Posts Tagged ‘fourth amendment’

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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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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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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Do Officers Need More than a Warrant to Search a Computer?

Tuesday, August 4th, 2009

The Ninth Circuit recently decided United States v. Payton, a computer search case that quietly adopts some pretty radical ideas. Based on the lack of comments on my previous computer search posts — here and here –most of you aren’t keenly interested in the application of the Fourth Amendment to emerging technologies, but Payton strikes me as important enough that a mere lack of interest isn’t going to stop me from writing about it!

Payton began as a drug case. Officers received a complaint about possible drug activity at a residence, and they applied for a search warrant. Although the application requested authorization to search any computers at the residence, the warrant as issued did not specifically mention computers. It did, however, authorize the officers to search for and seize, among other things, “[s]ales ledgers showing narcotics transactions” and “[f]inancial records of the person(s) in control of the residence.”

The officers didn’t find any evidence of drug activity during the search, but they did find a computer. They opened some of the files on the computer and found child pornography, which resulted in federal criminal charges against the defendant. The defendant moved to suppress, arguing that the search exceeded the scope of the warrant. The government argued that sales ledgers and financial records could have been stored on the computer, and that the computer was therefore subject to search, like any other container capable of holding the object of a search warrant.

The district court denied the motion to suppress and the defendant entered a conditional guilty plea, reserving the right to appeal the denial. The Ninth Circuit unanimously reversed, finding that the search of the computer exceeded the scope of the warrant and violated the Fourth Amendment. (For those interested in the apparent politics of the panel, it consisted of a senior-status Carter appointee [Canby, the author of the opinion], a Clinton appointee [Wardlaw], and a senior-status Reagan appointee, a district judge from Illinois sitting by designation [Mills].)

The court started by observing that “computers are capable of storing immense amounts of data,” much of which is private. It argued that searches of computers are therefore more intrusive than searches of most other containers, and stated that “[s]uch considerations commonly support the need specifically to authorize the search of computers in a search warrant.” It cited no authority for the latter statement, which a number of courts have rejected (as discussed in this manuscript I recently prepared for the superior court judges’ annual conference).

The court implicitly acknowledged that sales ledgers and financial records could be kept on a computer, but it held that absent “legitimating facts” suggesting that evidence was likely to be found on the computer, searching the computer was unreasonable under the Fourth Amendment. It contrasted the case to United States v. Giberson, where officers properly searched a computer after finding a sheet of bogus ID cards laying on an attached printer.

Payton may be an example of the maxim that hard cases make bad law. The court seems to have been reacting to the officers’ decision to search the computer despite having found no evidence of drug activity in the house — a decision that it seems to have viewed, understandably, as a fishing expedition. But to the extent that the court’s holding requires more than a warrant — a warrant plus “legitimating facts” — to search a computer that may contain items listed in a search warrant, it is difficult to reconcile with settled Fourth Amendment precedent regarding closed containers. I’m not aware of any other courts that have created different rules for computers. Perhaps an alternative justification for the court’s disposition of the case would have been to conclude that probable cause had disappeared by the time the search of the computer took place, based on the lack of other evidence of drug activity at the home. Cf. United States v. Grubbs, 547 U.S. 90, 95 n. 2 (2006) (recognizing that “probable cause may cease to exist after a warrant is issued”).

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Computer Searches and the Scope of Consent

Wednesday, May 13th, 2009

Most readers of this blog know (1) that a search done pursuant to consent doesn’t violate the Fourth Amendment, but (2) that the scope of search is limited by the terms of the consent.  Thus, if Ollie Officer asks Sam Suspect whether he can search Sam’s house for the body of Vickie Victim, and Sam says, “OK, but you can’t look in the basement,” then Ollie can’t look in the basement, unless he has some other basis, besides consent, to do so.  Furthermore, Ollie can’t look in, say, a shoebox in Sam’s closet, beacuse Sam only agreed to let Ollie look for Vickie’s body, and Vickie’s body couldn’t reasonably be in a shoebox.

The scope of a person’s consent is determined under an objective test: “[w]hat would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 250 (1991). Sometimes that’s an easy question, and sometimes it isn’t. An example of the latter is State v. Stone, 362 N.C. 50 (2007), in which a divided North Carolina Supreme Court held that a drug suspect’s general consent to a search of his person didn’t allow officers to look inside his underwear.

