The fact the defendant only shared his child pornography with “friends” on the GigaTribe peer-to-peer network does not create a reasonable expectation of privacy. After all, he never otherwise communicated with the officer he was chatting with who requested child porn that he sent. United States v. Brooks, 2012 U.S. Dist. LEXIS 178453 (E.D. N.Y. December 17, 2012)*:

Brooks contends that he “maintained a reasonable expectation of privacy” in his GigaTribe files because the peer-to-peer network was open only to “friends.” (Def. Br. (Doc. No. 23-5) at 12.) Even accepting that proposition as true, the Supreme Court has “consistently [ ] held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). In applying this principle to emerging internet technologies, courts have uniformly held that a user of a private or “closed” peer-to-peer network such as GigaTribe who makes available files to his “friends” does not have an objectively reasonable expectation of privacy in those files he shared. See United States v. Soderholm, 11-cr-3050, 2011 WL 5444053, at *7 (D. Neb. Nov. 9, 2011) (holding that the “defendant did not have an objectively reasonable expectation of privacy in the files stored on his computer once he designated those files for sharing with the ‘friends’ on his private network”); United States v. Sawyer, 786 F. Supp. 2d 1352, 1356 (N.D. Ohio 2011) (holding that the “[d]efendant did not have an objectively reasonable expectation of privacy in the information that he shared over GigaTribe”); United States v. Ladeau, 09-cr-40021, 2010 WL 1427523, at *5 (D. Mass. Apr. 7, 2010) (holding that once the defendant “turned over the information about how to access the network to a third party, his expectation of privacy in the network became objectively unreasonable”). This Court joins in so holding, and finds that once Brooks accepted the undercover agent as a “friend” and designated as shared certain files to which the undercover could gain access, Brooks had no legitimate expectation of privacy in those shared files.

EFF: Newly Released Drone Records Reveal Extensive Military Flights in US:

View EFF’s new Map of Domestic Drone Authorizations in a larger window.

Today [12/5] EFF posted several thousand pages of new drone license records and a new map that tracks the location of drone flights across the United States.

These records, received as a result of EFF’s Freedom of Information Act (FOIA) lawsuit against the Federal Aviation Administration (FAA), come from state and local law enforcement agencies, universities and—for the first time—three branches of the U.S. military: the Air Force, Marine Corps, and DARPA (Defense Advanced Research Projects Agency).

For the one in Arkansas, I copied this:

Governmental Body/Entity: North Little Rock Police Dept

Type of Drone: Rotomotion SR30 UAS helicopter

Status: Active

General Location of Drone Activity: Little Rock, AR

Stated objective/purpose of COA: Operation of the Rotomotion SR30 UAS helicopter in the National Airspace System over unpopulated areas of Lonoke County, Arkansas. The objective is to gather data regarding operation of UAS helicopters in the National Airspace System for future UAS helicopter operations in support of local law enforcement. Operation of the Rotomotion SR30 UAS helicopter below 400′ AGL. All flight operations will be conducted south of Interstate 40. This is an unpopulated area of a company owned park consisting of parking areas and recreational areas. The operation will launch/recover from a fenced recreational area. Operations will be conducted only when the recreational areas are not in use. Flights will be conducted during daylight hours during optimal weather conditions. Flights will be limited to line of sight distances. Flight durations will not exceed sixty minutes in length. Flight crews will demonstrate flight planning, flight plan execution, change in flight path upon command by the observer to avoid simulated aircraft traffic, and recovery of the aircraft to the planned landing point. Emergency proceedures including manual control of the aircraft, recovery to a pre-planned emergency recovery point, and loss link proceedures will also be demonstrated.

