The Wyoming Supreme Court has upheld digitally transmitted court authorizations for search warrants as permissible under the Fourth Amendment. Some states, such as Wyoming, already allow judges and clerks to issue search warrants without a formal written application by the officer or prosecutor. As a Massachusetts Criminal Defense Lawyer, the use to telephonic warrants represents an erosion of the warrant requirement and its use should be limited in scope by the Court.

In the cases of Terry Smith v. Wyoming, and Dena Blomquist v. Wyoming, the defendants were individually arrested for an OUI offense. Both defendants were required to submit to a blood alcohol test after a judge remotely issued a warrant. The Supreme Court of Wyoming held that these remotely communicated warrants were lawful and afford the defendants the same protections as warrants that were formally applied for by written affidavit.

The Wyoming state legislature passed a statute authorizing officers to compel arrestees to submit to chemical tests once the officer has a search warrant issued on paper or one that is “remotely communicated.” The statute defines a “remotely communicated warrant” as a communication between a judicial officer and the police officer or prosecutor authorizing a search by voice transmission, image, or text as long as the communication is recorded. The communication may be recorded in writing, or by any other means.

As technology advances, a slew of new legal issues have found their way into courts across America. Social media networks, email, texting, and other technological communications pose new questions surrounding citizens’ privacy, the 4th amendment, and search/seizures issues for police. Recently, a Florida Supreme Court ruled that police are required to obtain a search warrant before examining the contents of an arrestee’s cell phone.

In the case of Smallwood v. State, the defendant was arrested for allegedly committing an armed robbery of a convenience store. Upon his arrest, police confiscated and examined the contents of a cell phone in the defendant’s possession at the time of his arrest. Police discovered incriminating evidence on the phone, including images of a handgun, and photos of stacks of cash that were taken after the date of the robbery. However, the defendant argued that his 4th amendment right was violated.

According to the 4th amendment, United States citizens have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Warrants can only be obtained with probable cause and should specifically describe the place to be searched, and the persons or things to be seized. Further, to have probable cause, police must have legally sufficient reasons to believe a search is necessary. Law enforcement cannot just seize property to use as evidence without first obtaining a warrant. While evolving technology that provides instant access to a person’s bank accounts, medical records, contacts, photos, and communications pose seemingly new questions on search/seizure, the courts have faced these issues historically.

Since Commonwealth v. Cruz, the Supreme Judicial Court held that the smell of marijuana did not give an officer probable cause to conduct a search. Commonwealth v. Daniel, a recent decision by the Supreme Judicial Court, affirms the holding from Cruz. The Daniels decision may provide a defense to a drug stop for a Boston criminal defense lawyer based on the Fourth Amendment to the United States Constitution.

Boston police officer was patrolling Dorchester in the early hours of the morning when he observed a SUV without a driver’s side headlight make a left hand turn without signaling. The officer stopped the vehicle and when approaching the car noticed that the man sitting in the passenger’s seat was rocking back and forth. The officer could also smell marijuana when he approached the vehicle, and when he asked the driver if there was marijuana in the vehicle, the driver produced two small bags from her pockets. The driver also emptied all other possessions from her pocket.

Based on this behavior, the officer suspected that the defendant was concealing something more, so her ordered the driver to pull over further and ordered that the passenger and then driver exit the vehicle. The officer searched the passenger and subsequently the driver, finding no contraband on either person. The officer then searched the vehicle and found a firearm in the glove box.

The Supreme Court recently heard oral argument in Bailey v. United States on November 1st 2012. The predominant issue in Bailey is whether or not the precedent set forth in Michigan v. Summers, 452 U.S. 692 (1981), which allows an officer to detain an individual on the premises of a location being searched, extends to the detention of an individual the officer saw leaving the location to be searched and is no longer in the immediate vicinity.

While it can be difficult to predict how the Justices will decide a case based on the oral argument, it appears as though the Justice will decline to extend the Summers case as argued by the Government. The Government argued that the stop of Bailey away from the residence to be searched was permissible under the rationale of Summers because Bailey could have returned to the residence and threatened the safety of the officers.

The defendant argues that the Summers exception to typical warrant and detention standards should not be interpreted broadly and, in fact, should be interpreted rather narrowly. Once the individual is off of the location to be searched it is not likely they will return and pose any sort of threat to the safety of the officers or the quality of the search, and Summers would not apply, as argued by the defense.

One issue a criminal defense lawyer may use in defending a Massachusetts drug crime is to challenge the use of “Knock and Talk” searches often utilized by law enforcement.

“Knock and Talk” is a law enforcement tactic that police officers practice when they lack sufficient evidence, probable cause, or reasonable suspicion to obtain a search warrant. Typically, working off a tip, an officer will arrive at the suspect’s home, engage in conversation at the door, and then attempt to gain consent from the suspect to search the premises. This does not violate the 4th Amendment that guards against an unlawful searches or seizures so long as the suspect gives consent to search. However, a court will take into consideration if a reasonable person would have felt pressure by the officer to allow the search. “Knock and Talk” procedures are on the edge of being unlawful because this tactic has a great risk for abuse that may challenge the 4th amendment.

A criminal defense attorney in the North Carolina Court of Appeals was recently successful in challenging “Knock and Talk” tactics when the court ruled that Marijuana plants seized during a routine “Knock and Talk” violated the plain view doctrine, State v. Grice, No. COA12-577, North Carolina App. Ct. (2012).