Difficult questions about the scope of consent arise particularly often in connection with computer searches.  For example, in State v. Prinzing, __ N.E. 2d. __, 2009 WL 1099774 (Ill. Ct. App. Apr. 21, 2009), officers went to the home of a person they suspected of possessing child pornography. The officers told the suspect that they believed that he may have been the victim of fraudulent credit card charges — the record is mixed as to the truth of the officers’ statements — and asked to search his computer for evidence of the fraud, including computer viruses. The suspect agreed, and the officers then searched the computer, finding images of child pornography. The defendant moved to suppress, arguing that he gave the officers consent to search for viruses and evidence of credit card fraud, and that his consent did not include consent to look at image files, which would not be likely to contain the things for which the officers said they wanted to look.  Although the trial court denied his motion, the appellate court reversed, finding that the officers exceeded the scope of the defendant’s consent.

By comparison, in United States v. Luken, 560 F.3d 741 (8th Cir. 2009), officers likewise went to the home of a person they suspected of possessing child pornography and asked for consent to search his computer. He agreed in writing, authorizing the officers to “seize and view” his computer. The officers seized the computer, and one of them later examined its contents using special forensic software, finding child pornography. After he was charged with child pornography-related offenses, the defendant moved to suppress, arguing that the comprehensive forensic examination conducted by the officer went beyond “view[ing]” the computer.  Neither the trial court nor the appellate court agreed, in part because the officers told the defendant that they had access to forensic tools that allowed them to recover deleted files, etc. Defendant’s consent was thus in the context of a conversation that suggested a thorough examination of the computer.

The North Carolina appellate courts have decided surprisingly few cases involving contested computer searches, and none, as far as I can tell, involving scope-of-consent issues. I imagine that we’ll see more and more cases involving these issues. A fact pattern I expect to see is: (1) an officer obtains consent to search a suspect’s computer for evidence of, say, financial crimes; (2) the officer looks at JPEG files (a particular type of image file) and finds child pornography; and (3) the suspect (now defendant) argues that the officer exceeded the scope of consent by looking at JPEG files. Whether the defendant is correct depends on whether evidence of financial crimes could reasonably be found in JPEG files, and that isn’t an easy question.  A tax return, for example, could be stored as a JPEG file, though it would more likely be stored as a PDF file. The preparation of the lawyers, officers, and (perhaps) expert witnesses involved will make the difference in how a case like this turns out.

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Arizona v. Gant and Searches Incident to Arrest

Wednesday, April 22nd, 2009

The Supreme Court decided Arizona v. Gant yesterday. The opinion is available here, and a news article about the case is here. It’s a pretty significant Fourth Amendment case, so let’s unpack it a little bit, and please excuse the long post.

When an officer lawfully arrests a suspect, the officer may search the suspect incident to the arrest. Such a search is justified (1) to protect the officer from any weapon that might be accessible to the suspect, and (2) to prevent the suspect from destroying evidence. See Chimel v. California, 395 U.S. 752 (1969). In New York v. Belton, 453 U.S. 454 (1981), the Court held that when an officer arrests the occupant of a motor vehicle, the officer may search the entire passenger compartment of the vehicle, including any containers therein, incident to the arrest, so long as the search is reasonably contemporaneous with the arrest. In Thornton v. United States, 541 U.S. 615 (2004), the Court extended the Belton rule to allow the search of the entire passenger compartment of a vehicle upon the arrest of a person who exited the vehicle shortly before being arrested. Gant dramatically limits, or perhaps substantially overrules, Belton and Thornton.

The basic facts of Gant – with some simplification — are as follows. The police received reports of drug activity at a particular residence. They went to investigate, knocked on the door, and Mr. Gant answered. He identified himself and indicated that the owner of the premises was not there, but would be back later. The police left, ran Mr. Gant’s record, and found an outstanding warrant for driving with a suspended license. They went back to the residence that night and staked it out. They saw Mr. Gant drive up, park, and exit his vehicle. The officers then called out to him, and Mr. Gant approached the officers, meeting them about 10 feet from his car. They arrested him, handcuffed him, and put him in the back of a cruiser. Then they searched his car, finding a bag of cocaine.

