Trial court erred in not applying the totality of circumstances standard to the conduct of the police during the search. Officers knocked at the door and got no answer, so they pushed the door open and saw a lit candle, so they entered to blow it out, seeing contraband. Remanded per curiam. State v. Washington, 2012 La. LEXIS 3083 (November 16, 2012)*:

The Louisiana and Federal constitutions prohibit unreasonable searches and seizures. State v. Lee, 05-2098, p. 14 (La. 1/16/08), 976 So.2d 109, 122; see U.S. Const. amend. IV and La. Const. art. I, § 5. Therefore, the pivotal question in this case is whether the police officers acted reasonably in the following series of events: 1) entering the front yard of a residence with an open front door and standing at the door; 2) announcing their presence and asking if anyone was inside; 3) hearing no response to their announcement, further pushing the door open; 4) viewing lit candles inside; 5) then entering the residence to extinguish the candles to prevent a fire; and 6) seizing contraband the officers viewed while extinguishing the candles. Given only these facts, we might well have found the third action by police of further pushing the door open unreasonable. See Lee, 05-2098 at 14-15, 976 So.2d at 122 (“Warrants … are generally required to search an individual’s home or person, ‘unless “the exigencies of the situation” make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.'”). However, as found by the district court, these were not the only facts and circumstances prompting the officers to push the door open further. The district court erred in not considering the totality of the circumstances when ruling on the defendant’s motion to suppress drug evidence seized from the residence at the end of the above-described series of events. See State v. Bush, 12-0720, p. 1 (La. 6/1/12), 90 So.3d 395, 396 (describing the standard on motion to suppress for admissibility of evidence seized without a warrant as a “totality of the circumstances” test).

The Tennessee Department of Labor came to Publix Super Markets in Chattanooga for a random surprise inspection and demanded access to personnel files of minors. Access was required under state law. The employer store refused demanding an administrative warrant. The grocery store was not a pervasively regulated business, and the state could not demand production without consent or an administrative warrant. Assessment of penalty reversed. Publix Super Mkts. v. Tenn. Dep’t of Labor & Workforce Dev., 2012 Tenn. App. LEXIS 799 (November 16, 2012):

… On appeal, the employer contends it maintained the records on site as required, thus it did not violate Subsection (1) of the statute. The employer also asserts that it has a Fourth Amendment right to object to a warrantless search by the Department and it may not be penalized for asserting its constitutional right. We have determined the Department’s decision to assess penalties for violating Subsection (1) of Tennessee Code Annotated § 50-5-111 is not supported by substantial and material evidence and the inference drawn by the Department that the records were not maintained on site based upon a mere inference drawn from the fact they were not produced within one hour of demand is insufficient. Therefore, the assessments for allegedly failing to maintain personnel records of minor employees on site is reversed. As for the requirement under Subsection (4) of Tennessee Code Annotated § 50-5-111 that employers of minor employees furnish and allow inspection of the separate and independent file records for each minor employed upon request by the Department, the Act expressly provides that if the Department is denied permission to make an inspection, Tennessee Code Annotated § 50-4-101 provides that the Department employee or official may obtain an administrative inspection warrant in accordance with the procedures outlined in the statute; the Department did not seek to obtain a warrant in this case. As for refusing the Department’s request to inspect the records without an administrative warrant, in order for a warrantless search or inspection to be constitutionally permissible under the Fourth Amendment, the Department must establish that the employer was part of a pervasively regulated industry or that the employer had weakened or reduced privacy expectations that are significantly overshadowed by the Department’s interests in regulating the employer’s industry. We have determined the Department failed to establish either; accordingly, the Department cannot assess a penalty against an employer for asserting its constitutional rights under the Fourth Amendment. Thus, the penalty assessed for allegedly violating Subsection (4) of the statute is reversed. Pursuant to the foregoing, we remand with instructions for the trial court to order the Department to vacate the citations and penalties against the employer.

