Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 11/27/2021
E.g., 11/27/2021

The Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements. Police officers arrested four men suspected of robbing Radio Shack and TMobile stores in Detroit. One of the men confessed to a series of robberies in Michigan and Ohio, identified 15 accomplices, and gave law enforcement some of their cell phone numbers. Based on this information, prosecutors applied for court orders under the Stored Communications Act (SCA) to obtain cell phone records for defendant Timothy Carpenter. The SCA permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers—MetroPCS and Sprint—to disclose “cell/site sector [information] for [Carpenter’s] telephone[ ] at call origination and at call termination for incoming and outgoing calls” during the four-month period when the string of robberies occurred. The first order sought 152 days of cell-site records from MetroPCS, which produced records spanning 127 days. The second order requested seven days of CSLI from Sprint, which produced two days of records covering the period when Carpenter’s phone was “roaming” in northeastern Ohio. Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.

Carpenter was charged with six counts of robbery and six counts of carrying a firearm during a federal crime of violence. He moved to suppress the cell-site data provided by the wireless carriers, arguing that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause. The District Court denied the motion. At trial FBI agent Christopher Hess offered expert testimony about the cell-site data. Hess explained that each time a cell phone taps into the wireless network, the carrier logs a time-stamped record of the cell site and particular sector that were used. With this information, Hess produced maps that placed Carpenter’s phone near four of the charged robberies. Carpenter was convicted on all but one count. After an unsuccessful appeal to the Sixth Circuit, the Supreme Court agreed to take the case.

The Court began by noting that for many years Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” But, in Katz v. United States, 389 U.S. 347, 351 (1967), the Court established that “the Fourth Amendment protects people, not places,” and expanded its conception of the Amendment to protect certain expectations of privacy as well. It explained: “When an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.” (quotations omitted).

The Court noted that the digital data at issue in this case does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases. The first set of cases addresses a person’s expectation of privacy in his physical location and movements, including United States v. Knotts, 460 U. S. 276 (1983) (monitoring a beeper signal in a container in an automobile on public highways did not violate the Fourth Amendment), and United States v. Jones, 565 U.S. 400 (2012)(the government’s installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle’s movements on public streets constitutes a search within the meaning of the Fourth Amendment). In the second set of cases, including Smith v. Maryland, 442 U.S. 735 (1979),and United States v. Miller, 425 U.S. 435 (1976), the Court applied the “third-party doctrine” and has drawn a line between what a person keeps to himself and what he shares with others, holding that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Against this review, the Court presented the issue as follows:

The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his cell phone signals. Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.

At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements

It held:

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.

The Court characterized its decision as “a narrow one,” noting:

We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security.

Having found that the acquisition of Carpenter’s CSLI was a search, the Court went on to conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records. It noted that the showing required in the SCA “falls well short of the probable cause required for a warrant.” Thus, an order issued under the SCA “is not a permissible mechanism for accessing historical cell-site records. Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.” The Court continued, noting that while the Government will generally need a warrant to access CSLI, case-specific exceptions may support a warrantless search of an individual’s cellsite records, such as exigent circumstances.

The police may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. This decision involved a pair of cases in which both defendants were arrested and cell phones were seized. In both cases, officers examined electronic data on the phones without a warrant as a search incident to arrest. The Court held that “officers must generally secure a warrant before conducting such a search.” The Court noted that “the interest in protecting officer safety does not justify dispensing with the warrant requirement across the board.” In this regard it added however that “[t]o the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.” Next, the Court rejected the argument that preventing the destruction of evidence justified the search. It was unpersuaded by the prosecution’s argument that a different result should obtain because remote wiping and data encryption may be used to destroy digital evidence. The Court noted that “[t]o the extent that law enforcement still has specific concerns about the potential loss of evidence in a particular case, there remain more targeted ways to address those concerns. If the police are truly confronted with a ‘now or never’ situation—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately” (quotation omitted). Alternatively, the Court noted, “if officers happen to seize a phone in an unlocked state, they may be able to disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data.” The Court noted that such a procedure would be assessed under case law allowing reasonable steps to secure a scene to preserve evidence while procuring a warrant. Turning from an examination of the government interests at stake to the privacy issues associated with a warrantless cell phone search, the Court rejected the government’s argument that a search of all data stored on a cell phone is materially indistinguishable the other types of personal items, such as wallets and purses. The Court noted that “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse” and that they “differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” It also noted the complicating factor that much of the data viewed on a cell phone is not stored on the device itself, but rather remotely through cloud computing. Concluding, the Court noted:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.

(Slip Op at. p. 25). And finally, the Court noted that even though the search incident to arrest does not apply to cell phones, other exceptions may still justify a warrantless search of a particular phone, such as exigent circumstances.