Effective Dates: May 17, 2011-May 16, 2012 (COAs from 2008-2012)

Comments: “The Rotomotion SR30 is a small, economical, short endurance UA. Utilizing a helicopter platform, the SR30 houses one or two cameras in a pan/tilt camera mount. The system is designed to track objects of interest even when the helicopter nose is pointed away from the object. The SR30 can carry day zoom cameras, infrared cameras, or both simultaneously. As purchased, the aircraft is equipped with both day and infrared cameras. The aircraft is capable of fully autonomous flight with auto-takeoff and landing. Manual control is provided by a 2.4 GHz safety controller.” (“North-Little-Rock-PD-2011_AIRCRAFT_SYSTEM.DOC”)

Defendant’s car was stopped for littering from the passenger side, and the passenger made a “snide” comment to the officer denying littering. The officer ordered him out of the car, and then could see a bit of a plastic bag protruding from his front pocket. That was reasonable suspicion and not probable cause. People v. Garcia, 2012 IL App (1st) 102940, 978 N.E.2d 366 (September 28, 2012):

[**P13] Nevertheless, even if Officer Romano had observed a clear knotted plastic baggie protruding from defendant’s front pants pocket, this observation may have created a reasonable suspicion justifying further investigation, but such an observation standing alone generally does not rise to the level of probable cause. See, e.g., Cauls v. Commonwealth, 683 S.E.2d 847, 852 (Va. Ct. App. 2009) (deputy’s observation of knotted and frayed end of plastic baggie protruding from defendant’s pants pocket, standing alone, not sufficient to provide probable cause under the plain-view exception because the baggie’s incriminating character was not immediately apparent).

[**P14] Suspicion is not a substitute for probable cause. See Hunter v. Bryant, 502 U.S. 224, 232 (1991) (Stevens, J., dissenting); see also People v. Symmonds, 18 Ill. App. 3d 587, 595 (1974) (“[t]he Illinois Supreme Court has said that the subjective belief of a police officer that an envelope contained in the pocket of a traffic offender contained gambling devices was an insufficient basis for a search of the envelope where it was not predicated upon other objective facts, such as something about the envelope itself or its visible contents which gave the police an indication of their illicit nature”) (citing People v. Tate, 38 Ill. 2d 184, 187 (1967))).

The officer could not reasonably conclude that the golf ball size object found in defendant’s pocket after a patdown was a weapon. Alternatively, inevitable discovery did not support search incident of the object in his domestic battery arrest because he was not arrested at the scene and state law did not permit a warrantless DV arrest away from the scene. State v. Almanzar, 2012 NMCA 111, 288 P.3d 238 (App. 2012), Certiorari Granted, November 2, 2012, No. 33,763.*

Officers knocked and were admitted to the house. Additional officers entered by consent by defendant’s girlfriend not objecting and they conducted a sweep of the downstairs to talk to additional persons. State v. Strickland, 2012 Ohio 3397, 2012 Ohio App. LEXIS 2990 (2d Dist. July 27, 2012).* [Two officers in the house and two more called in, and the second wave is consent by not objecting? This isn’t acceding to a claim of lawful authority? I can see this one going down another way for the state, but this resolution is just wrong on consent.]

Defendant Somali alleged pirate’s Franks claim based on omission of exculpatory facts about his intent to aid the other pirates fails. Probable cause was shown with exculpatory facts, and his mens rea is fact for trial. United States v. Ali, 870 F. Supp. 2d 10 (D. D.C. 2012):

Ali’s primary challenge to the sufficiency of the affidavits is born of the fact that he maintains a view of his role on the CEC Future that is completely at odds with the government’s characterization of the evidence. Ali’s chief defense at trial will be that he intended neither to conspire with, nor to aid and abet, the pirates. The government, on the other hand, argues that Ali had the requisite intent. The jury will make the ultimate determination of Ali’s mens rea. But, in his motion to suppress, Ali presses a related argument. He claims that the affidavits underlying certain warrants omitted facts which he alleges show his innocent intent, and that these omissions entitle him to a Franks hearing.

In so arguing, however, Ali has confused the showing required of an affidavit—for probable cause—with that required of the government to prove his guilt. “[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Gates, 462 U.S. at 245 n.13; see Jones, 362 U.S. at 270 (the “‘difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search'” is “‘large'” (quoting Brinegar v. United States, 338 U.S. 160, 172 (1949))). And “‘[o]nce it is established that probable cause exists to believe a federal crime has been committed a warrant may issue for the search of any property which the magistrate has probable cause to believe may be the place of concealment of evidence of the crime.'” Zurcher v. Stanford Daily, 436 U.S. 547, 558 (1978) (alteration in the original) (quoting United States v. Mfrs. Nat’l Bank of Detroit, 536 F.2d 699, 703 (6th Cir. 1976)).