That the snitch broke off an “appreciation piece” from the crack to give to a drug runner when the drugs changed hands is not a Fourth Amendment issue. It isn’t even government action. United States v. Lewis, 2012 U.S. Dist. LEXIS 164723 (N.D. Ind. November 19, 2012).*

Defendant fled from where he was sitting when he saw a police officer, and he ran leaving things behind including a cell phone and marijuana. This was an abandonment. People v. Crooke, 2012 V.I. LEXIS 60 (Super.Ct. November 14, 2012).*

Defendant was stopped for crossing the fog line, and he blamed it on the police officer following him, which the court doesn’t believe. United States v. Salas, 2012 U.S. Dist. LEXIS 165008 (E.D. Cal. November 1, 2012).*

Defendant used the Moocherhunter™ software to cause his computer to use another person’s wireless router. Following the rationale of the pen register case (Smith), the court finds that the defendant did not have a reasonable expectation of privacy in a wireless signal sent to a computer outside his own home to procure child pornography off the internet. United States v. Stanley, 2012 U.S. Dist. LEXIS 162317 (W.D. Pa. November 14, 2012):

5. Here, the issue is whether a search occurred when Erdely used Moocherhunter™ to follow the wireless signal being sent from and to the computer identified by the 95 MAC address in order to connect to Kozikowski’s wireless router. More specifically, the court must determine whether Stanley had a legitimate expectation of privacy in the wireless signal he caused to emanate from the computer in his home to Kozikowski’s wireless router and the wireless signal he received back from Kozikowski’s wireless router in order to connect to the internet.

. . .

11. Based upon Smith’s rationale, the court finds Stanley did not have a legitimate expectation of privacy in the wireless signal he caused to emanate from his computer to the Kozikowski wireless router or in the signal being sent from the router back to his computer, and therefore, Erdely’s use of Moocherhunter™ did not constitute a search in violation of the Fourth Amendment. In Smith, the pen register was used to record the telephone numbers people voluntarily dialed and thus, conveyed, to the telephone company by monitoring electrical impulses caused when the dial on the telephone was released. Here, Moocherhunter™ monitored the strength of a signal that Stanley voluntarily caused to send from his computer to Kozikowski’s wireless router and to receive a signal back from the wireless router in order to gain unauthorized access to Kozikowski’s internet connection. In both cases, the party seeking suppression of evidence assumed the risk that information disclosed to a third party may be turned over to the police. Notably, Moocherhunter™, like the pen register, did not reveal the contents of the communications; it only revealed that communications were taking place.

12. The court finds that Stanley did not have a reasonable expectation of privacy in the wireless signal he caused to emanate from his computer to Kozikowski’s wireless router or the wireless signal he received from Kozikowski’s wireless router in order to connect to the internet. The information logged on that wireless router was accessible to Kozikowski and through his consent, to Erdely. This information showed the private IP address of Stanley’s computer. Stanley, therefore, could have no reasonable expectation of privacy in the signal he was sending to or receiving from Kozikowski’s wireless router in order to connect to the internet. An internet subscriber does not have a reasonable expectation of privacy in his IP address or the information he provides to his Internet Service Provider, such as Comcast, in order to legally establish an internet connection, and likewise, a person connecting to another person’s wireless router does not have an expectation of privacy in that connection, i.e. the private IP address, when it is available to that third person and anyone with whom that person shares the information.

See Who’s Stealing Your Wireless Signal by Derek Gerry on Life123.com.

Update: See Volokh by Orin Kerr.

Citizen Media Law Center: Another Go-Round with Recording the Police in Massachusetts by Jeffrey P. Hermes:

Last Thursday, according to the Shrewsbury Daily Voice, Irving Espinosa-Rodrigue was arraigned in Westborough District Court for making a recording of a police officer in violation of Massachusetts’ wiretap law, M.G.L. c. 272, § 99. The audio/video recording was allegedly made secretly during a traffic stop by a female passenger in Espinosa-Rodrigue’s car at his direction, and later uploaded to YouTube.

But wait a minute — didn’t we already deal with this issue in Massachusetts? Didn’t the U.S. Court of Appeals for the First Circuit, the federal appeals court with jurisdiction over Massachusetts, pretty clearly state in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that there’s a First Amendment right to record the activities of the police in public?

McClatchy: Commentary: Welfare drug testing and the Fourth Amendment by Linda P. Campbell | The Fort Worth Star-Telegram:

Texas Gov. Rick Perry and Lt. Gov. David Dewhurst probably wouldn’t admit it, but they want to engage in social engineering. They want people not to waste money on drugs, liquor, smokes or lottery tickets. Not everybody, mind you, but poor people.

