Archive for the ‘Search and Seizure’ Category

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Drug Dogs

Wednesday, November 18th, 2009

The court of appeals issued a batch of opinions yesterday. Among them is State v. Washburn, a drug dog case. An extremely compressed summary of Washburn is that an informant told the police that the defendant was a drug dealer and kept drugs at his house and at a storage unit. Based on the tip, the police took a drug dog to the storage facility, which was a climate-controlled building with storage units opening off an indoor hallway, and got the consent of the facility’s owner to walk the dog through the hallway. The dog alterted at the defendant’s unit, which led the police to get a search warrant for it, and things went downhill for the defendant pretty quickly after that.

The defendant first argued that “the dog sniff of the hallway outside of his locked storage unit constitute[d] an illegal warrantless search because he had a reasonable expectation of privacy in the storage facility, including the hallway area.” In other words, he argued that the police couldn’t come into the hallway at all. The court rejected that argument, noting that (1) the hallway wasn’t very private, since all the facility’s tenants had access to it, and (2) in any event, the facility’s owner consented.

The defendant’s second argument was that even if the police were lawfully in the hallway, the dog sniff itself was a search, supported neither by a search warrant nor an exception to the warrant requirement. The opinion says that the defendant cited United States v. Thomas, 757 F.2d 1359 (2nd Cir. 1985) (holding that use of a dog to sniff outside a suspect’s apartment was a Fourth Amendment search), as support for his contention. Of course, the United States Supreme Court has told us that using a drug dog to sniff luggage at an airport isn’t a search, United States v. Place, 462 U.S. 696 (1983), and that using a drug dog to sniff a vehicle during a traffic stop isn’t a search, Illinois v. Caballes, 543 U.S. 405 (2005). The rationale of those cases is that drug dogs detect only contraband, which cannot lawfully be possessed, and therefore invade no reasonable, i.e., legitimate, privacy interest. Following those cases, the court of appeals rejected the defendant’s argument and declined to distinguish storage unit sniffs from vehicle sniffs. (Some of this is reading between the lines, since the court’s treatment of this issue is rather brief.) The fact that Thomas predates Caballes probably didn’t help the defendant, though a leading commentator has argued that even after Caballes, sniffs of private premises, possibly including storage units, should count as searches. 1 Wayne R. LaFave, Search and Seizure § 2.2 (4th ed. 2004 & pocket part) (arguing the point and collecting a few cases, including State v. Davis, 732 N.W.2d 173 (Minn. 2007), adopting his view on state constitutional grounds); see also State v. Guillen, 213 P.3d 230 (Ariz. Ct. App. 2009) (similar, also on state constitutional grounds).

It appears that Washburn closes the door on the argument that dog sniffs of private premises are searches. Perhaps one could try to distinguish a sniff of a residence from a sniff of a storage unit, but nothing in the Washburn opinion suggests that the court would view the two situations as different for Fourth Amendment purposes. So is there any circumstance under which a drug dog sniff is a search? The most likely scenario is using a drug dog to sniff a person, which may be so physically intrusive that it is a search. There is pre-Caballes authority on point, such as United States v. Kelly, 302 F.3d 291 (5th Cir. 2002), and Caballes is not necessarily to the contrary, as the driver in that case was no longer in his car at the time of the sniff. It seems to me that the defendant’s argument in such a case is much stronger than Washburn’s, but as always, I’d welcome others’ thoughts.

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Defense Access to Stored Electronic Communications

Thursday, November 12th, 2009

As I mentioned last week, I have a new publication entitled Prosecution and Law Enforcement Access to Information about Electronic Communications. It’s meant to be useful on a range of topics, from phone records and wiretapping, but the most detailed discussion concerns email, text messages, and other stored electronic communications. The very, very simplified version of that section of the paper is that the state can access that type of evidence with a search warrant, and perhaps, in some cases, by other means. In my post announcing the paper, I promised to write about defense access to stored electronic communications, a topic not addressed in the publication. Here I am, making good.

