In April, the state’s second-highest court again confronted the issue of warrantless searches and seizures by police. In this instance, the court ruled that police needed a search warrant before information on a GPS device held by a suspect would be admissible as evidence in court. It also was asked to determine if a suspect has an expectation of privacy regarding stolen property in his possession.
On April 2, 2012, Charlotte-Mecklenburg Police Department motorcycle officers Aaron Skipper and Todd Watson were patrolling Charlotte’s Villa Heights neighborhood. They spotted a man walking on the sidewalk who was dirty looking and wearing torn clothing, with, according to court documents, “unusually bulging pants pockets.” The documents said the man “could have passed for one of the homeless common to the area.”
The man told officers his name was Kenneth Clyburn and provided his date of birth. Clyburn said he was walking around the corner to his mother’s house. Clyburn continued walking, but when he turned in a different direction, the officers stopped him again. Skipper asked Clyburn what he had in his pocket. Clyburn produced a cell phone and a pair of binoculars.
Skipper then asked to search Clyburn, who consented. The officer found a crack pipe in Clyburn’s waistband and placed him under arrest. A search of Clyburn’s pockets produced a box cutter, several small shards of auto glass, and a Garmin GPS attached to a car charger.
Without asking Clyburn whether they could examine the GPS, the officers pressed its “home” button, which gave an address in Blowing Rock. A search of the GPS’ address history also revealed an address several blocks away. The Charlotte-Mecklenburg Police Department went to the address and found a car with a broken window and a Garmin user manual on the front seat. The homeowner wasn’t aware that his car had been vandalized and identified the GPS the officers had taken from Clyburn had as his.
Clyburn was charged with felony breaking and entering a motor vehicle, misdemeanor larceny, possession of drug paraphernalia, and being a habitual felon. Superior Court Judge Robert Bell held, however, that evidence from the search of the GPS was inadmissible at trial. The state appealed this determination.
The first issue before the Court of Appeals was whether the officers could search through the information held by the GPS after they arrested Clyburn. The appeals court held that they could not.
“We hold that the United States Supreme Court’s recent decision in Riley v. California applies to the search of the digital data stored on a GPS device, and affirm the trial court’s conclusion that the search incident to arrest exception does not apply in this case,” wrote Judge Martha Geer for the appeals court.
Riley was the landmark 2014 decision in which the federal justices held that the prohibition on unreasonable searches in the Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before they can go through the information stored on a suspect’s cell phone after arrest.
But does a suspect have any right to keep private information on a stolen device? The state argued that Clyburn’s Fourth Amendment rights weren’t violated because the GPS didn’t belong to him. Clyburn contended that was not the issue because the GPS device was on his person.
The appeals court came down in the middle, finding that Clyburn had consented to the search but in certain limited circumstances, Fourth Amendment protections may extend to searches of stolen property.
“Consequently, the question remains whether defendant had a reasonable expectation of privacy with respect to the GPS,” wrote Geer.
“With respect to searches of stolen property that do not fall under the umbrella of a defendant’s reasonable expectation of privacy in his home or person, the case law suggests that a defendant may nevertheless challenge the search if he can show at the suppression hearing that he acquired the stolen property innocently and did not know that the item was stolen.”
Clyburn had claimed that he didn’t know the GPS was stolen and that he bought it from someone he didn’t know. Since Clyburn’s suppression hearing did not determine whether he purchased the GPS or stole it, the appeals court ordered a new hearing to the address the issue.
Court of Appeals rulings are binding interpretations of state law unless overruled by a higher court. Because the three-judge panel of the appeals court issued a unanimous ruling, the N.C. Supreme Court is not required to hear the case should either side challenge it.
The case is State v. Clyburn (13-1445).
Michael Lowrey is an associate editor of Carolina Journal.