On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 810 S.E. 2d 719 (2018) (discussed in an earlier blog post by Shea Denning, https://nccriminallaw.sog.unc.edu/state-v-terrell-private-search-doctrine/), the Supreme Court affirmed the Court of Appeals’ decision that an officer’s warrantless search of a defendant’s USB drive following a prior search by a private individual violated the defendant’s Fourth Amendment rights. While examining a thumb drive belonging to the defendant, the defendant’s girlfriend saw an image of her 9-year-old granddaughter sleeping, exposed from the waist up. Believing the image was inappropriate, the defendant’s girlfriend contacted the sheriff’s office and gave them the thumb drive. Later, a detective conducted a warrantless search of the thumb drive to locate the image in question, during which he discovered other images of what he believed to be child pornography before he found the photograph of the granddaughter. At that point the detective applied for and obtained a warrant to search the contents of the thumb drive for “contraband images of child pornography and evidence of additional victims and crimes.” The initial warrant application relied only on information from the defendant’s girlfriend, but after the State Bureau of Investigation requested additional information, the detective included information about the images he found in his initial search of the USB drive. The SBI’s forensic examination turned up 12 images, ten of which had been deleted and archived in a way that would not have been viewable without special forensic capabilities. After he was charged with multiple sexual exploitation of a minor and peeping crimes, the defendant filed a pretrial motion to suppress all of the evidence obtained as a result of the detective’s warrantless search. The trial court denied the motion, finding that the girlfriend’s private viewing of the images frustrated the defendant’s expectation of privacy in them, and that the detective’s subsequent search therefore did not violate the Fourth Amendment. After his trial and conviction, the defendant appealed the trial court’s denial of his motion to suppress. 

The Supreme Court agreed with the Court of Appeals that the girlfriend’s opening of the USB drive and viewing some of its contents did not frustrate the defendant’s privacy interest in the entire contents of the device. To the contrary, digital devices can retain massive amounts of information, organized into files that are essentially containers within containers. Because the trial court did not make findings establishing the precise scope of the girlfriend’s search, it likewise could not find that the detective had the level of “virtual certainty” contemplated by United States v. Jacobsen, 466 U.S. 109 (1984), that the device contained nothing else of significance, or that a subsequent search would not tell him anything more than he already had been told. The search therefore was not permissible under the private-search doctrine. The court affirmed the decision of the Court of Appeals and remanded the case for consideration of whether the warrant would have been supported by probable cause without the evidence obtained through the unlawful search.

Justice Newby dissented, writing that the majority’s application of the virtual certainty test needlessly eliminates the private-search doctrine for electronic storage devices unless the private searcher opens every file on the device.

State v. Wilkerson, 363 N.C. 382 (Aug. 28, 2009)

Seizure and search of the defendant’s cell phone was proper as a search incident to arrest. The defendant was arrested for two murders shortly after they were committed. While in custody, he received a cell phone call, at which point the seizure occurred. [Note: The more recent Riley decision, above.]

State v. Ladd, 246 N.C. App. 295 (Mar. 15, 2016)

In this peeping with a photographic device case, the trial court erred by denying the defendant’s motion to suppress with respect to evidence obtained during a search of the defendant’s external hard drives. The court rejected the notion that the defendant consented to a search of the external hard drives, concluding that while he consented to a search of his laptops and smart phone, the trial court’s findings of fact unambiguously state that he did not consent to a search of other items. Next, the court held that the defendant had a reasonable expectation of privacy in the external hard drives, and that the devices did not pose a safety threat to officers, nor did the officers have any reason to believe that the information contained in the devices would have been destroyed while they pursued a search warrant, given that they had custody of the devices. The court found that the Supreme Court’s Riley analysis with respect to cellular telephones applied to the search of the digital data on the external data storage devices in this case, given the similarities between the two types of devices. The court concluded: “Defendant possessed and retained a reasonable expectation of privacy in the contents of the external data storage devices …. The Defendant’s privacy interests in the external data storage devices outweigh any safety or inventory interest the officers had in searching the contents of the devices without a warrant.”

The court reversed and remanded for further findings of fact regarding the defendant’s motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on the defendant’s person which, as a result of the search, was determined to have been stolen. The court held that under Riley v. California, 134 S. Ct. 2473 (2014), the search was not justified as a search incident to arrest. As to whether the defendant had a reasonable expectation of privacy in the GPS device, the court held that a defendant may have a legitimate expectation of privacy in a stolen item if he acquired it innocently and does not know that the item was stolen. Here, evidence at the suppression hearing would allow the trial court to conclude that defendant had a legitimate possessory interest in the GPS. However, because the trial court failed to make a factual determination regarding whether the defendant innocently purchased the GPS device, the court reversed and remanded for further findings of fact, providing additional guidance for the trial court in its decision.

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