Let’s take a specific example. How, if at all, may a defendant charged with rape access emails that the complainant sent from her Yahoo! email account to a friend, where there is reason to believe that (1) the emails remain on Yahoo!’s servers and (2) the emails may be exculpatory, because they may suggest that the encounter was consensual? (Remember, if the state were seeking the defendant’s incriminating emails to his brother, it could obtain them with a search warrant directed at the defendant’s email service provider, or maybe even with lesser process.)

The short answer is, the defendant can’t access the emails.

Of course, if the complainant still has access to the emails, the defendant can subpoena them from her. But if she doesn’t — for example, if she’s deleted them — or if she isn’t forthcoming with them, the defendant probably can’t obtain the emails from Yahoo!. Under 18 U.S.C. § 2702, most communications service providers, “shall not divulge  . . . the contents of” electronic communications except in specified circumstances. None of the enumerated circumstances apply to the defendant’s situation; there is no general exception for compliance with subpoenas or court orders, which are the types of instruments that the defendant would normally employ in pursuing evidence. By contrast, 18 U.S.C. § 2703 provides for compulsory disclosure to “governmental entit[ies]” with appropriate process.

A number of courts have held that the specific nondisclosure command of the statute trumps instruments like subpoenas and court orders, and simply doesn’t allow criminal defendants (or private civil litigants, for that matter) to access stored email from service providers. Apparently, most email providers are, understandably, following these cases and are refusing to produce stored emails in response to defendants’ subpoenas and court orders. A good collection of cases on point appears in Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009), while a case applying the law to bar a criminal defendant from compelling a service provider to give him his own stored email is United States v. Amawi, 552 F.Supp.2d 679 (N.D. Ohio 2008). A useful law review article discussing this issue is Marc J. Zwilliger & Christian S. Genetski, Criminal Discovery of Internet Communications . . ., 97 J. Crim. Law & Criminology 569 (2007), available online here. (That makes two useful law review articles I’ve seen this year, counting this one.)

There are a couple of possible avenues of recourse for our hypothetical defendant. First, because an email provider can produce stored communications with the consent of the account holder, our defendant could try to convince the complainant to consent. Or, he could try to get a court to order her to consent. (There’s a robust debate in the cases about the propriety of that, which I won’t summarize here, but it may be worth a try.) Next, he could try to persuade the prosecution to obtain the email on his behalf. Finally, he could try to argue that the federal statutes are unconstitutional, perhaps on due process grounds, to the extent that they put a class of evidence completely off-limits to him — especially a class of evidence that the prosecution can access. There might be something to that argument, though there aren’t any reported decisions on point, presumably because, to date, defendants have been able to get by using the other methods suggested above.

I’m keen to hear about real-world experiences with this issue. As always, feel free to post a comment or to contact me off-blog.

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New Publication on Electronic Search and Seizure

Friday, November 6th, 2009

As I’ve mentioned before, I’m especially interested in the law regarding electronic communications and electronic evidence. (For one thing, it allows me to look at web sites like Gizmodo and claim that I’m working.) I’ve previously published a paper on law enforcement use of GPS tracking devices, as well as several blog posts about electronic evidence.

My latest foray into the field is this Administration of Justice Bulletin, entitled Prosecution and Law Enforcement Access to Information about Electronic Communications. It’s a primer about everything from phone records to email to wiretapping, and it’s meant to be useful to prosecutors, officers, defense attorneys, and judges. The law in this area is incredibly complicated, and my sense is that there’s a need for a basic resource. I plan to update the bulletin from time to time, so your feedback would be much appreciated.

I’m also planning to write a blog post about the flip side of the coin: defense access to information about electronic communications. Look for that in the next week or two. Finally, my colleague Kara Millonzi has recently published this paper on electronic discovery in civil cases. It’s of particular relevance to folks involved in quasi-criminal cases, like post-conviction litigation, but it has some nuggets that might be of interest to “regular” criminal lawyers, too.

