Remember Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), on exigency for imminent destruction of evidence? Back on April 26th, the Kentucky Supreme Court held on remand that the state still failed to show exigency. (Posted here.) I noted that a petition for cert. was filed July 25, 2012, and it was conferenced December 7th. No action shown.

This suggests to me that a cert. grant is likely. How dare the Kentucky Supreme Court not toe the line…

The search warrant for defendant’s cell phone was sufficiently particular when the particularity clause was limited to evidence of a particular crime. United States v. Juarez, 2013 U.S. Dist. LEXIS 11869 (E.D. N.Y. January 28, 2013):

Thus, George, Bianco, and Rosa teach that a warrant satisfies the particularity requirement when it sufficiently identifies and describes the items to be searched and seized and links that evidence to the specific criminal activity being investigated. When a warrant does so, it “ensures that the search will be carefully tailored to its justifications, and will not take on the character of wide-ranging exploratory searches.” Bianco, 998 F.2d at 1122 (internal quotation marks and citations omitted). As applied to electronic devices, this rule similarly guards against a general search of all of the device’s records, files and data.

B. Application to this Case

The warrant here meets the particularity requirement of the Fourth Amendment. It identifies the type of evidence to be seized as “numbers assigned to the below-described electronic device, any numbers, digits, letters and symbols stored in the memory of said device, as well as any digital photographs and video recordings,” so long as that evidence tends “to demonstrate the commission of Unlawful Surveillance in the Second Degree, P.L. § 250.45(4), in the vicinity of 4th Avenue and 14th Street, New York, New York, and the commission of related crimes, and conspiracy to commit those crimes.” (Ex. B to Weil Decl.) First, the evidence sought was described with particularity; it identifies photographs and video recordings as among the types of evidence sought. Second, it “linked that evidence to the criminal activity supported by probable cause.” Rosa, 626 F.3d at 62. The warrant authorized a search for “evidence tending to demonstrate the commission of Unlawful Surveillance in the Second Degree” and related crimes, all occurring at a specific location in New York City.

The government sought an order under § 2703(d) for historical cell-site location information (CSLI) on defendant’s telephone to link her to a drug conspiracy. At the minimum, validity of a § 2703(d) order is governed by the good faith exception, so the order will not be suppressed. United States v. Muniz, 2013 U.S. Dist. LEXIS 12162 (S.D. Tex. January 29, 2013):

To obtain CSLI under 18 U.S.C. § 2703(d), the government must present “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” If getting the information required a probable cause showing, suppression is required unless an exception applies. Davis v. United States, 131 S.Ct. 2419, 2426-27, 180 L. Ed. 2d 285 (2011) (“[T]he exclusionary rule is a prudential doctrine … created by this Court to compel respect for the constitutional guaranty.” (citation omitted)).

Under the “good-faith exception,” suppression of evidence obtained without a valid search warrant is not required if law enforcement relies in good faith on a search warrant issued by a judicial officer, or believes in good faith that a warrantless search is authorized. United States v. Leon, 468 U.S. 897, 920, ….

Citing United States v. Skinner, 690 F.3d 772, 785 (6th Cir. 2012) (Donald, J., concurring) (“While this circuit’s law is not well developed on this point, numerous courts have held that privacy expectations are not diminished by the criminality of a defendant’s activities.”), the Western District of Tennessee concludes that, at least in the Sixth Circuit, use of an alias on a shipped package containing drugs is not an abandonment or a waiver of an expectation of privacy. United States v. Williams, 2012 U.S. Dist. LEXIS 185177 (W.D. Tenn. December 3, 2012):

There are two possible ways to interpret the concurrence. First, because some people employ an alias and use the mail illegally, everyone with a legitimate reason to remain anonymous should lose their expectation of privacy in the post. Alternatively, only people using an alias for legitimate reasons may retain an expectation of privacy in their mailings while those who employ an alias for illicit purposes may not. Both constructions turn the Fourth Amendment on its head.

The first approach assumes that criminals can forfeit the privacy interests of all persons by using a confidential domain for nefarious ends. Any creative means that a person engaging in illegal activity devises to conceal that fact will lead to the end of privacy for persons engaged in wholly legitimate confidential activities. For example, if persons engaged in illegal drug sales often use hotel rooms for their transactions, or commonly employ cellular telephones to communicate the terms of their deals, then under the concurrence’s analysis no one would retain a legitimate expectation of privacy in the use of hotel rooms or cellular telephones.