That’s because poor people can get taxpayer dollars to help feed their kids or tide their families over when they lose a job — and we can’t have them spending that money on things the rest of us disapprove of. …

But the method of choice put forward by Perry, Dewhurst, Sen. Jane Nelson of Flower Mound and other Republicans is to drug-test people applying for public benefits such as Temporary Assistance for Needy Families and unemployment assistance. As though drug use is the main reason people with kids are poor or have been thrown out of work.

A school security officer, a local police officer working on a contract basis, started to handcuff the student when he stopped a fight about to start when the student pulled away. He wasn’t acting as a law enforcement officer, so the crime of resisting a law enforcement officer “cannot stand.” K.W. v. State, 976 N.E.2d 61 (Ind. App. 2012)*:

In the context of searches and seizures in a school setting, our courts have recognized a clear distinction between a search and seizure for the purpose of furthering “educationally related goals” and for the purpose of a criminal investigation. …

We conclude that the factors which distinguish between law enforcement officers investigating crimes and those serving as school security officers promoting a safe school environment, as set out in Myers, T.S., and C.D., apply here. Officer Smith testified that, as a liaison officer for Ben Davis High School, his duties included serving “as security for all staff [and] students, and enforc[ing] some dress code policies and all other rules and procedures.” Transcript at 2. On August 30, 2011, Officer Smith had observed K.W. and another student “facing off” in the hallway before a teacher intervened. Id. As Officer Smith approached K.W., he asked K.W. to turn around, and he “handcuffed him for his safety[.]” Transcript at 3. Officer Smith further testified that that was “a normal procedure [he] normally do[es]” in such a situation “so neither student would attempt to strike the other one[.]” Id. at 3, 6.

The trial court improperly considered hearsay affidavits offered by the defense from witnesses not called at the suppression hearing that the officers were incorrect in how the search went down. State v. Crofoot, 97 So. 3d 866 (Fla. 1st DCA 2012).

Police came to a DV call and found a naked bloody, beaten and shaking woman covered with only a blanket. She said her assailant wasn’t there, but they didn’t believe her and came in. They found defendant in the closet and arrested him. The entry was valid under the emergency aid exception of Gallmeyer v. State, 640 P.2d 837, 841 (Alaska App. 1982), because there might have been other victims or it could happen again when they leave. Ahvakana v. State, 2012 Alas. App. LEXIS 125 (August 17, 2012).

NYT: Judge Bars Testimony by Expert in Frisk Suit by Russ Buettner:

Mayor Michael R. Bloomberg has repeatedly said that the small number of guns found by police officers during stop-and-frisk encounters shows that the program is working as a deterrent, and not that the police are exercising poor judgment in deciding whom to stop, as critics have argued.

But a federal judge said on Friday said that the city had “no evidence” to make the deterrence claim, and called the argument “too speculative” to be admitted in court by New York City’s expert witness in a class-action lawsuit challenging the constitutionality of the city’s use of stop-and-frisk tactics.

The city’s expert appeared to be trying “to justify stops on the basis of their deterrent impact, regardless of their legality,” Judge Shira A. Scheindlin of Federal District Court in Manhattan wrote.

It’s a Daubert challenge. Floyd v. City of New York, 08 Civ. 1034 (SAS) (S.D.N.Y. August 17, 2012), at 14-15:

Plaintiffs argue that “Smith’s crime reduction opinions” should be excluded because they “are irrelevant to the questions posed by Plaintiffs’ Fourth and Fourteenth Amendment claims: (1) Do NYPD officers conduct stops-and-frisks without reasonable suspicion?; (2) Do they stop civilians on the basis of their race?” Defendants respond by arguing that Smith’s opinion on the crime deterrent effects of these programs “are indeed relevant, as they represent alternative, race-neutral explanations for the racial patterns in [stops and frisks] which Fagan failed to consider in his analysis of the data” and that “[e]xcluding Smith’s opinions would be highly prejudicial by forcing the jury to accept Fagan’s word unchallenged … when such strong evidence of methodological problems exists.”

Defendants are conflating two different aspects of Smith’s report: his benchmarking critique and his separate conclusion that the NYPD’s programs are a proven strategy to combat crime and increase safety, particularly in minority neighborhoods. As I explained above, Smith’s benchmarking critique challenges Fagan’s finding that Blacks and Hispanics are stopped at disproportionately higher rates; it is a descriptive claim about the nature of racial disparities that is probative of the truth or falsity of plaintiffs’ Fourteenth Amendment claim, and it is therefore admissible.