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Traffic Stops, Part II

Wednesday, October 28th, 2009

I noted yesterday that a law enforcement officer conducting a traffic stop may order the driver and any passengers out of the vehicle. It’s also reasonably clear that the officer can order the vehicle’s occupants to remain in the vehicle. Robert L. Farb, Arrest, Search, and Investigation in North Carolina 30 & n.160 (collecting cases). But can the officer, without any particularized suspicion that the vehicle’s occupants are committing any non-traffic offense, order one or more of the occupants into his police cruiser? It’s an important question, because if the answer is yes, the officer may also be able to frisk the occupants as a precaution. (More on that below.)

Unfortunately, there’s no clear answer to the question. A leading commentator presents the authority to “direct[] the driver to be seated . . . in the patrol car during the stop” as if it were as well-established as the authority to order the driver out of his own vehicle. 4 Wayne R. LaFave, Search and Seizure 387 (4th ed. 2004). But the cases reveal a much more complicated picture. Some, like State v. Lozada, 748 N.E.2d 520 (Ohio 2001), do indeed endorse the practice, though the Lozada court held that “if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer,” the driver may not be frisked.

Other cases, though, reach a contrary conclusion. See, e.g., State v. Berrios, 235 S.W.3d 99 (Tenn. 2007) (holding that an officer may not, as a routine matter, order a driver into a patrol car during a traffic stop, though acknowledging that unusual circumstances might justify such an intrusion). Of particular note in this connection is Bennett v. City of Eastpointe, 410 F.3d 810 (6th Cir. 2005), which observed that there is a split of authority on this issue, but held that officers do not have “carte blanche authority to throw any motorist pulled over for a traffic violation into the back of a squad car while they check the motorist’s license and registration.” Instead, the court held, being ordered into a patrol car is a more serious intrusion that can be justified only if unusual circumstances are present, such as erratic or threatening behavior by the driver.

Perhaps the United States Supreme Court will grant certiorari and review a case raising this issue, or perhaps one of the North Carolina appellate courts will address it. Until then, my advice to officers is as follows:

  • Don’t order traffic stop subjects into your vehicle as a routine practice.
  • If there is a specific reason that you need to do so during a particular stop, such as a need to protect a subject from inclement weather, or a need to control a subject who is behaving in a threatening manner, go ahead, but document your reasons.
  • If you have a choice between ordering a driver or a passenger into your vehicle, choose the driver. After all, it is the driver who committed the traffic violation that resulted in the stop.
  • You can’t automatically frisk a person just because you have ordered the person into your vehicle. For example, if you order a driver into your vehicle because of inclement weather, you may not have a justification to frisk the driver. If, however, the person is behaving in a threatening manner or if there are other indicators of danger, you may frisk the person for weapons.

Anyone have a different view of this issue? I’d be especially interested to hear from officers about how they handle this issue and why they do what they do. As always, if you’re willing to share your practice but don’t want to post a comment, you can email me and ask me to share your feedback without attribution.

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Traffic Stops

Tuesday, October 27th, 2009

As one eminent Fourth Amendment scholar has observed, “[i]n recent years more Fourth Amendment battles have been fought about police activities incident to . . . what the courts call a ‘routine traffic stop’ than in any other context.” 4 Wayne R. LaFave, Search and Seizure § 9.3 (4th ed. 2004). Because so many criminal cases arise out of traffic stops, and because the law in this area is evolving fairly quickly, I was asked to teach a short session on traffic stops at the recent conference of superior court judges.

I learned a lot while preparing for the session, and I created a short handout, in the form of a scenario, that summarizes the law on some of the common-yet-difficult issues that arise in connection with traffic stops. For example, when can an officer ask about matters unrelated to the purpose of the stop? When can an officer frisk the occupants of the vehicle? When can an officer have a drug dog sniff the exterior of the vehicle?

Since the answers to some of these questions are unclear, while the answers to others were surprising to me, I thought I’d share the handout, which may be of interest not just to judges and lawyers, but to officers and others as well. To whet your appetite, the beginning of the handout is cut and pasted below. The full handout is available here.