Under the second approach, only criminals forfeit their Fourth Amendment rights. The illegal contents of the package serve as an after-the-fact justification for a search. …

The plaintiff here had no reasonable expectation of privacy from the tax assessor looking at his house, including the back, purely for tax assessment purposes, just like plaintiff didn’t as to a meter reader or the postal worker. Plaintiff had no reasonable expectation of privacy from the tax assessor doing his job. Covey v. Assessor of Ohio County, 2013 U.S. Dist. LEXIS 10233 (N.D. W.Va. January 25, 2013):

Much like a property owner has no reasonable expectation of privacy with regard to a meter reader or postal worker entering the curtilage of his or her home for the purposes of reading utility meters and delivering mail, neither do the Coveys have a reasonable expectation of privacy with regard to items viewable by the naked eye from the curtilage of their home when a property tax assessor is executing the responsibilities of his employment. There is no evidence to suggest that Mr. Crews did anything beyond executing the normal responsibilities of his employment as a tax assessor, and thus no search was conducted by him under the test delineated in Katz. See Wildgren v. Maple Grove Twp., 429 F.3d 575 (6th Cir. 2005) (“[A] property assessor does not conduct a Fourth Amendment search by entering the curtilage for the tax purpose of naked eye observations of the house’s plainly visible exterior attributes and dimension.”); Taylor v. Mich. Dep’t of Natural Res., 502 F.3d 452, 456-57 (6th Cir. 2007) (Noting the importance of the “methods of observation and purpose of [the entrant’s] conduct” in determining whether a search occurred).

(Updated to change case name.)

The protective sweep here was excessive because it was to find evidence, not people. Also, the search for defendant’s cell phone under the guise of protective sweep meant that it was not in “plain view.” Also, Art. 36(1)(b) of Vienna Convention on Consular Relations requires a foreign national’s embassy be notified of his arrest, but failure to do so doesn’t lead to suppression of statements. United States v. Silva, 2013 U.S. Dist. LEXIS 10425 (W.D. Wash. January 25, 2013):

The Court finds government agents exceeded the scope of their lawful entry into the home and the protective sweep. First, Agent Escobar arrested Silva within a minute of their entry into the home. Silva was handcuffed without incident. Yet, government agents remained in the home, failing to depart after the arrest was completed. Instead, without a search warrant and without advising Silva of his Miranda rights, Agent Escobar questioned Silva with the purpose of obtaining incriminating evidence. The Court cannot find a reasonable basis upon which the questions posed by Agent Escobar— the presence of guns, drugs, and money as well as the location of Silva’s cell phone—related to his arrest. At oral argument the government contends the delay was justified in order to allow Silva to dress. Given the nature of Agent Escobar’s questioning, directed at locating the cell phone, not the Defendant’s clothing, the Court finds this argument disingenuous. Agent Escobar did not ask Silva where he kept his pants. Instead, in an apparent effort to skirt the lack of a search warrant, government agents remained in the home to obtain incriminating evidence. In doing so, government agents exceeded the scope of their lawful entry into the residence. The sweep for safety was quickly accomplished and there was no need to go to the bedroom except to locate the phone.

Second, the Court does not believe the discovery of the cell phone was the result of plain view. For the plain view doctrine to apply, “‘two requirements must be met: the officers must be lawfully searching the area where the evidence is found and the incriminatory nature of the evidence must be immediately apparent.'” United States v. Stafford, 416 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted). As discussed in the preceding paragraph, although government agents had authority to enter the Silva home for the purpose of arresting him and to conduct a sweep for their own protection, the scope of that authority was exceeded when after arresting Silva, they remained to conduct a fishing expedition in an effort to locate the cell phone. …

A § 2703(d) order to Twitter to disclose information in the Bradley Manning case is not subject to a public right of access and public filing the same as search warrants. The police arguments are significantly different. In Re: Application of the United States of America for an Order Pursuant to 18 U.S.C. Section 2703(d), 11-5151 (4th Cir. January 25, 2013):

Subscribers concede that there is no long tradition of access specifically for § 2703(d) orders, given that the SCA was enacted in 1986. However, they argue that under Press Enterprise, where a relatively new process is at issue, courts focus on the logic prong. Our post-Press Enterprise precedent makes clear that both the experience and logic prongs are required. See Goetz, 886 F.2d at 64 (stating a conjunctive test); see also United States v. Gonzales, 150 F.3d 1246, 1258 (10th Cir. 1998) (citing Goetz for the proposition that some courts adopt the approach that Press-Enterprise requires satisfaction of both prongs).

