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Posts tagged "search warrant"

Consent to Examine Mobile Phone Was Valid

Consent is one of the specific exceptions to the general requirement that law enforcement authorities must have a valid search warrant prior to a constitutional search (where there is also a reasonable expectation of privacy). Under Tennessee law, a person has a reasonable expectation of privacy in the contents of the person's cell phone in his or her possession (an abandoned phone may be a different story). A police officer may only search the contents of the phone if there is a valid search warrant to do so or if one of the recognized exceptions to the warrant requirement is present. In the recent case of State v. Kohlmeyer, M2014-01359-CCA-R3-CD (Tenn.Crim.App. 7-7-2015), the Tennessee Court of Criminal Appeals affirmed a trial court decision that an examination of the defendant's cell phone was valid, due to the defendant having consented to it.

"Mandatory Blood Draw" Still Requires Warrant or Exception

A blood draw for testing its alcohol content is still considered a search under existing federal and state law. Fourth Amendment rights and privacy concerns apply. The Tennessee Court of Criminal Appeals, in State v. Brown, W2014-00162-CCA-R9-CD (Tenn.Crim.App. 4-30-2015), has again (consistent with prior appellate opinions) reviewed Tennessee's statutory provisions requiring a blood draw under certain circumstances and determined they not dispense with the constitutional warrant requirement (and are therefore not unconstitutional). Also like prior decisions, this particular opinion did not address the question of whether the mandatory blood draw provisions render 'implied consent' not revokable.

Search Warrant or Exception Required For 'Mandatory' Blood Draw

A search warrant or recognized constitutional exception to the warrant requirement is required for law enforcement authorities to conduct a blood draw for the purposes of testing the alcohol content or toxicology of a suspect's blood. Under laws passed by the Tennessee legislature, a blood draw may be 'mandatory' under certain statutory circumstances when a person is suspected of Driving Under the Influence (DUI). However, the Tennessee Court of Criminal Appeals has explained that in order to interpret these provisions consistently with constitutional law, they must be understood to still require either a search warrant or a recognized exception to the warrant requirement.

Search Warrant or Exception Required For 'Mandatory' Blood Draw

A search warrant or recognized constitutional exception to the warrant requirement is required for law enforcement authorities to conduct a blood draw for the purposes of testing the alcohol content or toxicology of a suspect's blood. Under laws passed by the Tennessee legislature, a blood draw may be 'mandatory' under certain statutory circumstances when a person is suspected of Driving Under the Influence (DUI). However, the Tennessee Court of Criminal Appeals has explained that in order to interpret these provisions consistently with constitutional law, they must be understood to still require either a search warrant or a recognized exception to the warrant requirement.

Conviction Reversed Due to Bad Search Warrant

A search warrant is a judicial authorization to search a person or place. To be valid, a search warrant must be supported by probable cause to suspect that the search may reveal evidence of a crime. The probable cause is alleged within an affidavit presented to a judge or magistrate when seeking the warrant. In the recent Tennessee case of State v Hall, M2013-02841-CCA-R3-CD (Tenn.Crim.App. 10-3-2014), the Court of Criminal Appeals concluded that the affidavit describing a controlled drug buy at a residence within seventy-two hours did not establish probable cause to support an issued warrant to search that residence and the people present there.

Conviction Reversed Due to Bad Search Warrant

A search warrant is a judicial authorization to search a person or place. To be valid, a search warrant must be supported by probable cause to suspect that the search may reveal evidence of a crime. The probable cause is alleged within an affidavit presented to a judge or magistrate when seeking the warrant. In the recent Tennessee case of State v Hall, M2013-02841-CCA-R3-CD (Tenn.Crim.App. 10-3-2014), the Court of Criminal Appeals concluded that the affidavit describing a controlled drug buy at a residence within seventy-two hours did not establish probable cause to support an issued warrant to search that residence and the people present there.

Conviction Reversed Due to Bad Search Warrant

A search warrant is a judicial authorization to search a person or place. To be valid, a search warrant must be supported by probable cause to suspect that the search may reveal evidence of a crime. The probable cause is alleged within an affidavit presented to a judge or magistrate when seeking the warrant. In the recent Tennessee case of State v Hall, M2013-02841-CCA-R3-CD (Tenn.Crim.App. 10-3-2014), the Court of Criminal Appeals concluded that the affidavit describing a controlled drug buy at a residence within seventy-two hours did not establish probable cause to support an issued warrant to search that residence and the people present there.

Search Warrant for Computer Upheld

A search warrant is formal judicial authorization for a search and/or seizure of property which may contain evidence of a crime. It requires a probable cause to suspect the property may contain evidence of a crime. It requires a 'nexus' between the suspected criminal activity and the property to be searched and/or seized. The evidence supporting the basis for the warrant is usually provided by affidavit. In a subsequent legal challenge to the issuance or validity of the warrant, a court must determine whether the affidavit contains sufficient information upon which to authorize the search in question. In the recent Tennessee case of State v. McCoy, E2013-02138-CCA-R3-CD (Tenn.Crim.App. 5-27-2014), the Court of Criminal Appeals upheld a search warrant for a computer based on suspected criminal online communication.

Search Warrant for Computer Upheld

A search warrant is formal judicial authorization for a search and/or seizure of property which may contain evidence of a crime. It requires a probable cause to suspect the property may contain evidence of a crime. It requires a 'nexus' between the suspected criminal activity and the property to be searched and/or seized. The evidence supporting the basis for the warrant is usually provided by affidavit. In a subsequent legal challenge to the issuance or validity of the warrant, a court must determine whether the affidavit contains sufficient information upon which to authorize the search in question. In the recent Tennessee case of State v. McCoy, E2013-02138-CCA-R3-CD (Tenn.Crim.App. 5-27-2014), the Court of Criminal Appeals upheld a search warrant for a computer based on suspected criminal online communication.

Specific Date of Activity Not Needed to Obtain a Search Warrant

For a judge or magistrate to issue a search warrant, probable cause for the search must be first established. This is done within an affidavit filed in support of the request for the warrant. The affidavit must supply the facts supporting probable cause for a search. In the recent case of State v. Graves, E2011-02471-CCA-R3-CD (Tenn.Crim.App. 10-4-2012), a Defendant accused of attempted sexual exploitation of a minor argued that the affidavit supporting a search warrant did not establish probable cause because it failed to include the specific date on which the illegal activity described in the affidavit was alleged to have occurred. Mr. Graves pled guilty to the offense, reserving this issue for appellate review. Unfortunately for Mr. Graves, the Court of Criminal Appeals has ruled in his case that a specific date is not required.

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