While Ali maintains that his own involvement in the piracy of the CEC Future was not criminal, he does not contest that what occurred was a crime. Therefore, the only question is whether there was a “fair probability that contraband or evidence of [that] crime [would] be found in” the warrants’ targets. Gates, 462 U.S. at 238; see Zurcher, 436 U.S. at 558; Mays, 134 F.3d at 814 (“[S]earch warrants are directed, not at persons, but at property where there is probable cause to believe that … evidence of a crime will be found.”). On these facts, Ali’s intent was not relevant to the magistrates’ determinations of probable cause.

The stop was justified, but the nature of the questioning wasn’t. The facts show that this was always pursued as a drug investigation and not a traffic stop. United States v. Santiago, 869 F. Supp. 2d 707 (E.D. Va. 2012):

The defendants in this case have moved to suppress evidence seized from their rental car. This case is another in a series of incidents in which police officers stop drivers, ostensibly for routine traffic offenses, and drag out the stop until they have probable cause to search the drivers’ vehicles. [citations omitted] Here, the officer measurably lengthened the stop and expanded the scope of his investigation without reasonable suspicion, thereby violating the defendants’ Fourth Amendment rights. For that reason, the Court will suppress the evidence.

. . .

The heart of this case, however, concerns the second prong of the Terry test—that the seizure must be sufficiently limited in scope and duration. With regard to scope, “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Royer, 460 U.S. at 500; Guijon-Ortiz, 660 F.3d at 764. In terms of duration, the reasonable time for a traffic stop “cannot be stated with mathematical precision,” Branch, 537 F.3d at 336, but a stop may become “unlawful if it is prolonged beyond the time reasonably required to complete [its] mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). “If a police officer seeks to prolong a traffic stop to allow for investigation into a matter outside the scope of the initial stop, he must possess reasonable suspicion or receive the driver’s consent.” Digiovanni, 650 F.3d at 507 (citing Branch, 537 F.3d at 336).

. . .

Turning to the traffic stop in this case, the Court finds that Trooper Homiak pursued his mission as a member of the interdiction team. It is not surprising, then, that he failed to diligently pursue the purposes of the stop and embarked on a sustained course of investigation into the presence of drugs in the car that constituted the bulk of the encounter between the officer and defendants. See Digiovanni, 650 F.3d at 509. At the outset, Homiak stayed with the approved script for a routine traffic stop, asking for a license and registration, then inquiring who owned the car before receiving the rental agreement. See Branch, 537 F.3d at 337; Foreman, 369 F.3d at 781. He then informed the defendants of the reason for the encounter—their 82 mph speed. Just over two minutes into the stop, however, Trooper Homiak embarked on a sustained investigation of the defendants’ travel history, plans, and purpose.

The officer’s subsequent actions “bespeak an utter lack of diligence.” Digiovanni, 650 F.3d at 510. Homiak’s questions concerning the defendants’ flight from Puerto Rico, where they were going, how long they were staying, and their purpose for the trip were unrelated to the reason for the traffic stop. This line of questioning continued with Santiago in his patrol car, where Homiak claimed to have been diligently completing the necessary paperwork. …

I’ve seen plenty of videos of stops that were similar but never good enough to suppress. This was clearly over the line.

NYPD’s policy of giving a breath test to officers involved in shooting incidents is reasonable under the “special needs” doctrine. Palladino v. City of New York, 870 F. Supp. 2d 350 (S.D. N.Y. 2012) (prior history: preliminary injunction denied, Palladino v. The City of New York, 07 CV 9246 (S.D.N. Y. Sep. 30, 2008), aff’d Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009), cert, denied, 131 S. Ct. 415 (2010)):

Plaintiffs argue that the breathalyzer test is unreasonable in light of the emotional trauma NYPD officers might experience after discharging their weapons. NYPD officers are without question a category of the bravest and finest public servants, and often must face the consequences of difficult and even potentially life-threatening situations. But the breathalyzer test—even with its immediate post-shooting application—is not an unreasonably traumatic intrusion when viewed in the context of the thorough post-shooting investigation protocol already in place. Officers understand that there will be an administrative investigation into each instance in which they must discharge their firearms. Officers also understand that they will be subject to a five minute breathalyzer test every time they discharge their weapons and someone is injured as a result. It is a brief, mandatory process. The breathalyzer test is uniformly conducted and is neither arbitrary nor oppressive. The test is conducted immediately to quickly lift the cloud of any suspicion that an officer has acted improperly.