Mr. Gant was charged with drug offenses, and he moved to suppress the cocaine, arguing that because he was in the officers’ custody, there was no real risk that he would access a weapon in his car or that he would destroy any evidence therein. The state courts ultimately agreed, and the Supreme Court granted certiorari in light of (1) the lower courts’ disagreement about the proper interpretation of Belton, and specifically how long after an arrest a vehicle search could take place and still be “contemporaneous” with the arrest, and (2) the “chorus” of voices, including some courts and many commentators, asking that Belton be reconsidered.

The result was a 5-4 decision for Mr. Gant. The case made strange bedfellows, with Justices Scalia and Thomas joining Justices Ginsburg and Souter in endorsing Justice Stevens’s majority opinion, and Justice Breyer aligning with the Chief Justice and Justices Alito and Kennedy in dissent. The majority emphasized the two reasons given in Chimel for allowing searches incident to arrest — officer safety and the destruction of evidence — and concluded that vehicle searches incident to arrest should be permitted only when they further those reasons. Thus, the majority held that under the rationale of Chimel, an officer may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only when the arrestee is “unsecured and within reaching distance of the passenger compartment at the time of the search.” However, the majority added that, although not required by Chimel, an officer is also allowed to search an arrestee’s vehicle when it is “reasonable to believe” that evidence of the crime of arrest may be found in the vehicle. (Of course, the vehicle may also be searched if there is probable cause to believe that evidence of any crime may be found in the vehicle, under the automobile exception to the warrant requirement.) Because Mr. Gant was neither unsecured nor within reaching distance of his vehicle at the time of the search, and because the majority believed that it was unlikely that evidence of driving with a suspended license would be found in the vehicle, the majority held that the search was invalid. The dissent, meanwhile, argued that the majority holding was unworkable and contrary to stare decisis.

I’m sure there are lots of issues that I’m missing, but here are a few preliminary thoughts about this case. First, although the majority denies that it is overruling Belton, it admits in footnote 4 that it will be very rare for an arrestee to be unsecured and within reach of his vehicle while the arresting officer is searching it. Thus, it essentially limits Belton to its unusual facts (an officer with one set of handcuffs and no backup arrested several suspects during a roadside stop), and spells the end of routine vehicle searches incident to arrest. Second, as Justice Scalia pointed out in his reluctant concurrence, it creates an incentive for officers to “game the system” by either (1) leaving arrestees unsecured in order to justify a search, or (2) delaying arrest altogether and doing a Terry frisk of the vehicle under Michigan v. Long, 463 U.S. 1032 (1983), though it is reasonable to wonder whether the bright line rule announced in Long will survive. Third, it will create a frustrating result in some pending cases — searches conducted by officers in compliance with the accepted understanding of Belton will be invalidated despite having been proper under the law in effect at the time of the search. Although the majority states in footnote 11 that qualified immunity will shield officers from civil liability for such searches, it still means that evidence will be suppressed despite the officers’ faultless behavior, likely including evidence that the officers could have obtained via search warrant had it been clear at the time that a warrant was necessary. Fourth, the preceding effect will be somewhat mitigated by the second prong of Gant, the one that holds that officers may search a vehicle incident to arrest if there is reason to believe that the vehicle contains evidence of the crime of arrest. This part of the holding is a bit of an oddity. As the dissent notes, the majority endorsed it with very little explanation, explanation that would have been welcome given that “reason to believe” isn’t a standard that is used in the Fourth Amendment context. Whatever that standard means, it must be less than probable cause or else it would add nothing to the authority that officers already have under the vehicle exception to the warrant requirement. Fifth, although the dissent doesn’t dispute the majority’s conclusion that the facts of Gant fall outside the second prong of the majority’s holding, I’m not sure I agree. If Mr. Gant’s wallet and cell phone were on the driver’s seat, and no one else’s personal property were in the car, wouldn’t that be evidence relevant to the driving charge, because it would tend to show that Mr. Gant had been driving the car? Sure, the state had a slam dunk without such evidence, but that’s not the test of relevancy. It will be interesting to see how expansively lower courts read Gant’s second prong.

As always, I welcome your thoughts, comments, questions, and concerns. I’m sure that this post won’t be the last word on Gant, or maybe even my last post on Gant, so please help to frame the discussion.

