Court Clarifies When Consent to Search by One Residential Occupant Is Valid When a Co-Occupant Has Previously Objected
Last week the United States Supreme Court in Fernandez v. California (February 25, 2014) clarified an issue left open in its ruling in Georgia v. Randolph, 547 U.S. 103 (2006): the validity of a consent search by a residential occupant after a co-occupant has previously objected to a search but is no longer physically present when the occupant consents.
Facts. Defendant Fernandez was involved in an armed robbery. Responding officers saw a man apparently involved in the robbery run into a building. A few minutes later, the officers heard sounds of screaming and fighting coming from an apartment in that building. Roxanne Rojas responded to the officers’ knock on the door. She had fresh injuries and admitted she had been in a fight. After an officer asked her to step out of the apartment so he could conduct a protective sweep, Fernandez appeared at the door and told the officers that they didn’t have any right to enter. (Both Fernandez and Rojas were lawful occupants of the apartment.) Believing that Fernandez had assaulted Rojas, the officers arrested him and took him to the police station. An hour later an officer returned to the apartment and obtained consent from Rojas to search the apartment. The defendant’s motion to suppress evidence discovered in the apartment was denied, and he was convicted of robbery and assault.
Legal background. The United States Supreme Court has long recognized valid consent as a lawful way that officers may enter premises without a search warrant or another recognized justification under the Fourth Amendment. In United States v. Matlock, 415 U.S. 164 (1974), the defendant, a co-occupant, had been arrested in the front yard and placed in an officer’s vehicle. Officers then went to the front door and obtained the consent of a co-occupant (the defendant never had objected to the search). The Court ruled that a search of jointly-occupied premises when one of the occupants consents does not violate the Fourth Amendment. The Court in Georgia v. Randolph, however, recognized an exception to Matlock when it ruled that consent to search by one of the occupants is insufficient when a co-occupant is present and objecting to the search.
The Court’s ruling. The Fernandez case involved a variation of Randolph because Rojas’s consent to search occurred well after officers had removed Fernandez. Thus, unlike Randolph, Fernandez was not physically present and objecting when Rojas consented. The Court distinguished Randolph and ruled that Rojas’s consent to search was valid under the Fourth Amendment. The Court noted that Randolph had stressed that its ruling was limited to situations when an objecting occupant was physically present when the co-occupant consented to the search. The Court rejected Fernandez’s argument that the objecting occupant’s continued physical presence is not required to bar a co-occupant’s later consent. The Court ruled that as long as officers have an objectively reasonable basis to remove the defendant (that is, the officers’ subjective motive for removal is irrelevant), the co-occupant’s later consent is sufficient. In this case, the officers properly removed Fernandez so they could speak with Rojas outside Fernandez’s intimidating presence. Also, there was probable cause to arrest Fernandez for an assault on Rojas. The Court rejected another of Fernandez’s arguments that his objection to a search should remain effective until he changed his mind and withdrew his objection, despite Rojas’s later consent.
Post-Fernandez issue. With an objecting occupant’s physical presence given prominence in Fernandez, there remains how physical presence will be defined in future cases. Does the objecting occupant need to be present exactly where the co-occupant is consenting or is it sufficient if he or she is somewhere on or near the premises? The Court appeared to indicate that on or near the premises may be sufficient because it cited Bailey v. United States, 133 S. Ct. 1031 (2013) (detaining occupants of premises during search warrant execution is limited to immediate vicinity of premises to be searched). But the Court did not decide the issue, and a future Court may decide it differently.
Advice to officers. When officers are unsure of their authority to search pursuant to the consent of one occupant when another occupant is objecting, they may wish to consult with their agency’s legal advisor or obtain a search warrant if probable cause exists to search the premises. Or sometimes there will be other legal grounds to enter premises without consent or a search warrant, such as the immediate need to protect a victim from harm, seize weapons for self-protection, make a protective sweep, etc. See the Court’s discussion in Georgia v. Randolph, 547 U.S. at 118-19. See also Arrest, Search, and Investigation in North Carolina, 232-33 (4th ed. 2011), and its 2013 supplement at 28.
Law enforcement officers are making more and more use of video surveillance cameras, often mounted on utility poles. Sometimes these cameras are focused on streets or parks, as discussed in this Fayetteville Observer article. Sometimes they are focused on suspects’ residences. (Sometimes, hidden cameras are installed inside residences or other private areas, but such uses are beyond the scope of this post.) I’ve been asked several times whether there are any legal limitations on the use of such cameras. I’ll do my best to answer that question in this post.
Statutory law. In general, statutory law does not limit the use of such cameras. State and federal electronic surveillance statutes focus on audio interception and do not apply to video surveillance. See G.S. 15A-286 et seq.; 18 U.S.C. § 2510 et seq.
