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., 09/22/2021
E.g., 09/22/2021
State v. Perry, 243 N.C. App 156 (Sept. 15, 2015)

In this drug case, no fourth amendment violation occurred when law enforcement officers obtained the defendant’s cell cite location information (CSLI) from his service provider, AT&T, without a warrant based on probable cause. The court noted that while courts have held that “real time” CSLI may be obtained only pursuant to a warrant supported by probable cause, the Stored Communications Act (SCA) allows for access to “historical” information upon a lesser showing. It continued: “The distinguishing characteristic separating historical records from “real-time” information is the former shows where the cell phone has been located at some point in the past, whereas the latter shows where the phone is presently located through the use of GPS or precision location data.” The court concluded that the CSLI at issue was historical information:

[Officers] followed Defendant’s historical travel by entering the coordinates of cell tower “pings” provided by AT&T into a Google Maps search engine to determine the physical location of the last tower “pinged.” Defendant’s cell phone was never contacted, “pinged,” or its precise location directly tracked by the officers. The officers did not interact with Defendant’s cell phone, nor was any of the information received either directly from the cell phone or in “real time.” All evidence shows the cell tower site location information provided by AT&T was historical stored third-party records and properly disclosed under the court’s order as expressly provided in the SCA.

The court found it significant that an officer testified that there was a 5- to 7-minute delay in the CSLI that he received from AT&T. The court went on to conclude that retrieval of the “historical” information was not a search under the fourth amendment. Noting that the U.S. Supreme Court has not decided whether “historical” CSLI raises a fourth amendment issue, the question is one of first impression North Carolina. The court distinguished the U.S. Supreme Court’s recent decision in United States v. Jones, 132 S. Ct. 945 (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 three respects. First, unlike in Jones, here, there was no physical trespass on the defendant’s property. Second, the tracking in question here was not “real-time” the court reiterated: “officers only received the coordinates of historical cell tower ‘pings’ after they had been recorded and stored by AT&T, a third party.” Third, the trespass in Jones was not authorized by a warrant or a court order of any kind whereas here a court order was entered. And, “[m]ost importantly,” Jones did not rely on the third-party doctrine. Citing decisions from the Third, Fifth and Eleventh Circuits, the court held that obtaining the CSLI did not constitute a search under the fourth amendment. The court distinguished the recent Fourth Circuit opinion in United States v. Graham, on grounds that in that case the government obtained the defendant’s historical CSLI for an extended period of time. Here, only two days of information were at issue. The court rejected the Graham court’s conclusion that the third-party doctrine did not apply to CSLI information because the defendants did not voluntarily disclose it to their service providers. The court continued, concluding that even if it were to find that a search warrant based on probable cause was required, the good faith exception would apply.

One judge concurred in the final disposition but disagreed with the majority’s characterization of the information as historical rather than real-time. That judge “believe[d that] allowing the majority’s characterization of the information provided by AT&T to law enforcement, based on the facts in this case, would effectively obliterate the distinction between ‘historical’ and ‘real-time’ cell site information.” However, she agreed that the good faith exception applied.

The defendant in this case pleaded guilty to manslaughter and armed robbery, while preserving his right to appeal the denial of his motion to suppress historical cell site location information (“CSLI”) that the state obtained without a search warrant. Evidence at the suppression hearing showed that police responded to a homicide and learned that a white Altima was seen leaving the scene. Officers soon located and boxed in the car but the driver fled on foot, discarding a bloody handgun as he ran. Inside the car officers found drugs, a gun, and a blood-covered cell phone belonging to the defendant. Officers applied for a court order to obtain the records of the phone, including five days of CSLI from around the time of the homicide. The application was sworn under oath and supported by affidavit, and the order was issued based on a finding of probable cause. The phone records revealed the defendant was in the area of the shooting at the time it occurred, and near the location of the white Altima when it was abandoned. The defendant moved to suppress the records on the basis that they were not obtained pursuant to a search warrant based on probable cause, violating his state and federal constitutional rights. The trial court denied the motion, finding that the court order in this case was the equivalent of a search warrant supported by probable cause. Upon review, the Court of Appeals affirmed the trial court’s ruling.

The court first addressed defendant’s federal constitutional claim. Citing Carpenter v. United States, 201 L.Ed.2d 507 (2018), the appellate court agreed that obtaining historical CSLI constituted a search, which requires a warrant supported by probable cause. A court order issued pursuant to the Stored Communications Act (“SCA”) based only on “reasonable grounds” to believe the records would be “relevant and material” to the investigation would not satisfy that standard. However, the order in this case was obtained two years before Carpenter was decided, and it was issued in compliance with the law at that time. Therefore, as in Carpenter, “even assuming law enforcement did conduct a warrantless search in violation of defendant’s Fourth Amendment rights, the federal good faith exception to the exclusionary rule would apply.”

Turning to the state constitutional claim, and noting that the state right at issue must be interpreted at least as broadly as the federal right, the court held that “a warrantless search of historical CSLI constitutes an unreasonable search in violation of a defendant’s rights under the North Carolina Constitution as well.” But after reviewing the statutory requirements for a search warrant and the probable cause standard, the court concluded that the order in this case did satisfy the warrant requirement. First, although it was denominated a court order rather than a warrant, it nevertheless “contained all of the information required in a search warrant” such as the applicant’s name, sworn allegations of fact to support the applicant’s belief, and a request to produce the records. Second, although a court order issued under the SCA is only required to meet a “reasonable grounds” standard akin to reasonable suspicion, the order in this case was actually based upon a finding that there was “Probable Cause that the information sought is relevant and material to an ongoing criminal investigation, involving a First Degree Murder.” That finding of probable cause was “a significant distinction which compels a different outcome than that of Carpenter. Accordingly, because the trial court determined there was probable cause to search defendant’s historical CSLI, the requirements for a warrant were met and defendant’s constitutional rights were not violated.” Since it held that the warrant requirement was met, the majority declined to address whether a good faith exception could have applied under state law.

In a partial concurrence, Judge Dillon disagreed with the majority’s holding that the court order in this case was the equivalent of a search warrant. In his view, the application failed to provide a sufficient basis for finding probable cause to believe that evidence of a crime would be discovered in the particular place to be searched. However, he concurred in the result on the grounds that both the federal and state constitutional claims were refuted by the good faith exception. He would have held that North Carolina does have a good faith exception, pursuant to the 2011 amendment to G.S. 15A-974, which provides legislative authority for the exception that was lacking when State v. Carter, 322 N.C. 709 (1988) was decided. Alternatively, pursuant to state case law, he would have held that obtaining historical CSLI did not constitute a “search” for state constitutional purposes.

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