Even assuming only the logic prong is required, this prong is not met. The logic prong asks whether public access plays a significant role in the process in question. The § 2703(d) process is investigative, and openness of the orders does not play a significant role in the functioning of investigations. Section 2703(d) proceedings consist of the issuance of and compliance with § 2703(d) orders, are ex parte in nature, and occur at the investigative, pre-grand jury, pre-indictment phase of what may or may not mature into an indictment. Pre-indictment investigative processes “where privacy and secrecy are the norm” “are not amenable to the practices and procedures employed in connection with other judicial proceedings.” See In re Sealed Case, 199 F.3d 522, 526 (D.C. Cir. 2000).

NCIS was investigating potential criminal activity of Navy personnel in civilian areas of Guam, and that was a proper investigative function. Therefore, the Posse Comitatus Act wasn’t violated, and there was nothing to suppress. (The defense also raised dismissal as a remedy, which case law settles it isn’t without a pattern. Here, none.) United States v. Ho, 2013 U.S. Dist. LEXIS 10007 (D. Guam January 22, 2013).

Knowledge of right to refuse a consent search is weighty on voluntariness. “Moreover, a review of the ‘Permissive Authorization for Search and Seizure,’ which was signed by Defendant Ho, shows the following statement, “I have been informed of my constitutional right to refuse to permit this search in the absence of a search warrant. In full understanding of this right, I have nevertheless decided to permit this search to be made.’” United States v. Ho, 2013 U.S. Dist. LEXIS 10010 (D. Guam January 22, 2013).

The search warrant for defendant’s computer was issued the day after it was seized, and this is, of course, [quite] reasonable [considering cases have permitted much longer delays elsewhere]. United States v. Devlin-Bell, 2013 U.S. Dist. LEXIS 9876 (E.D. Pa. January 17, 2013).*

Apparently abandoned rental property was subject to landlord and police entry. If viewed merely as a consent, the landlord could not consent to the police entering, too, because the landlord’s authority to enter is limited. A point in opposition to search raised for the first time at oral argument is waived. Frobouck v. State, 2013 Md. App. LEXIS 6 (January 24, 2013).

Where the defendant shipped a package to a DEA CI, the CI had the ability to consent as would a common tenant. “Assuming (without deciding) that Defendant has standing, the Court holds that the DEA had the consent of the CS to accept delivery of the packages and conduct the warrantless searches of their contents.” United States v. Williams, 2013 U.S. Dist. LEXIS 10051 (W.D. Tenn. January 25, 2013).*

The fact that one of three taillights was out is normally not a basis for a stop in Arizona. Here, the officer also testified that the vehicle posed a potential safety hazard because others approaching from the rear might not be able to judge its speed. That made the stop reasonable. State v. Becerra, 2013 Ariz. App. LEXIS 7 (January 10, 2013).*

Los Angeles Times: Pregnant woman hogtied by officers gets $250,000 settlement by Richard Winton:

Tamara Gaglione was pulled over for talking on her cellphone while driving on the freeway. A video captured her being hurled to the ground and tied up.

Defendant’s arrest for disorderly conduct was valid. While she was at the police station, the police contended that her nervousness justified a strip search under state statute, but the court found that this was essentially retroactive reasonable suspicion, and refused to find that it justified the strip search. State v. Barron, __ Wash. App. __, 284 P.3d 231 (2012).*

Defendant’s allegedly giving a false identity when he was stopped was reasonable suspicion for a detention and then probable cause for arrest. State v. Matthews, 100 So. 3d 890 (La. App. 4 Cir. 2012).*

Crossing the fog line twice justified a stop. State v. McGee, 2012 Tenn. Crim. App. LEXIS 724 (September 13, 2012).*

Defendant’s dodging a DUI roadblock with an abrupt furtive movement was reasonable suspicion for a stop. Stinson v. State, 318 Ga. App. 351, 733 S.E.2d 390 (2012).*