Fourth Amendment – pre-Jones. With few or no statutory constraints, the key question concerns constitutional limits on the use of video surveillance cameras. Historically, surveillance cameras have not been seen as implicating the Fourth Amendment because the cameras are generally installed in locations accessible to the public, and there is no reasonable expectation of privacy in areas that are exposed to public view. Cases illustrating this perspective include the following:
- United States v. Vankesteren, 553 F.3d 286 (4th Cir. 2009) (officers investigating allegations of unlawful bird trapping installed a motion-activated camera in the defendant’s open field; this did not implicate the Fourth Amendment, for while “[t]he idea of a video camera constantly recording activities on one’s property is undoubtedly unsettling to some . . . . [a]nyone could have walked onto [the suspect’s] property . . . and observed his traps”; in fact, officers could have remained there “twenty-four hours a day,” and the fact “[t]hat the agents chose to use a more resource-efficient surveillance method does not change [the] Fourth Amendment analysis”; “[s]ince [the defendant] had no legitimate expectation of privacy, the agents were free . . . to use video surveillance to capture what any passerby would have been able to observe . . . . Essentially, the camera did little more than the agents themselves could have physically done, and its use was therefore not unconstitutional.”)
- United States v. McIver, 186 F.3d 1119 (9th Cir. 1999) (officers installed surveillance cameras in a national forest to monitor a patch of marijuana plants; this did not violate the defendants’ reasonable expectation of privacy)
Fourth Amendment – effect of Jones. The above analysis may be affected by United States v. Jones, 565 U.S. __ (2012). The holding of Jones was that the installation of a GPS tracking device on a suspect’s vehicle was a Fourth Amendment search because it involved a physical intrusion into the vehicle for the purpose of obtaining information. However, five Justices – the four who joined Justice Alito’s concurrence in the judgment plus Justice Sotomayor – also expressed the view that prolonged GPS monitoring intrudes upon a suspect’s reasonable expectation of privacy and so is a search under the Fourth Amendment. The Justices reasoned that although short-term monitoring of a suspect’s movement on the public roads may not intrude upon a reasonable expectation of privacy, long-term monitoring generates so much information about a suspect’s movements and activities that the aggregate effect is an invasion of privacy.
Although Jones concerned tracking a suspect’s movements, it could be used to support a broader argument about long-term electronic surveillance. One could contend that under Jones, while the police are free to observe a suspect’s residence from the public streets to see who comes and goes, permanent round-the-clock video surveillance is substantially more intrusive and is a search for purposes of the Fourth Amendment.
Early decisions on point. Several courts have considered this argument. None of the decisions are from North Carolina, and they are inconclusive on the issue. Nonetheless, they suggest that judges are taking seriously the idea that Jones may matter outside the context of GPS tracking. Here are the decisions of which I am aware:
- United States v. Houston, __ F.Supp.2d __, 2013 WL 3975591 (E.D. Tenn. July 30, 2013) (investigation of defendant’s family for firearms offenses included the installation of “a video camera . . . on a utility pole adjacent to the . . . family property” for a period of about three months, the first two without judicial authorization; although all areas covered by the camera could be viewed from the street with the naked eye, the court ruled that “ten weeks [of surveillance] crosses into the unreasonable” and is “suggestive of the Orwellian state”; however, the court did not apply the exclusionary rule because “at the time officers installed the subject pole camera, no court had required a search warrant to conduct video surveillance of an unobstructed curtilage”)
- United States v. Anderson-Bagshaw, 2012 WL 6600331 (6th Cir. Dec. 19, 2012) (unpublished) (investigation of defendant’s fraudulent disability claim included the installation of “a video camera on a utility pole overlooking [her] backyard”; the camera was in place 24 days and captured the defendant “mowing the lawn, raking, caring for and herding . . . alpacas, and pushing a wheelbarrow” but also her “husband naked and her son relieving himself against a tree”; the court ruled that the backyard was within the curtilage of the defendant’s home but could be seen from the street; the court did not resolve the question of whether the surveillance constituted a search, but expressed “misgivings about a rule that would allow the government to conduct long-term video surveillance of a person’s backyard without a warrant” and noted that five Justices indicated a concern with long-term surveillance in Jones; the court stated that any Fourth Amendment violation was harmless in light of the other evidence supporting the defendant’s conviction)
- United States v. Brooks, 911 F.Supp.2d 836 (D. Ariz. 2012) (drug trafficking investigation included installation of a video camera on a service pole overlooking defendant’s apartment building; camera could record images of the “stairwell, the building’s balconies, and the surrounding open parking spaces and parking lot,” and yielded evidence of drug crimes; defendant moved to suppress, arguing that “that five members of the United States Supreme Court [suggested in Jones] that long-term continuous surveillance violates a person’s Fourth Amendment rights because it allows government officials to record and aggregate a person’s activities in a way that violates a person’s expectation of privacy”; court concludes that while “in some future case” the Court might restrict long-term camera surveillance, the actual holding of Jones did not encompass these facts; everything recorded by the camera was visible from a “public vantage point,” so the use of the camera did not implicate the Fourth Amendment).
Advice for officers. Nothing in Jones calls into question the use of surveillance cameras that are focused on public streets, parks, and other public areas. For example, if drug activity is commonplace at a particular intersection, the Fourth Amendment does not preclude placing a surveillance camera on a light pole facing that intersection. However, when an officer wants to focus a surveillance camera on a suspect’s residence, the officer should be aware that a court might rule that long-term use of such a camera constitutes a Fourth Amendment search. A cautious officer may therefore wish to seek a court order authorizing the use of the camera. No case or statute sets out the proper procedure for obtaining such an order, but it likely would be similar to obtaining a search warrant or other investigative court order in that it could be sought ex parte and would need to be supported by an affidavit establishing probable cause.
As always, I welcome thoughts, comments, reactions, and citations to additional relevant cases and authorities.