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Searching Probationers

Wednesday, February 11th, 2009

The News and Observer ran a story today about a piece of proposed legislation that would allow any law enforcement officer to search any probationer, for any reason, at any time.  The story is here, and the proposed legislation itself is available here.  In essence, it would remove G.S. 15A-1343(b1)(7), which gives judges the option of imposing, as a special condition of probation, a requirement that the probationer submit to warrantless searches by a probation officer “for purposes . . . reasonably related to [the probationer's] probation,” and it would add a new standard condition of probation that would require all probationers to submit to warrantless searches by any law enforcement officer, without any limit as to the purpose of the searches.  A professor quoted in the newspaper article questioned the constitutionality of the proposal, which got me thinking that this would be a good time to review the law regarding searches of probationers.

There are two Supreme Court cases in this area.  Griffin v. Wisconsin, 483 U.S. 868 (1987), upheld the constitutionality of a Wisconsin regulation that permitted probation officers to search probationers’ homes for supervisory purposes without a warrant and based only on reasonable suspicion.  In the Court’s view, requiring a warrant would be too cumbersome and would undermine probation officers’ ability, and “special need,” to supervise offenders.  United States v. Knights, 534 U.S. 112 (2001), upheld a warrantless search of a probationer’s residence that was supported only by reasonable suspicion, even though the search was conducted for investigative, rather than supervisory, purposes.  The Court held that probationers have a reduced expectation of privacy, and that society has an unusually strong interest in searching probationers; together, it said, these two factors permit probationers to be searched based only on reasonable suspicion and without a warrant, even for investigative purposes.

Because current G.S. 15A-1343(b1)(7) allows searches only by probation officers and only for supervisory purposes, it is somewhat similar to the regulation at issue in Griffin, and its constitutionality hasn’t been challenged much.  The main difference is that the Wisconsin regulation required reasonable suspicion, while our statute appears to allow totally suspicionless searches.  In United States v. Midgette, 478 F.3d 616 (4th Cir. 2007), the Fourth Circuit held that this difference was immaterial, because the “special needs” rationale articulated in Griffin allows completely suspicionless searches.  To my surprise, this issue doesn’t seem to have been decided by our appellate courts.  It might draw renewed attention if the proposed legislation passes, because the legislation allows people who aren’t probation officers, and so arguably don’t have a “special needs” basis for searching probationers, to do so without reasonable suspicion.  The Court in Knights explicitly declined to rule on whether suspicionless investigative searches of probationers violate the Fourth Amendment, so it is an open question.

The Court in Knights also declined to address whether a probationer, by agreeing to the probation contract, has effectively waived his Fourth Amendment rights to the extent described in the probation conditions.  It was able to resolve the case without reaching that issue, and it is a thorny one.  Certainly such rights are waivable, and if the proposed legislation passes, one can easily imagine the state relying on a waiver theory to defend it.  But there’s a serious question about whether a waiver as part of a probation contract is voluntary under the circumstances; a leading commentator thinks not, though most courts to consider it have so far said that it is.  See generally Wayne R. LaFave, Search and Seizure s. 10.10(b).

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Herring, Again

Monday, February 2nd, 2009

Several days ago, I wrote a post about Herring v. United States and whether it is merely the first step in a significant narrowing of the exclusionary rule. It’s an important issue — so important, in fact, that the New York Times ran a story on it Friday. The story is an interesting read, tracing Chief Justice Roberts’s doubts about the exclusionary rule back to his days in the Reagan Justice Department. Here’s the link:

http://www.nytimes.com/2009/01/31/washington/31scotus.html?_r=1&hp

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Searching Cell Phones Incident to Arrest

Thursday, January 29th, 2009

Nearly 90% of American adults have cell phones. When one of those cell phone users is arrested, may police search their mobile phone incident to arrest? The Fourth Circuit recently answered that question in the affimative. See United States v. Murphy, __ F.3d __, 2009 WL 94268 (4th Cir. Jan. 15, 2009). The defendant in Murphy was a passenger in a car that was stopped for speeding. He gave a false name to the police, they figured it out, and he was arrested for obstruction of justice. Counterfeit currency and drug-related items were found in the car. The police searched Murphy’s cell phone incident to arrest, and obtained phone numbers they later used to develop additional evidence against Murphy. Murphy was charged with drug and currency offenses, and moved to suppress, arguing that the police should have obtained a warrant to search the phone. Neither the district court nor the court of appeals agreed.