The final balancing factor of the special needs test requires the Court to consider “the nature and immediacy of the government’s needs” and “the efficacy of its policy in addressing those needs.” Cassidy, 471 F.3d at 75. As the Second Circuit articulated in Lynch, “the NYPD’s regulations involving alcohol and firearms are vital to public safety, and the NYPD has a substantial interest in detecting and disciplining officers who violate these policies… [and] in deterring its officers from using their firearms while intoxicated.” 589 F.3d at 104. The NYPD has a very practical and important interest in managing its personnel and ensuring that officers comply with the Patrolman’s Guide regulations concerning officer fitness for duty. Officers are prohibited from possessing a firearm if they are overly intoxicated. The breathalyzer test deters officers from violating this important rule, and serves to identify those officers who do discharge their weapons while under the influence of alcohol. Accordingly, IO 52 is narrowly tailored to accomplish the NYPD’s goals of ensuring compliance with its policies regarding personnel management. See id. (“By quickly and unequivocally determining whether alcohol was involved in an NYPD officer’s use of his or her firearm, the breathalyzer policy will assist the NYPD in disciplining officers who use their firearms while intoxicated and will provide an incentive to officers to stow their firearms before drinking alcohol”).

Under Von Raab and Skinner, this really was not even a close question.

In a murder case, the police justified a search warrant for computers and computer records, and the police seized a written journal, too. The seizure of the written journal was outside the terms of the warrant, and it could not be justified by the plain view doctrine. It ultimately was found, however, to be harmless beyond a reasonable doubt. While there was evidence of motive in there, the defendant used other parts of the journal in defense to show that there was not motive. State v. Wangler, 2012 Ohio 4878, 2012 Ohio App. LEXIS 4267 (3d Dist. October 22, 2012).

Every circuit to have considered private actors under Monell has concluded that they are not governed by it. In Las Vegas, however, the symbiotic relationship between casino security and LVMPD for a summons in lieu of arrest of “trespassed” professional gamblers was state action. Here, plaintiff was ejected five times before this one, and the claim against the casino under § 1983 fails. Tsao v. Desert Palace, 698 F.3d 1128 (9th Cir. 2012).*

PoliceOne:com: Video: Women file suit over ‘painful’ roadside cavity search | Officers stated the women were acting strange and suspected marijuana was involved by Eric Nicholson, The Dallas Observer

DALLAS, Texas — On July 13, Angel Dobbs was driving her boyfriend’s car north down the George Bush Turnpike when they were pulled over by state troopers. The troopers said they had spotted Dobbs throw a cigarette butt out the window.

According to a lawsuit filed by the Dobbs yesterday in federal court, the traffic stop soon took a different turn. One of the troopers, David Ferrell, took Angel Dobbs to a roadside field, where he peppered her with questions that quickly transitioned from general queries about where the pair was headed and to more pointed questions about whether they were transporting marijuana. He did the same with Ashley Dobbs. Both denied having any weed.

. . .

According to the lawsuit, Hellson’s gloved hands went inside Dobbs’ sweatpants and probed both front and back. Dobbs suffers from a skin condition called hidradenitis suppurativa that made the whole thing particularly painful. Without changing her gloves, Hellson performed an identical search on Ashley Dobbs, the suit claims.

When Angel Dobbs told Farrell she felt violated by the search, which had happened on a public roadway in full view of passersby, he told her it was justified by the odor of marijuana, which made it clear that “someone is a daily smoker in that car,” according to the suit.

I filed a suit like this about 20 years ago in Arkansas involving a male strip searched on the side of a U.S. highway. The answer was a reasonable offer of judgment.