Defendant’s father gave his name to the FBI as possibly radicalized in Yemen, and what the FBI learned about him through that investigation was an independent source for much of the investigation. A second search of defendant’s computer by the government was denied. That would be addressed in a classified opinion. United States v. Mohamud, 2012 U.S. Dist. LEXIS 151430 (D. Ore. October 22, 2012).*

“ Although the circumstances of Young’s arrest were likely to have been intimidating, the record demonstrates that after he was taken into custody, Woeppel and Hanley holstered their guns, spoke to Young in a conversational tone and explained that they were with the DEA and were there to execute an arrest warrant. It was only after this explanation that the agents asked Young whether they could search the residence. The credible testimony demonstrates that Young agreed to the search and assisted the agents in identifying the key to the front door.” United States v. Young, 2012 U.S. Dist. LEXIS 151160 (W.D. N.Y. October 19, 2012).*

On the Media: Facebook’s New Social Search:

Facebook has introduced a new search tool called social graph search, which lets users search across the Facebook database by users’ interests. Privacy advocates aren’t pleased with the new feature, arguing that it makes information about users too easy to find. Bob talks to Tom Scott, who has been given early access to the feature and has been publicizing some of his searches.

Yet another diminution of privacy, merely using computer software to reveal what’s already there.

Facebook is Exhibit A proving we have created a whole generation of people who have no respect for their own privacy. More importantly, what does that say about the future of the Fourth Amendment? That scares me.

As H.R. “Bob” Haldeman put it on the Nixon White House tapes, “Once the toothpaste is out of the tube, it is hard to put it back in.” Once you put something on the Facebook or the Internet, you can’t take it back. Even if you delete it, there are websites that can recreate pages at a particular time, and, worse yet, Facebook can provide it by subpoena.

Now, if Facebook would only require a search warrant like Google and Yahoo!. Regretfully, I suspect Mr. Zuckerberg’s mentality on this is informed only by his own desire to acquire more information which he knows modern Americans will stupidly give up. We all know it. What does this portend for privacy advocates in the next decade?

WaPo: Accused drug dealer, representing himself, hears prosecutors open their case by Matt Zapotosky. Antoine Jones, the citizen accused in United States v. Jones, started his trial this last week, representing himself:

As prosecutors laid out the case against him, Antoine Jones took copious notes, loudly tearing sheets of paper from a notebook as he filled each page.

Jones, a former nightclub owner and suspected high-level cocaine dealer, is representing himself in what is his third trial on a drug conspiracy charge. If Friday’s brief proceedings in the District’s federal court were any indication, the next several weeks of arguments and testimony will provide several more memorable moments.

NYTimes Editorial: When Police Violate the Constitution:

The federal courts are bearing down on the New York City Police Department’s constitutionally suspect stop-and-frisk program, under which hundreds of thousands of citizens are stopped on the streets each year, often illegally and for no discernible reason. Earlier this month, the federal judge who is presiding over three lawsuits that challenge different parts of the program issued her harshest ruling yet, putting the city on notice that some aspects of stop and frisk are clearly unconstitutional.

The ruling, by Judge Shira Scheindlin of Federal District Court in Manhattan, came in the case of Ligon v. the City of New York. The case was brought on behalf of people who say they were illegally stopped, given tickets or arrested on trespassing charges in private apartment buildings, some of them in buildings where they lived.

The judge excoriated the city for flagrant indifference to the Fourth Amendment. …

Atlantic.com: ‘Stop and Frisk’ May Be Working—But Is It Racist? by Jesse Alejandro Cottrell:

New York’s policy might indeed be reducing gun violence. But residents aren’t sure it’s worth the cost.

“I just got stopped like two blocks ago,” said a frustrated Harlem teenager to the two police officers who approached him.

This is the first recorded audio of a New York City “stop and frisk” recorded surreptitiously by a 16-year-old brown-skinned high schooler identified only as “Alvin.” Soon after, the encounter escalates into shouting.

“Why are you carrying an empty book bag?” the police ask Alvin.

“Because I had my hoodie in there. It was cold.”

“You want me to smack you?”

“Why you gonna smack me?”

“Who the fuck do you think you’re talking to? Shut your fucking mouth.”

Quick clicks of tightening handcuffs are heard on the recording as Alvin frantically asks, “What am I getting arrested for?”

One of the policemen responds, “For being a fucking mutt.”