[Beginning of handout]

Officer Ollie Ogletree is on patrol one Saturday night at about 10:00 p.m. He’s driving along a major commercial road in a lower-middle-class section of town when he sees a 2002 Chevrolet Malibu with three occupants turn without signaling, causing a following car to brake suddenly. Although an accident does not result, Officer Ogletree activates his blue lights and pulls the Malibu over for unsafe movement in violation of G.S. 20-154. The Malibu pulls over promptly. The driver is a male in his late 20s. The front-seat passenger is a female of the same age. The rear-seat passenger is a teenage female.

  1. Officer Ogletree orders all of the occupants out of the vehicle. OK?

Yes. In the interest of officer safety, an officer may order any or all of a vehicle’s occupants out of the vehicle during a traffic stop. Pennsylvania v. Mimms, 434 U.S. 106 (1977) (driver); Maryland v. Wilson, 519 U.S. 408 (1997) (passengers).

The occupants comply with Officer Ogletree’s order to exit the vehicle. Although they are compliant, he is concerned for his safety. A fellow officer was shot the week before during a traffic stop, it is nighttime, and the vehicle has multiple occupants. Officer Ogletree decides to frisk the two adults. OK?

[Read the handout to find out.]

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Sealing Warrants

Wednesday, October 14th, 2009

by School of Government faculty member Michael Crowell

In the last couple of years North Carolina has seen several high profile cases in which the sealing of a search warrant became an issue.  One was the investigation of the murder of Nancy Cooper in Cary, and it led to last week’s North Carolina Court of Appeals’ decision, In Re: Search Warrants Issued In Connection With The Investigation Into The Death Of Nancy Cooper, No. COA08-1280 (Oct. 6, 2009), the first state appellate decision to offer guidance on sealing warrants.

Nancy Cooper disappeared in mid-July 2008, then her body was found several days later, strangled to death.  As the investigation focused quickly on her husband, Brad, several search warrants were issued for the home, his car, and his office and computers.  The police and prosecutor asked to seal the search warrants plus the applications and inventories, to protect an ongoing investigation. The motions were granted ex parte, for thirty days each, and later extended over the objection of Capitol Broadcasting and the News and Observer.   Within a couple of months all were unsealed, and Bradley Cooper was charged with murdering his wife.  The Court of Appeals upheld the sealing.

The Court of Appeals started with the statute, G.S. 132-1.4(k), which says that search warrants which have been returned are public records and “may be withheld only when sealed by court order. . . .”  That’s it.  There is nothing to tell a trial judge when a warrant may be sealed and when not, and there is nothing about the procedure to be followed.

The Cooper decision filled out the process for sealing this way:  (1)  Warrants may be sealed when the sealing is “essential to preserve higher values and is narrowly tailored to serve that interest”; (2) the trial court must state on the record its reasons for sealing; (3) the judge must consider less restrictive alternatives before sealing; (4) the trial court can adopt and rely upon the facts presented by the government to justify sealing, when the evidence is creditable; and (5) the trial court’s findings must be sufficiently specific to allow meaningful appellate review.

In reaching that result the Court of Appeals panel rejected the argument that there is a First Amendment right of public access to warrants and related documents (because historically the issuance of warrants has not been open to the press and public) and also rejected the idea of a common law qualified right of access to judicial records (on the ground that North Carolina’s public records law had supplanted any common law right). The court did find, however, a state constitutional right of access to judicial records in Article I, § 18’s provision that “All courts shall be open . . .” - and it read that state constitutional right to be essentially the same as the common law right of access described by the Fourth Circuit in Baltimore Sun Company v. Goetz, 886 F.2d 60 (4th Cir. 1989).