Defendant was stopped because the color of the vehicle did not match the DMV record, which turned out to be erroneous. This was chargeable to the state, and the good faith exception did not apply. State v. Bromm, 20 Neb. App. 76, 819 N.W.2d 231 (2012).*

The officer was uncontradicted, and the evidence supports the trial court’s conclusion there was reasonable suspicion for the stop. Cocaine was found in defendant’s mouth during the stop. State v. Harris, 98 So. 3d 903 (La. App. 4 Cir. 2012).*

“[A]t the time S made the investigatory stop of the defendant, he had a reasonable suspicion that the defendant had just committed the burglary reported by police dispatch, and the totality of the circumstances, including the defendant’s lone presence, close in temporal and physical proximity to the scene of the burglary and his behavior and demeanor immediately before S stopped him, supported the court’s finding of reasonable suspicion to stop the defendant, and because this court determined that S’s stop of the defendant was not unlawful, it was not necessary to address the issue of whether it tainted the defendant’s consent to the search of his car.” (Syllabus) State v. Miller, 2012 Conn. App. LEXIS 383 (August 14, 2012).*

The government put a pole camera on a pole on defendant’s property but the pole was on an easement belonging to the utility company, and this was not a Jones trespass. United States v. Nowka, 2012 U.S. Dist. LEXIS 178025 (N.D. Ala. December 17, 2012)*:

The 50-foot right-of-way was dedicated, without restriction or reservation, to the public. Thus, although the use of the utility pole for surveillance purposes, as opposed to for the provision of utilities, is a change in kind that might support a theory of trespass if the dedication had been only for utilities, those simply are not the facts of this case. As the utility pole was on a publicly-dedicated space, and as the use of the pole was not shown to have been subject to any restriction, Nowka has failed to show any constitutional violation under his trespass theory.

Officers knew that a drug deal was going down with a guy named “D” in the vehicle. They didn’t need a name to have probable cause. United States v. Williams, 2012 U.S. Dist. LEXIS 177894 (D. Vt. December 17, 2012).*

Paragould.com: Armed task force to patrol streets / Police chief says citizens could be subject to ID checks by Ryan Saylor:

In response to a recent increase in crime, Paragould Mayor Mike Gaskill and Police Chief Todd Stovall offered residents at a town hall meeting Thursday night at West View Baptist Church what could be considered an extreme solution — armed officers patrolling the streets on foot.

Stovall told the group of almost 40 residents that beginning in 2013, the department would deploy a new street crimes unit to high crime areas on foot to take back the streets.

“[Police are] going to be in SWAT gear and have AR-15s around their neck,” Stovall said. “If you’re out walking, we’re going to stop you, ask why you’re out walking, check for your ID.”

Stovall said while some people may be offended by the actions of his department, they should not be.

“We’re going to do it to everybody,” he said. “Criminals don’t like being talked to.”

The police chief is a fool who is obviously so untrained in the Fourth Amendment he has no qualified immunity. See Malley v. Briggs, 475 U.S. 335, 341 (1986): “As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”

See also ArkansasTimes Blog late Tuesday.

Update: Clarification from the Paragould P.D.

Defendant was stopped at a driver’s license check roadblock which found him DWI, and he was indicted as an habitual DWI offender. The state proved a compelling state interest in setting up this DL roadblock because nearly 14% of all fatal crashes in the state involved drivers with no valid DL. State v. Monk, 2012 Tenn. Crim. App. LEXIS 1022 (December 12, 2012):

The Hicks Court held that the “presence of a sufficiently compelling interest is necessary under Article I, section 7 before an examination of the other aspects of a roadblock may proceed.” Hicks, 55 S.W.3d at 527. As we earlier noted, the State may not merely rely on its general interest in maintaining highway safety. Id. at 530. It must produce “some proof of the need to curb a substantial and imminent threat to the safety of motorists on public roads distinctly resulting from the conduct of unlicensed drivers.”

The State provided statistics indicating that 13.9% of all fatal crashes statewide in 2008 involved drivers with revoked licenses, suspended licenses, or no license. Additional statistics revealed that 25.8% of the drivers involved in accidents between 2005 and 2009 in Sullivan County were charged with driver’s license related charges. The Defendant complains that the State did not break down the charges to categories indicating if the driver was cited for driving on a revoked license, driving on a suspended license, or, as is the case here, driving after being declared a Habitual Motor Vehicle Offender. We do not think this distinction undermines the proof that approximately one fourth of the accidents in Sullivan County involved unlicensed drivers. The State has provided statistics in support of its contention that the roadblock is related to maintaining highway safety. These statistics provide individualized suspicion and support the conclusion that unlicensed drivers are an imminent threat to the safety of motorists on the public roads in Tennessee and, specifically, in Sullivan County. We conclude that the record does not preponderate against the trial court’s finding that the State demonstrated a sufficiently grave public concern.

