arstechnica: ECPA reform: Finally, Feds say cops’ access to your e-mail shouldn’t be time-dependent | Policymakers and civil libertarians hope that ECPA reform comes soon by Cyrus Farivar:

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For those criminal defense lawyers seeing cell phone apps targeted to them for marketing purposes (I got six emails from one in the last three months), ignore them. I started to write about it at the beginning and decided not to. The reason why I ignore them just showed up in a case today, albeit a case 10½ months old.

My clients usually come to me as a result of an arrest where they had no reasonable opportunity to call anybody at the time of their felony arrest, often at gunpoint. Also, even repeat clients are usually 7-10 years between cases. If they were to have the presence of mind to use a cell phone app to call my answering service during their evening drug arrest, they are inviting (1) serious difficulty from the police for not immediately putting their hands up and dropping the phone, and (2) a search incident of their cell phone. Marketing people don’t have a clue.

In United States v. Brown, 2012 U.S. Dist. LEXIS 186968 (E.D. Ky. May 3, 2012), the court held that a search incident of a cell phone was justified, inter alia, because “Brown ignored police commands to exit the truck while visibly manipulating a cell phone.” A person in the vehicle also fled, but that is surplusage. My review of the cases tells me that manipulating the cell phone should reasonably be interpreted by the police and the courts as an attempt to warn co-conspirators, thereby inviting a search of the phone to see whom.

American Association of Law Libraries: Book Review: More Essential Than Ever: The Fourth Amendment in the Twenty-first Century by Christine Hepler:

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Defendant refused to consent to two requests, then was silent on another request. This was not consent. Yet, the officer still searched. State’s appeal of suppression order affirmed. State v. Walker, 2013 Tex. App. LEXIS 3120 (Tex. App. – Corpus Christi-Edinburg March 21, 2013)*:

Stover: You don’t have any drugs or weapons on you tonight, do you?
Defendant: Nuh-uh.
Stover: Okay. You mind if I take a look?
Defendant: Yeah.
[Defendant exits the vehicle.]
Stover: You mind if I check to make sure you ain’t got no weapons on you?
Defendant: Yeah.

SSRN: Redefining Fourth Amendment Reasonableness: A Crime-Severity Model for Terry Stops by David Keenan & Tina Mary Thomas. Abstract:

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A search incident of defendant’s telephone for the contact list was proper under the [near carte blanche] search incident doctrine, but it’s utility quickly ended, and the exigencies dissipated. A search warrant was later required to prevent a general rummaging. United States v. Brown, 2013 U.S. Dist. LEXIS 40004 (E.D. Ky. March 20, 2013):

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Defendant was believed to have outed an undercover narcotics officer by posting his picture on Facebook. Officers got a search warrant for his computer for the crime of harassment. When executing the search warrant, drugs were found in the course of the search of a dresser because there might have been thumb drives hidden there. Whether there was probable cause was never considered; just whether the affidavit was so bare bones it couldn’t be relied on for the good faith exception, and the court concludes that it wasn’t. United States v. Pickens, 2013 U.S. Dist. LEXIS 39235 (N.D. Tex. March 21, 2013).*

The exclusionary rule generally does not apply in probation revocation proceedings, but it could if it could be shown that the search was harassing. This wasn’t. State v. Burress, 2013 Tenn. Crim. App. LEXIS 239 (March 18, 2013).*

The officers here had independent probable cause for a search of defendant’s car, so the search incident doctrine doesn’t even apply. Gant says so. 556 U.S. at 347. United States v. Savaiinaea, 2013 U.S. Dist. LEXIS 38912 (D. Utah March 19, 2013).*

NYTimes: Recording Points to Race Factor in Stops by New York Police by Joseph Goldstein:

For years, the debate over the New York Police Department’s use of stop-and-frisk tactics has centered on whether officers engage in racial profiling. Now, a recording suggests that, in at least one precinct, a person’s skin color can be a deciding factor in who is stopped.

The recording, played on Thursday in Federal District Court in Manhattan, was of a conversation between a patrol officer and his commanding officer in the 40th Precinct in the South Bronx, a violent command that recorded the highest number of police stops in the Bronx in 2011.