The key component of the Cooper “All courts shall be open” right, just like in Baltimore Sun, is that restricting access is allowed only when it is “essential to preserve higher values and is narrowly tailored to serve that interest.”  The values served by sealing the Cooper warrants were protecting the defendant’s right to a fair trial, maintaining the integrity of the investigation, and guarding the state’s right to prosecute the defendant.  (Another potential reason for sealing a warrant might be to protect innocent third parties.  See New York Times Company v. Biaggi, 828 F.2d 110 (2nd Cir. 1987), cert. denied, 485 U.S. 977 (1988).)

The “narrowly tailored” prong of the Cooper/Baltimore Sun analysis means that before sealing a warrant the trial court must consider less restrictive alternatives such as disclosing some documents but not others, or redacting documents.  In Cooper the Court of Appeals said such alternatives were impractical; its reasoning was that because all warrants focused on Brad Cooper no portion could be revealed without jeopardizing the investigation.  Thus, limiting the sealing to thirty days was the least restrictive means of protecting the “higher values” of protecting the right to a fair trial and guarding the integrity of the investigation.

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Computer Searches and Plain View

Monday, September 21st, 2009

Computers and electronic storage media can hold massive quantities of data. At approximately 30,000 pages per gigabyte, a low-end laptop computer with a 250 gigabyte hard drive can store the equivalent of more than 7 million pages of paper. That’s thousands of bankers’ boxes worth, or as many pages as you’d find at a branch library with 30,000 books.

When a law enforcement officer searches a computer, whether under a search warrant or a warrant exception, the officer typically searches the entire computer. At one level, this makes perfect sense, because although the officer may be looking for, say, evidence of tax evasion, the officer can’t trust file names and file extensions: critical evidence of unreported income won’t necessarily be saved under the name “secrettransaction.doc.” It might be instead be stored under the name “cookierecipe.doc” or “familyphoto.jpg.”

At another level, though, this means that computer searches can be incredibly extensive, in a way that arguably runs afoul of the Fourth Amendment’s particularity requirement, or at least risks rendering the Fourth Amendment impotent when it comes to protecting privacy. This is especially so because, when the officer finds child pornography on the computer — in addition to or instead of evidence of tax evasion — the prosecution is likely to argue that the images were in “plain view” and therefore admissible.

As Chief Judge Alex Kozinski of the Ninth Circuit put it recently, “[t]he pressing need of law enforcement for broad authorization to examine electronic records . . . creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.” United States v. Comprehensive Drug Testing, Inc., __ F.3d __, 2009 WL 2605378 (9th Cir. Aug. 26, 2009) (en banc).

Courts don’t agree on how serious this problem is. Some see it as a critical concern, others believe that computer searches are not dramatically more extensive or intrusive than, for example, a search of the paper records maintained by a large business. Further, courts and commentators who belive that this is a serious issue don’t agree on how to address it. Some suggest limiting the plain view doctrine in the context of computer searches; others suggest requiring officers to use a computer search protocol designed to find only evidence of the type for which the search is authorized. The most detailed treatment of the issue is in Comprehensive Drug Testing, a BNA summary and analysis of which is available here. The nutshell version is that the Ninth Circuit now requires (1) the government to waive the plain view doctrine as a condition of obtaining a computer search warranty, (2) the government to use a “search protocol . . . designed to uncover only the information for which it has probable cause,” and (3) the government to conduct computer searches using “specialized personnel or an independent third party,” not the case agents.)

Before you say, oh, that’s just the nutty Ninth Circuit, remember that Chief Judge Kozinski is a Reagan appointee and one of the most influential conservatives on the federal bench. Still, the opinion puts the Ninth Circuit alone in uncharted territory — whether it is leading the way or simply getting lost remains to be seen. North Carolina’s appellate courts haven’t weighed in on this issue yet, but I’d appreciate it if readers would weigh in — for example, by posting comments.

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Officers Doing Blood Draws?