“That’s against the law, being a mutt?” Alvin asks.

“I will break your fucking arm off right now,” the policeman answers.

The recording, which surfaced earlier this year on The Nation’s website, enraged civil rights activists already demanding the overhaul of Stop and Frisk, a New York City Police Department program that has led to the stops and searches of hundreds of thousands of New Yorkers, most of whom are black or Latino, every year.

DigitalCrazyTown: Google Exec: Data Privacy Laws Violate the Fourth Amendment by Cynthia Brumfield:

(Washington, DC) The main existing law that limits the scope of law enforcement electronic snooping violates the Fourth Amendment to the Constitution when it comes to Internet communications, a top Google expert said here today. Speaking at the Congressional Internet Caucus’ Annual State of the Internet Conference, Google’s Director of Law Enforcement and Information Security Richard Salgado said that “our view is that the statute [the Electronic Communications Privacy Act or ECPA] is out of compliance with the Fourth Amendment because the government can call for the production of your data without a search warrant.” The Fourth Amendment guards against unreasonable searches and seizures by the government.

ECPA, drafted in the 1980s when telephones were the primary mode of electronic communications, does not extend to email or other forms of Internet communication. Under ECPA, government authorities can and do request user information records with either commonplace, easy-to-issue subpoenas or with little more than written notices stating that the data are pertinent to an investigation. Telephone wiretaps, on the other hand, are usually subject to more stringent requirements for search warrants, which are issued by courts and judges and are based on the legal standard of probable cause.

Two queries:
(1) Why is this website the first to report this?
(2) Why isn’t Google, with more money than the U.S. Government, not litigating this? Or are they waiting for the right opportunity to sue?

This just states the obvious: Technology can overwhelm statute, and that makes it unconstitutional. That’s exactly what happened with ECPA.

In a drug-homicide death penalty case, three informative Fourth Amendment opinions on standing and nexus [the court has an “opinions” page [also here]; check back to see if posted]:

1. Whether an organizer has standing in the “office” of this DTO is a close question, and this defendant might actually have it. Moreover, the government makes many contentions of this defendant’s control over and presence at the place then argues he still doesn’t have standing. So, assuming standing, he loses on the merits of staleness, lack of probable cause, and a Franks issue. United States v. Savage, 2013 U.S. Dist. LEXIS 9360 (E.D. Pa. January 24, 2013).* As to standing, which is all dicta:

Defendant’s classification of 3510 Palmetto as his “office” also bolsters his claim to standing. See, e.g., United States v. Chaves, 169 F.3d 687, 690-91 (11th Cir. 1999) (defendant had legitimate expectation of privacy in warehouse despite lack of formal ownership and maintenance of a different “principal place of business,” because he conducted business and kept personal possessions there). The fact that Defendant was employed in the business of narcotics distribution does not negate the legitimate expectation of privacy in a place of business under his control.

The Government contends that management of a criminal enterprise dedicated to narcotics distribution is not a privacy interest that society is prepared to recognize as legitimate. It is true that an “interest in possessing contraband cannot be deemed ‘legitimate.'” Illinois v. Caballes, 543 U.S. 405, 408 (2005). At stake for Defendant here was not merely an interest in possessing contraband that could justify, as in Caballes, a cursory dog sniff of a vehicle. Much of Defendant’s business operations were conducted from the 3510 Palmetto warehouse.

We will assume that Defendant has standing to challenge this search, even as we have reservations about 3510 Palmetto’s status as an “office.” Accordingly, we will proceed to Defendant’s substantive Fourth Amendment claims.

2. “Defendant’s use of an alias in renting Apartment 46C and registering the Villager does not negate his standing to challenge this search.” Defendant’s car was sufficiently connected to drug activity and was where he was found, and it was named in the warrant. Its search was proper, and, if it wasn’t, the good faith exception clearly applies. United States v. Savage, 2013 U.S. Dist. LEXIS 9354 (E.D. Pa. January 24, 2013):

Defendant’s use of an alias in renting Apartment 46C and registering the Villager does not negate his standing to challenge this search. See, e.g., United States v. Watson, 950 F.2d 505, 508 (8th Cir. 1991) (defendant had standing to challenge search when he had rented home under alias); United States v. Pitts, 322 F.3d 449, 459 (7th Cir. 2003) (defendant had standing to challenge search of mail sent to alias); United States v. Newbern, 731 F.2d 744, 748 (11th Cir. 1984) (defendant had standing to challenge search of hotel room rented to alias). Defendant had rented Apartment 46C several weeks prior to his arrest and the subsequent search of the apartment. (Notice of Occupancy.) Defendant was, by all accounts, residing in Apartment 46C at the time of his arrest. Similarly, the Villager was registered to Defendant’s alias and was sitting in front of the apartment. Accordingly, Defendant has standing to challenge the search of Apartment 46C and the Villager.