The Fourth Circuit said that the “manifest” need to preserve evidence justified police in retrieving “text messages and other information from cell phones and pagers seized incident to an arrest.” There’s some logic here: over time, new messages and calls will “crowd out” earlier ones from the phone’s memory, effectively destroying potentially relevant evidence. Murphy agreed that when a phone has a small storage capacity, the need to preserve evidence justifies a warrantless inspection of a cell phone, but he contended that when a phone has a large storage capacity, the risk of losing critical evidence is reduced, and the privacy interest of the phone’s owner is increased, so a warrant should be required. The court rejected this argument as unworkable — what would count as a “small” or “large” capacity, and how would an officer know the capacity of a phone before searching it?

Appellate courts are struggling to apply Fourth Amendment rules to new technologies, and decisions like Murphy often raise as many questions as they provide answers. For example, could the police search the “address book” of Murhpy’s phone incident to arrest, even though it is not subject to crowding out? What if Murhphy had been carrying a Blackberry? A laptop? Could those be searched incident to arrest? What if the police can obtain all call information and text messages from the service provider, removing the crowding out/exigency justification? I’m keenly interested in this area of the law, and welcome feedback and comments about what officers are doing in the field and how courts are responding.

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Herring v. United States and the Future of the Exclusionary Rule

Monday, January 26th, 2009

Earlier this month, the United States Supreme Court decided Herring v. United States, no. 07-513, a case that raises interesting questions about the future of the exclusionary rule.  An officer learned that the eventual defendant, Herring, was at the impound lot, retrieving items from his impounded truck.  The officer was apparently familiar with Herring, and called the county’s warrant clerk to see if Herring had any outstanding warrants.  He didn’t.  The officer then asked the clerk to check with the warrant clerk in the next county over.  That clerk said that Herring did have a warrant outstanding.  Based on that information, the officer pulled over Herring’s vehicle, arrested him, and found drugs on his person and a gun in his vehicle.  However, shortly after arrest, the warrant clerk in the neighboring county realized that the warrant against Herring had been recalled.  Herring was charged with federal drug and firearm offenses, and he moved to suppress, arguing that he had been arrested in violation of the Fourth Amendment because there was no valid warrant, nor any other basis for the arrest.

The government did not argue that the arrest was legal, but contended that the exclusionary rule should not apply because the officer acted in good faith and applying the exclusionary rule under these circumstances would be unlikely to deter the conduct that led to the arrest, i.e., the negligent record-keeping by the neighboring county.  The lower courts agreed, and the Supreme Court affirmed 5-4, with the majority opinion written by Chief Justice Roberts.  The Court suggested that the arrest itself was legal, based on the officer’s probable cause to believe that there was a warrant.  However, because the government did not make that argument, the Court assumed that the arrest violated the Fourth Amendment and asked whether that required suppression.  It held that “suppression is not an automatic consequence of a Fourth Amendment violation.  Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.  Here the error was isolated negligence attenuated from the arrest.  We hold that in these circumstances the jury should not be barred from considering all the evidence.”

Given the North Carolina appellate courts’ refusal, as a matter of state constitutional law, to adopt the Leon good faith exception to the exclusionary rule, see State v. Carter, 322 N.C. 709 (1988), it is doubtful that Herring will have an immediate impact here.  However, it may prompt reconsideration of Carter, and so it is at least worth considering whether it is a harbinger of additional future limitations on the exclusionary rule.  On its face, it is a narrow decision, applying only to negligent conduct that is (1) isolated and (2) attenuated from the arrest.  But perhaps the justices in the majority would go further if the opportunity presented itself, and would hold that the exclusionary rule should apply only when police violate the Fourth Amendment on purpose.  At least one School of Government faculty member reads the tea leaves that way, though others believe that the majority would distinguish a case where, for example, the arresting officer negligently misread a computer warrant check and arrested a suspect who, in fact, had no outstanding warrants.  As always, we welcome your thoughts and invite your comments.

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