Thursday, September 17th, 2009

by School of Government faculty member Shea Denning

The Associated Press just published this story about a federal program in Idaho and Texas in which officers are trained to draw blood from people suspected of impaired driving. The notion is that blood draws counter the evidence lost as a result of breath test refusals, thereby resulting in fewer trials, more convictions and greater deterrence. And blood draws by officers save time and, perhaps, money, though there are costs for training officers in the art of the needle-stick. Arizona apparently set the trend in 1995 by cross-training some of its officers as phlebotomists, a practice that, according to this report from the National Highway Transportation Safety Administration (NHTSA), caused defense attorneys to change their advice from “just say no” to “blow, baby, blow.” (My words, not theirs.) The report noted “[a] possible concern with having an officer draw the blood is that suspects could feel coerced if an authority figure such as an officer is obtaining the sample.” But given that such suspects presumably are forced to submit to a blood draw, is coercion really an issue?

The NHTSA report included 2005 refusal rates for 37 states, Puerto Rico and the District of Columbia.  North Carolina’s rate of 20 percent was slightly below the average rate of 22 percent. Which state had the highest rate?  Here’s a hint:  Live Free or Die.  New Hampshire drivers refused breath tests at a breathtaking rate of 81 percent.

The AP reports that if the Idaho and Texas programs are successful, the NHTSA will encourage police nationwide to undergo similar training, which caused me to wonder whether this practice could be adopted in North Carolina under the state’s current implied consent laws.  The upshot:  Yes.

Law enforcement officers already may request, in their discretion, that a driver submit to a blood test “in addition to or in lieu of” a breath test.  G.S. 20-139.1(b5). And, under current law, when a blood test is requested by an officer, “a physician, registered nurse, emergency medical technician, or other qualified person” must withdraw the blood sample unless it reasonably appears that the procedure cannot be performed without endangering the safety of the person collecting the sample or the safety of the person from whom the sample is being collected. G.S. 20-139.1(c).  Law enforcement officers can obtain suspects’ blood without a warrant if they believe that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine.  See G.S. 20-139.1(d1).  Moreover, G.S. 20-16.2(c) allows testing for drugs and alcohol in an implied consent case so long as the testing is lawfully carried out, regardless of whether it comports with the implied consent procedures.

A statutory amendment might be useful to clarify that police officers with proper training are “qualified person[s]” as that term is used in G.S. 20-139.1(c), but, otherwise, the practice appears to comport with the current system for obtaining blood samples from suspected impaired drivers.

So a needle-wielding cop — or a gun-toting phlebotomist — may be coming soon to a town near you.

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The Court of Appeals Weighs in on Vehicle Searches after Gant

Wednesday, September 16th, 2009

The court of appeals released a batch of opinions yesterday. Several are interesting and important, and there were an unusually large number of opinions in favor of defendants, including some in very serious cases. One of those is State v. Carter, the court’s first stab at applying Arizona v. Gant — a case about which I’ve blogged here and elsewhere. Recall that the basic holding of Gant is that when police arrest an occupant of a motor vehicle, they can only search the passenger compartment of the vehicle incident to the arrest if (1) the arrestee is unsecured and within reaching distance of the vehicle, or (2) there is reason to believe that evidence of the crime of arrest will be found in the vehicle.

The defendant in Carter was stopped by an officer who suspected that Carter’s temporary tags were expired. It turned out that they were, and that the address on the tags and the address on Carter’s license didn’t match. For a couple of reasons, including that Carter seemed nervous, the officer decided to arrest him for the tag violation and for failing to notify the DMV of his new address. The officer then searched Carter’s vehicle incident to the arrest, and noticed that some papers that had been sitting on the front passenger seat when he first pulled Carter over had been torn into pieces in the interim. The officer seized the papers, which included credit card documents not in Carter’s name. The discovery of the papers set off an investigation that resulted in Carter pleading guilty to accessory after the fact to murder, financial identity fraud, and being a habitual felon.