However, Smith’s opinions about the deterrence and crime reduction impacts of the NYPD’s programs are inadmissible. Defendants argue that “Smith’s opinion that increased [stop and frisk] activity reduces neighborhood crime provides further evidence for his alternative hypothesis that [stops and frisks] are driven by where the crime occurs rather than by racial discrimination.” …

Floyd v. City of New York, 283 F.R.D. 153 (S.D. N.Y. May 16, 2012), granted in part, denied in part, 2012 U.S. Dist. LEXIS 116540 (S.D.N.Y. Aug. 17, 2012). See also Floyd v. City of New York, 861 F. Supp. 2d 274 (S.D. N.Y. 2012), Class certification granted 2012 U.S. Dist. LEXIS 68676 (S.D.N.Y., May 16, 2012).

An officer lawfully in a house shining a flashlight into a bedroom saw a shiny object on a night stand. Suspecting it was a gun, he retrieved it. The gun was in plain view. United States v. Simmons, 861 F. Supp. 2d 307 (S.D. N.Y. 2012).

Failing to object to a search as it takes place is implied consent. United States v. Simmons, 2012 U.S. Dist. LEXIS 54360 (E.D. Mo. April 4, 2012).* [Note: Can’t agree with this because most people are afraid or unwilling to speak at the time of a search. They are submitting to authority, and the police know it.]

The tipster here was a suspicious person, and the officer getting it clearly did not trust the tipster and called a supervisor for advice after getting the tip a second time. In total, the tipster could not be relied upon for reasonable suspicion. United States v. Melendez, 2012 U.S. Dist. LEXIS 53663 (S.D. Fla. March 30, 2012).*

Florida once required the LPN of vehicles paid with large denomination bills at toll booths, and the motorist wasn’t released until the number was recorded. This was not a Fourth Amendment seizure. That procedure has since been discontinued. Chandler v. Sec’y of the Fla. DOT, 695 F.3d 1194 (11th Cir. 2012)*:

The Chandlers’ assertions of delay in their release from the toll booth are insufficient to allege a Fourth Amendment seizure. There are no allegations in the complaint that allow us to conclude that the Chandlers were “forced” to submit to the allegedly unconstitutional delay. They do not allege that they were forced to drive on the turnpike. They chose to drive on the turnpike. They do not allege that they had no notice they would have to stop at toll booths and pay tolls. In choosing to drive on a toll road, they implicitly consented to stopping at toll booths (which stops they concede are not unconstitutional detentions) and paying tolls to enjoy the privilege of using the toll road.

The Chandlers have not alleged that they were forced to pay their tolls with large-denomination bills, thereby subjecting themselves to whatever delay was caused by completion of the Bill Detection Report. They chose to pay their toll with large-denomination bills. Nor have they alleged that they asked to withdraw the large report-triggering bill in favor of a smaller delay-free bill and were denied that opportunity.

Ultimately, the Chandlers merely allege that their choice to pay their toll with a large-denomination bill occasioned an unspecified delay in their ability to proceed through the toll booth. The delay was caused by the toll booth operator’s completion of the Bill Detection Report. The claim that this delay is an unconstitutional detention is predicated upon the Chandlers’ assumption that they have an absolute right to immediately proceed through the toll booth upon tendering the toll in any denomination. This assumption is unfounded.

There was no reasonable suspicion for detaining defendant who was on a parking lot in a BMW at night with a door open in a supposedly high crime area. There was no indication that it was a high crime area, and defendant was doing nothing wrong. The state’s alternative argument that the stop was justified under the community caretaking function fails, too, because there is no indication that the defendant was in distress needing help. The fact it was possible he might be in distress isn’t enough. Hernandez v. State, 376 S.W.3d 863 (Tex. App. – Ft. Worth 2012).

As a “mere passenger,” defendant had no standing in the car he was in. United States v. Allman, 2012 U.S. Dist. LEXIS 108803 (D. S.D. August 3, 2012),* R&R 2012 U.S. Dist. LEXIS 108817 (D. S.D. June 29, 2012).*

The evidence does not support the state’s contention that a warrantless search of the defendant’s house was required because of exigent circumstances. The timeline shows no exigency because the officers had reports of marijuana plants in the house for days and confirmed the day of the search. State v. Gagnon, 2012 ND 198, 821 N.W.2d 373 (September 25, 2012):

