Posts Tagged ‘Search and Seizure’

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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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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Pedophilia and Probable Cause

Friday, June 12th, 2009

I’m getting ready to teach a session at the Superior Court Judges’ Conference about searches of computers and other electronic devices, so I’ve been reading all the computer search cases I can get my hands on. Recently, I stumbled on United States v. Crespo-Rios, __ F. Supp. 2d __, 2009 WL 1595463 (D. Puerto Rico June 5, 2009), which I found pretty remarkable.

The defendant engaged in sexually explicit online chats with a police officer posing as a 12-year-old, and sent her “obscene material” via webcam. Based on that, a judge issued a search warrant authorizing a search of the defendant’s computers for “any and all chat logs, child pornography, child erotica, information pertaining to sexual interest in children, [and] images depicting sexual contact between adults and minors.” The police executed the warrant and found child pornography, leading to federal charges against the defendant.

The defendant moved to suppress, admitting that there was probable cause to search for evidence of solicitation of a minor and for evidence of distributing obscene materials to a minor, but arguing that there was no probable cause to search for child pornography, and that the warrant was therefore overbroad. The court agreed, finding no “nexus” between solicitation of a minor and the possession of child pornography. Furthermore, although the judge determined that the warrant would have been valid without the child pornography language, and that a search under such a warrant would still have revealed the child pornography, the court nonetheless declined to apply the inevitable discovery doctrine. And finally, the court ruled that warrant was so lacking in probable cause that the good faith exception that exists under federal law did not apply.

So let me see if I have this straight: a person who has a sexual interest in children; who is actively soliciting children for sex; who is doing so via computer; who has adult pornography on his computer; and who is distributing the adult pornography to children is not reasonably likely to have child pornography on his computer? The court relied heavily on United States v. Hodson, 543 F.3d 286 (6th Cir. 2006), a case that involved slightly less jaw-dropping facts but that still reached what, to my mind, is a difficult conclusion to swallow: that there is no “link” or “nexus” between a pedophile who solicits children via computer and the possession of child pornography on that computer.

Of course, the one doesn’t follow inevitably from the other, but probable cause doesn’t mean conclusive proof. It is supposed to be a “practical, common-sense” standard, designed to assess whether there is a “fair probability” that evidence of a crime will be present. Illinois v. Gates, 462 U.S. 213 (1983). And it strikes me as perfectly “common sense” to conclude that a person who is using a computer for one illegal sexual purpose might well be using it for another, closely-related illegal sexual purpose.

As always, I welcome comments and criticisms. But I also have a specific request today. As I’ve been preparing my presentation for the judges, one thing that has jumped out at me is how few appellate cases we have in North Carolina involving searches of computers and other electronic devices. I’d appreciate your thoughts on why that’s the case, and whether there is a similar paucity of such cases in the trial courts.

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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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