Before the plea, though, Carter had moved to suppress the papers as the result of an illegal search. When his motion was denied, he pled guilty, but he reserved his right to appeal the suppression issue. The first time it heard the case — before Gant — the court of appeals affirmed, based on Belton v. New York, 453 U.S. 454 (1981), and cases under it, which allowed a search of the passenger compartment upon the arrest of any recent occupant of a vehicle. After Gant was decided, Carter petitioned the United States Supreme Court for a writ of certiorari. The Court granted the writ, vacated the opinion of the court of appeals, and remanded for further proceedings in light of Gant. The court of appeals issued its new opinion yesterday, vacating Carter’s conviction, reversing the trial court’s ruling on the motion to suppress and remanding the case. (I’m guessing that a pitched battle will ensue about which of the evidence against Carter was the fruit of the stop, and which has an independent source.)

Most of the court’s opinion is straightforward: Carter was handcuffed and sitting on a curb at the time of the search, so it wasn’t likely that he could reach into the vehicle. And he was “arrested for the traffic offenses of driving with an expired registration tag and failing to notify the [DMV] of a change of address. . . . [I]t would be unreasonable to presume that papers seen on the passenger seat of the car were related to an expired registration or a failure to report a change of address to the Department of Motor Vehicles.” Thus, the court concluded, the search could not be justified under either of the two prongs of Gant. (As an aside, while the first part of the court’s holding is unassailable, the second part seems less certain: isn’t is possible that evidence of Carter’s address — such as a bill or a letter — would be found in the vehicle, especially given that the officer had already seen papers sitting on the passenger seat?)

Perhaps more important than the court’s holding on the search is the court’s disposition of the matter. Upon finding that the search was unjustified, the court simply reversed the trial court’s ruling on the motion to suppress, without engaging in an analysis of whether suppression would serve the purposes of the exclusionary rule. I posted about this issue here, wondering whether courts might decline to suppress evidence seized during vehicle searches conducted incident to arrest before Gant and in good faith under the then-settled law allowing such searches. At least one federal circuit court has recently held the exclusionary rule inapplicable to such cases. United States v. McCane, 573 F.3d 1037 (10th Cir. 2009). [Update: There's at least one federal circuit court case on the other side, too. United States v. Gonzalez, __ F.3d __, 2009 WL 2581738 (9th Cir. Aug. 24, 2009).] I don’t know whether the state didn’t raise the issue in Carter, or whether the court silently rejected the state’s argument. Either way, the result is that one of the big questions about Gant remains unanswered.

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North Carolina Supreme Court on Searching Cell Phones

Thursday, September 10th, 2009

I’m still not done with the last round of court of appeals and North Carolina Supreme Court opinions, but I found a little gem in one of the high court’s opinions. For the first time, the state supreme court has addressed the search of a cell phone incident to arrest.

I’ve blogged about this issue before, specifically addressing a Fourth Circuit case that considered the question in some detail. And I’m maintaining an informal list of cases on point from other jurisdictions, one version of which is available here. (Most, but not all, of those cases have upheld such searches.)

State v. Wilkerson was a capital case. The defendant was a drug dealer, and he and some accomplices shot and killed two drug users in a dispute over $30 worth of drugs. After the defendant was arrested, an officer confiscated his cell phone and searched it. The phone’s serial number helped connect the defendant to the murders. The defendant later moved to suppress, arguing that there was no basis for the officer’s seizure of the phone, but the trial court found that the phone was properly seized and searched incident to arrest. (It also found that the defendant consented, but the reviewing court didn’t address that ruling.) The supreme court affirmed, holding simply that “the seizure and the search of the telephone were properly accomplished pursuant to a lawful arrest.”

There are a number of tricky issues regarding cell phone searches that didn’t come up in this case. For example, while police may need to search a phone’s call log quickly, before new calls “crowd out” records of other calls, no similar argument supports the need to search a phone’s address book. Likewise, the court didn’t address whether Arizona v. Gant bears on cell phone searches — in other words, whether it limits officers’ ability to search phones that have been secured and removed from the suspect’s reach. But at least our appellate courts’ toes are in the water of cell phone searches. More cases, surely, to follow.

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