Law.com/Recorder: Suit Challenges Warrantless Cell Phone Searches by Julia Love:

SAN FRANCISCO — Two years after the California Supreme Court OK’d warrantless cell phone searches, a new suit aims to force a closer look at the issue.

The American Civil Liberties Union Foundation of Northern California and Pillsbury Winthrop Shaw Pittman filed suit Wednesday against the city and county of San Francisco and Police Chief Gregory Suhr on behalf of Robert Offer-Westort, a civil rights activist whose cell phone was searched after he was arrested for camping in a local plaza.

The plaintiffs want to bar the city from executing warrantless searches of arrestees’ cell phones, arguing that such searches violate the individuals’ rights to privacy and free speech provided by the California Constitution and the First Amendment to the U.S. Constitution.

This is a fascinating case on reasonable suspicion calculus and what an appellate court is expected to do in judicial review, rather than rubber stamping the trial court’s conclusion reasonable suspicion existed. Two guys standing around, one with a prior, doesn’t support a stop of both, let alone the other. Seeing a gun is not reasonable suspicion in an open carry state. United States v. Black, 707 F.3d 531 (4th Cir. 2013):

In Terry v. Ohio, Chief Justice Earl Warren recognized that police officers need discretion to perform their investigative duties. 392 U.S. 1 (1968). Since Terry, this discretion has been judicially broadened, giving police wide latitude to fulfill their functions. In some circumstances, however, police abuse this discretion, and we must remind law enforcement that the Fourth Amendment protects against unreasonable searches and seizures. Because in this case, we find the police disregarded the basic tenets of the Fourth Amendment, we reverse.

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HuffPo: Raid Of The Day: Cheryl Ann Stillwell, Killed In A Drug Raid Over Two OxyContin Pills by Radley Balko:

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Franks challenge succeeds: The affidavit was only three pages long and had a paragraph about hand-to-hand deliveries from the property that admittedly didn’t belong in there and should have been removed when drafting the affidavit. Also, the affidavit went through three levels of review before submission to the issuing court. This was reckless disregard, but still sufficient for Franks. Second, there was an attempt to connect a car to the premises but the officer omitted knowing that the car wasn’t registered to that address, and that was something the issuing judge needed to know. Striking the first reference, and adding in the omitted information leaves tenuous inferences that don’t measure up to probable cause. Finally, the good faith exception does not apply when there is a successful Franks challenge. United States v. Rodriguez-Ramirez, 2013 U.S. Dist. LEXIS 37789 (D. Utah March 18, 2013).

Evidence hidden in an uncovered boat on adjacent property was not on defendant’s curtilage. n.2: “Mr. Scott misses the mark in relying on state trespass law. The question we ask is not whether agents violated state law but rather whether they violated the Fourth Amendment. U.S. v. Walker, 960 F.2d 409, 415 (5th Cir. 1992) (stating that the Fourth Amendment does not exist to ‘discourage … violations of state law’); see also U.S. v. Eastland, 989 F.2d 760, 765-67 (5th Cir. 1993) (refusing to exclude evidence on the basis that agents were trespassing under state law).” United States v. Scott, 2013 U.S. App. LEXIS 5409 (5th Cir. March 19, 2013).*

Historical cell site location data limited to 20 days in an attempt to link defendant to a home invasion robbery was reasonable. (Also, defendant who was not the subscriber of a cell phone had no standing to challenge obtaining historical cell site location data.) United States v. Wilson, 2013 U.S. Dist. LEXIS 37783 (N.D. Ga. February 20, 2013), adopted 2013 U.S. Dist. LEXIS 37320 (N.D. Ga. Mar. 19, 2013):

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Defendant had standing to challenge the search of a grow operation where he had a key and stayed there in a sleeping bag a few nights a week. Just because it was also a commercial enterprise doesn’t mean he can’t have standing. He was not, however, the subscriber for the utilities, so he had no standing to challenge that. United States v. Calzada, 2013 U.S. Dist. LEXIS 36590 (W.D. Tex. March 18, 2013).