Defendant was driving a friend’s car police stopped, and there was no insurance card in the car. The officer said he was going to inventory the car, and he wouldn’t let the defendant take a backpack from the car. That made the inventory discretionary and unreasonable as to the backpack. State v. Dimmick, 248 Ore. App. 167, 273 P.3d 212 (2012):

Here, the city’s impoundment ordinance authorized Lundry to seize the vehicle defendant was driving. However, the impoundment policy does not address Lundry’s authority to seize portable closed containers located within the vehicle at the time it was stopped. Nor does the policy specify that items present in the vehicle at the time it was stopped must be inventoried. Rather, Lundry was left to exercise his discretion to determine whether the backpack should have been seized as part of the impoundment of the vehicle. Yet, an essential purpose of the limitation on police inventories is to require the police to conduct the inventory “pursuant to a properly authorized administrative program, designed and systematically administered so that the inventory involves no exercise of discretion by the law enforcement person directing or taking the inventory.” Atkinson, 298 Or at 10. Because Lundry’s seizure of the backpack was an exercise of discretion to deviate from the express authority granted by the city’s impound and inventory ordinances, the seizure of the backpack was invalid.

Further, as we stated in Sparks, “inventorying” the contents of a closed container that a vehicle’s occupant removes from a vehicle serves none of the purposes justifying the inventory exception to the warrant requirement. Rather, the purposes put forward to justify that policy–protecting the vehicle owner’s property while the vehicle is in police custody, reducing the likelihood of false theft claims against the police, and “in the occasional case,” protecting the police and others from danger if there is a “concrete basis in specific circumstances” to believe that danger exists–would be served by encouraging occupants to remove small containers. Sparks, 228 Or App at 167 (quoting Atkinson, 298 Or at 7-8) (emphasis in original).

For those reasons, the seizure of the backpack was not justified by the impoundment of defendant’s vehicle. Nor did the state provide any other lawful basis for the seizure and consequent search.

The search of defendant’s car was not based on officer safety; it was a de facto search incident without probable cause under the guise of officer safety, and the motion to suppress is granted. A search of a closed container was unreasonable. United States v. Morgan, 2012 U.S. Dist. LEXIS 175192 (D. Neb. December 11, 2012):

By his own admission, Officer Normandin searched the vehicle immediately after removing the occupants from the car. Importantly, this case does not involve a traffic stop, where the violation of a traffic law would support a suspicion of criminal activity. The defendant was sitting with two other people in the well-lit parking lot of an open business. Although it was 12:45 a.m., the late hour alone and the fact that people were in a car does not automatically signal an inherently dangerous situation. Any suspicion of illegal activity prompted by the occupants’ behavior in ducking down and reaching under the seat would have been explained by the officers’ observation of open containers in the vehicle. The officers herein did not conduct a limited Terry-type inquiry in order to confirm or dispel their suspicions; they proceeded to immediately search the vehicle as if the search were “a police entitlement,” rather than an exception justified by the twin rationales of officer safety and evidence preservation.

Moreover, the officers’ conduct with respect to the closed container found in the search of the vehicle requires a separate analysis. The government has not argued or shown that the detention of the box was so minimally invasive that strong countervailing governmental interests justified a seizure based on specific articulable facts that the lockbox contained contraband or evidence of a crime. The court finds the removal of the lockbox from the car was a meaningful interference with the defendant’s possessory interests and finds the lockbox was seized when it was removed from the vehicle. The later investigative procedure—opening the box—was a search itself requiring probable cause, so the initial seizure cannot be justified on less than probable cause.

The officers did not have probable cause to believe that the vehicle contained contraband or other evidence of a crime to support the seizure and subsequent search of the lockbox found under the seat of the defendant’s car. Officer Normandin explicitly disavowed any suspicion of drug trafficking. He stated that his only concern was officer safety. …

Defendant was not prejudiced by defense counsel’s failure to move to suppress his girlfriend’s written consent. He was removed from the premises on arrest, and the police had no duty under Randolph to seek consent from him. United States v. Swain, 2012 U.S. Dist. LEXIS 177193 (D. S.C. December 14, 2012). [Yes, the police can wait for their suspect to leave and then seek consent from somebody with apparent authority.]