[*P14] The timeline of events in this case does not support the conclusion a warrantless search was necessary to avoid imminent destruction of evidence. Nason observed marijuana in Gagnon’s window on May 28 and reported his observation to the BCI on May 29. When Niebuhr traveled to Douglas on June 3, marijuana plants were still in Gagnon’s window. Following Niebuhr’s initial observation, the plants remained in the window for approximately forty minutes while Niebuhr waited for additional officers. Nothing in the record indicates destruction of the plants became imminent when the additional officers arrived. To the contrary, Gagnon’s failure to remove the marijuana from the window and Yellowbird’s invitation that the officers “come in,” indicate Gagnon and Yellowbird were unaware their residence was being observed by law enforcement until Niebuhr and Huber walked in their door. Finding a warrantless search was justified under these circumstances would permit law enforcement to create an exigency by deciding to approach the residence without a warrant despite ample opportunity to obtain one. In addition, nothing in the record indicates the safety of the officers or any other person was threatened before the officers approached Gagnon’s residence. The State argues that after Niebuhr and Huber entered the residence, their safety was a concern because an unidentified person could have been inside. The presence of unidentified persons inside a residence always will be a possibility and that possibility, without more, does not create an exigency sufficient to justify a warrantless search. See United States v. Waldner, 425 F.3d 514, 517 (8th Cir. 2005) (holding a protective sweep of an office violated the Fourth Amendment when “there [was] no evidence that the officers had any articulable facts that an unknown individual might be in the office, or anywhere else in the house, ready to launch an attack”). This is especially true when any limitations on law enforcement entry would have and could have been eliminated during the ample time–here days–available to secure a warrant. Under the facts of this case, we conclude that neither the possibility of the destruction of evidence nor the need to protect officer safety were exigent circumstance justifying a warrantless search.

Computer technology being what it is, it is well known now that searches can be confined to the scope of search provided for by the warrant. Here, the computer search warrant was for evidence of passport and identity theft, and there is no reason why video files had to be rummaged through. That violated the scope of the warrant and the Fourth Amendment. The motion to reconsider prior denial of the motion to suppress is granted, as is the motion to suppress. United States v. Schlingloff, 2012 U.S. Dist. LEXIS 157272 (C.D. Ill. October 23, 2012):

By opening the “Vicky” files flagged by the KFF alert, McNamee knew or should have known that those files would be outside the scope of the warrant to search for evidence of passport fraud or identity theft, particularly as the warrant did not specifically refer to evidence found in video files. In this respect, the facts of this case are distinguishable from either United States v. Burgess, 573 F.3d 1078, 1092 (10th Cir. 2009) or United States v. Wong, 334 F.3d 821 (9th Cir. 2003), both of which are cited favorably in Mann, where the files were opened inadvertently in the normal course of the search.

Additionally, in light of the admitted ability to confine the FTK search by not enabling the KFF filter for child pornography alerts, the Court finds that Agent McNamee took an affirmative additional step to enable the KFF alerts that would identify known child pornography files as part of his search for evidence of passport fraud or identity theft. In a case where the professed subject matter sought in the search bore no resemblance to child pornography, it is difficult to construe this as anything other than a deliberate expansion of the scope of the warrant, or at the very least, an affirmative step that effectively did so.

Given the ever increasing state of technology and consequently, technology related crimes, the Court finds that this issue is not going to go away, and in fact, will likely become more prevalent and finely contoured. Digital images or files can be located nearly anywhere on a computer and “may be manipulated to hide their true contents.” 592 F.3d at 782-83, citing United States v. Hill, 459 F.3d 966, 978 (9th Cir. 2006). Accordingly, more comprehensive and systematic searches have been found to be reasonable. See United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 1006)(finding that a computer search may be as extensive as reasonably required to locate the items described in the warrant.) Nevertheless, it is also important to note that there is normally no fear of degradation or dissipation of evidence or a rapidly evolving situation requiring the need to “shoot from the hip” in examining seized computer files without a proper warrant. United States v. Seiver, 692 F.3d 774, 777 (7th Cir. 2012). In fact, Judge Posner recently noted that the doctrine of staleness has taken on new contours as a result of technological advancements and the importance of employing a “realistic understanding of modern computer technology” when evaluating Fourth Amendment challenges to computer searches. Id., at 778.

The promise of the Fourth Amendment to be free from unreasonable searches and seizures contemplates a warrant that sets forth with specificity the area to be searched and the subject matter of the search. So if a warrant authorizes an officer to look in all files on a computer, should the courts care how it is done? This Court believes so.