Defense counsel was not ineffective for not making an esoteric challenge to whether the PV warrant was lawfully issued that resulted in finding drugs in plain view. Defense counsel is not required to file every conceivable motion. This would be a “difficult facial challenge” to the state statute that likely would have failed, so no IAC. Scott v. United States, 2013 U.S. Dist. LEXIS 36982 (D. Mass. March 18, 2013).*

Border Patrol received an anonymous tip about a vehicle “full of aliens” in a Chevy Lumina near Nogales. Officers had a hard time finding a matching vehicle. They stopped a similarly colored Dodge Neon that was riding low. Nothing in the tip was specific or predictive and there was no reasonable suspicion as to this vehicle. Also, the road has both legitimate and illegitimate travelers. There was no reasonable suspicion here. United States v. Maldonado, 2013 U.S. Dist. LEXIS 37048 (D. Ariz. March 18, 2013),* R&R 2013 U.S. Dist. LEXIS 37082 (D. Ariz. January 30, 2013).*

NYTimes.com: A Focus on 3 Encounters in a Stop-and-Frisk Trial by Joseph Goldstein:

The first time the police stopped and then frisked him on his block in the Bronx, David Floyd remembered wanting only “to get home” and “be in my own space.” The second time it happened, Mr. Floyd testified, he was left with the impression that “I needed to stay in my place, and my place was in my home.”

NYLJ: Challenge to Stop-and-Frisk Policy Begins Before Scheindlin by Mark Hamblett:

The courtroom fight officially began yesterday over whether New York City police violate the U.S. Constitution by stopping, questioning and frisking hundreds of thousands of minorities every year without reasonable suspicion of criminal activity.

Darius Charney of the Center for Constitutional Rights promised Southern District Judge Shira Scheindlin (See Profile) that the evidence at the bench trial will show that “the NYPD has laid siege to black and Latino neighborhoods” by the wholesale stopping and frisking of minority youths.

In Wired.com’s Feds: No Warrant Needed to Track Your Car With a GPS Device by David Kravetts, we find that the government is fishing in the Third Circuit in United States v. Katzin that Jones should have some exceptions, especially for terrorism cases. The oral argument is today.

This case, however, United States v. Katzin, Criminal 11-226 (E.D. Pa. May 9, 2012), involves three guys accused of robbing a pharmacy.

Wired, of course, is bent out of shape about the government making any argument for exceptions. We intuitively know, however, that the Solicitor General wrote the brief and put the AUSA’s name on it. It’s the advocate’s job to make an argument for exceptions. Just like when I make arguments for exceptions to rules. It also makes a Davis good faith argument, which will probably win because most of them have.

Note: It looks and reads like an SG brief, so that case is going up.

Volokh Conspiracy: My View of How the Fourth Amendment Should Apply to Searching A Cell Phone Incident to Arrest by Orin Kerr:

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A random commercial vehicle stop and inspection under the Wyoming Commercial Vehicle Act was reasonable because the Act satisfied the Burger closely-regulated industries exception. United States v. Swift, 2013 U.S. Dist. LEXIS 36268 (D. Wyo. January 9, 2013):

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Defendant’s garage was part of the home. She parked there and entered the house through its door. Therefore, the officer’s entry there violated the curtilage. Even if the officer had probable cause defendant had been driving recklessly, he lacked exigent circumstances to enter the apartment when the defendant answered the door. He stepped in only two feet, but that’s still an entry. Corey v. State, 2013 Ga. App. LEXIS 185 (March 13, 2013).

Defendant relied on United States v. Smith, 263 F.3d 571 (6th Cir. 2001), to have standing to challenge the search of the rental car he was driving; defendant had no standing here because he had no DL and his relation to the renter was tenuous and not a family relationship. United States v. Akinola, 2013 U.S. Dist. LEXIS 35952 (D. N.J. March 15, 2013).

Defendant’s consent is voluntary. While he speaks Spanish, the recording of his interview shows he understands English. United States v. Monarrez-Mendoza, 2013 U.S. Dist. LEXIS 35584 (N.D. Tex. March 6, 2013).*