The officer stopped defendants walking on the street because they matched the description of two men who robbed a cell phone store. His lights were on and he commanded them to stop and show their hands with his hand on his gun. That was a seizure, and it was with reasonable suspicion. United States v. Brown, 2012 U.S. Dist. LEXIS 176658 (D. Mass. December 12, 2012).*

Defendant consented to a time-limited search of his cell phone. He was asked for consent, and he said he would except that he wanted the phone back that day so he could use it as an alarm clock the next morning. When asked for clarification, he reaffirmed. The search was by consent. United States v. Weisinger, 2012 U.S. Dist. LEXIS 177129 (D. Vt. December 11, 2012).*

Search warrant for e-mail was overbroad because non-searchable information was subject to search, too. Nevertheless, it was done in good faith so there is no suppression. United States v. Roy, 2012 U.S. Dist. LEXIS 177674 (C.D. Cal. December 13, 2012):

Defendant also moves to suppress the e-mail search warrant in this case, arguing that the search and seizure was unreasonable because the warrant was a general warrant and overbroad in scope. Few cases in the Ninth Circuit or elsewhere have addressed the standard of particularity that should be applied with respect to an e-mail search warrant. The cases that have addressed the issue, however, have held that the burden remains on the government to prove how the warrant application will segregate information regarding third parties from information relating to the defendant.

In this case, the Court holds that the government has not met its burden of setting forth the items to be seized with particularity. The information sought by the warrant lacks protocol that would affirmatively segregate the target information from information outside the scope of the warrant. The warrant is therefore overbroad.

The inquiry does not end there, however. Where the police did not act in bad faith, and as such, suppression of the evidence would not deter police misconduct, the district court, may, in its discretion, admit the evidence over the objection of the defendant. Illinois v. Gates, 462 U.S. 213 (1983). In fact, exclusion of the evidence is a last resort. Hudson v. Michigan, 547 U.S. 586 (2006).

In this case, the court finds that exclusion of the evidence would not be warranted. The seizure was reasonably conducted, and the evidence of criminal activity was properly seized. In executing the warrant, the investigating agents aptly followed the contours of the warrant. Consequently, the underlying justification for the exclusionary rule would not be served by excluding the e-mails, and accordingly, the Court denies defendant’s motion to suppress.

NPR: Teenager’s Faith At Odds With Locator Tags In School IDs by Wade Goodwyn:

A federal court in Texas on Monday will take up the case of a high-school student who refuses to wear her location-tracking school ID.

The 15-year-old sophomore says the ID badge, which has an embedded radio frequency identification tag, is a violation of her rights. The student, Andrea Hernandez, believes the ID is “the mark of the beast” from the Book of Revelation.

ABAJ: Kagan Sees Privacy as One of Most Important Future Issues for Court by Debra Cassens Weiss:

Justice Elena Kagan highlighted a future important issue for the U.S. Supreme Court and reflected on a past high-profile remark in a speech on Thursday evening.

Kagan said privacy in a changing world is a big issue likely to come before the court, Politico reports. She spoke in a question and answer session at a Washington, D.C., synagogue.

Kagan said former Justice Louis Brandeis was aware of the importance of the issue, according to the Politico account. He “understood how new technologies interfere with privacy, which I think will be one of the most important issues before the court in the decades to come,” Kagan said.

In the dashcam video, defendant consented to a search of his vehicle without even being asked, and it was voluntary. United States v. McGowan, 2012 U.S. Dist. LEXIS 177630 (N.D. Ala. October 30, 2012).*

The stop of the vehicle was with probable cause, and the officer developed reasonable suspicion that defendant was not legally in the country. The stop was not overlong and was reasonable. United States v. Munoz, 2012 U.S. Dist. LEXIS 177633 (D. S.D. October 10, 2012).*

An officer unexpectedly ran into defendant and asked defendant whether he had a gun. It was not in an accusatory tone, and defendant fled. He was not seized at the point the question was asked. United States v. Sanchez, 2012 U.S. Dist. LEXIS 177623 (D. Mass. December 14, 2012).*