3. Sufficient nexus was shown to search defendant’s storage locker based on the facts and the affiant officer’s assertion of knowledge of where drug traffickers keep their stuff. United States v. Savage, 2013 U.S. Dist. LEXIS 9362 (E.D. Pa. January 24, 2013):

Defendant also argues that “the information provided within the four corners of the affidavit fails to establish a sufficient nexus between the alleged criminal activity and the storage locker.” (Def.’s Mot. 20.) Courts may inquire into whether there is probable cause as to “the nexus between the crime and the place to be searched.” United States v. Jones, 994 F.2d 1051, 1054 (3d Cir. 1993). Such a nexus can “be established by direct observation or by normal inferences.” United States v. Martinson, 811 F. Supp. 1097, 1102 (E.D. Pa. 1993) (citations omitted).

Special Agent Lewis’s Affidavit was more than sufficient to establish probable cause to believe that Unit #105 was linked to the drug trafficking crimes in which Defendant was a suspect at the time. The Affidavit notes that the receipt was seized from Defendant’s vehicle. (Affidavit ¶ 9.) It notes that the search of Apartment 46C—in front of which the Villager was parked—yielded illicit controlled substances and equipment used for processing cocaine. (Id. at ¶ 8.) It further describes conversations with Anne Ketterer at Devon, which yielded evidence that Defendant, using his alias, had rented Unit #105. Finally, the Affidavit notes, based on Special Agent Lewis’s training and experience, that “individuals who distribute controlled substances frequently use storage facilities” for illegal purposes. (Id. at ¶ 13.) The experience of an affiant can assist a magistrate in determining that probable cause exists. See, e.g., United States v. Price, 558 F.3d 270, 282-83 (3d Cir. 2009) (finding probable cause to search defendant’s home where the affiant stated in the affidavit that based on his experience, individuals who engage in drug trafficking often keep drugs, money and other contraband in their homes). The Affidavit clearly establishes that Defendant was connected to illegal drug activities, and that Defendant was connected to Unit #105. We are satisfied that Judge Smith had more than a sufficient basis upon which to determine that there existed probable cause to issue the Devon search warrant.

NY Daily News: NYPD Commissioner says department will begin testing a new high-tech device that scans for concealed weapons | The device, which tests for terahertz radiation, is small enough to be placed in a police vehicle or stationed at a street corner where gunplay is common by Rocco Parascandola:

Get ready for scan-and-frisk.

The NYPD will soon deploy new technology allowing police to detect guns carried by criminals without using the typical pat-down procedure, Police Commissioner Raymond Kelly said Wednesday.

The department just received a machine that reads terahertz — the natural energy emitted by people and inanimate objects — and allows police to view concealed weapons from a distance.

“If something is obstructing the flow of that radiation, for example a weapon, the device will highlight that object,” Kelly said.

Defendant was not yet in custody when he was Mirandized and lawyered up. Then the officer asked for and got consent for a DNA sample. “Frazier knew he was not under arrest and was free to leave at any time. We also cannot find any sign that law enforcement’s actions were so coercive that Frazier’s will was overborn.” Defendant wasn’t in custody so that did not violate the Fifth and Sixth Amendments. State v. Frazier, 2013 Ohio 142, 2013 Ohio App. LEXIS 115 (3d Dist. January 22, 2013).*

Defendant was stopped for an expired LPN in a high crime area. When the officer approached the driver, the officer could see a digital scale in the pocket on the back of the front seat. Defendant was asked to get out of the car, and he refused. He was physically removed. He was asked it he was armed, and he wouldn’t say. He was handcuffed. The smell of marijuana was coming from the car, and he voluntarily consented to a search of the car. United States v. Smalls, 2013 U.S. Dist. LEXIS 9681 (D. S.C. January 24, 2013).*