Defendant was subjected to a stop and frisk. A pen cap was removed from his person, and it was obvious that it was not a weapon. The officer’s further search of the pen cap was unreasonable. Officer working off-duty security at an apartment complex was acting as a police officer and the Fourth Amendment governed the search. Clanton v. State, 2012 Ind. App. LEXIS 565 (November 15, 2012):

In our view, the dispositive fact is not whether a container is open or closed, but whether the illicit nature of an item was immediately apparent to the officer or apparent only through further manipulation. See Dickerson, 508 U.S. at 379 (analogizing the plain-feel doctrine to the plain-view doctrine as limited by Arizona v. Hicks, 480 U.S. 321 (1987), which held that the moving of stereo equipment to check serial numbers was an impermissible search under the Fourth Amendment absent probable cause to suspect the equipment was stolen when “the incriminating character of the stereo equipment was not immediately apparent”).

Here, once Officer Price discovered that the sharp item in Clanton’s pocket was a pen cap, he had dispelled his suspicion that the item was a weapon. Indeed, Officer Price testified that he kept the pen cap, searched it, and seized its contents because, “upon further investigation and looking at it,” he saw a baggie hanging from the pen cap, and based on previous experiences of finding narcotics in baggies in pen caps, he suspected that this baggie contained narcotics. Tr. p. 11, 18, 47-48, 51. Officer Price also admitted numerous times that he could not tell what was inside the baggie when he first observed it hanging out of the pen cap. Id. at 18, 48. In fact, Officer Price realized that the baggie contained cocaine only upon closer examination. Id. at 11. Thus, like in Harris and Jackson where the illicit nature of the pill bottles was not immediately apparent to the investigating officers, here the contraband nature of the contents of the pen cap was not immediately apparent to Officer Price. As a result, the discovery of the cocaine violated Clanton’s right to be free from unreasonable searches under the Fourth Amendment, and the trial court erred in admitting the cocaine into evidence. Thus, Clanton’s conviction cannot stand.

Reason Science Correspondent Ronald Bailey Talks DNA Testing Without Warrants on HuffPost Live

Reason Science Correspondent Ronald Bailey appeared on HuffPost Live to talk about the Supreme Court’s recent decision to hear a case dealing with the Fourth Amendment implications of taking a DNA sample from an arrestee prior to conviction. Is it just like fingerprints or a violation of civil liberty guarantees of privacy?

Here’s the link to the segment, where Bailey favored privacy over prosecution in a debate with other participants including Brian Neman, CEO of the biotech company Sanguine BioSciences, Karen Morrison, former prosecutor and law professor at Georgia State University, and Evan Michael Hess, professor of law at the Southern California Institute of Law.

The Stored Communications Act is a legal dinosaur. Technology has left our privacy rights in the “dust,” as it were. The blogsphere is finally outraged about the ease of government access to email. Maybe this will get Congress off its lazy ass to do something.

Just a few I’ve seen:

WSJ: Affair Highlights Uncertainty of Email-Privacy Laws by Ashby Jones and Joe Palazzolo posted yesterday.

Likely the Best One from EFF, of course: When Will our Email Betray Us? An Email Privacy Primer in Light of the Petraeus Saga by Hanni Fakhoury and Kurt Opsahl and Rainey Reitman:

The unfolding scandal that led to the resignation of Gen. David Petraeus, the Director of the Central Intelligence Agency, started with some purportedly harassing emails sent from pseudonymous email accounts to Jill Kelley. After the FBI kicked its investigation into high gear, it identified the sender as Paula Broadwell and, ultimately, read massive amounts of private email messages that uncovered an affair between Broadwell and Petraeus (and now, the investigation has expanded to include Gen. John Allen’s emails with Kelley). We’ve received a lot of questions about how this works—what legal process the FBI needs to conduct its email investigation. The short answer? It’s complicated.

CNET: Petraeus e-mail affair highlights U.S. privacy law loopholes | Because of the wording of an obscure 1986 federal law, the former CIA director — and the rest of Americans — receive less privacy protection than we would for love letters stored under a mattress by Declan McCullagh

WaPo: FBI investigation of Broadwell reveals bureau’s comprehensive access to electronic communications

San Francisco Chronicle: Petraeus scandal reveals threat to privacy

Politico: David Petraeus affair scandal highlights email privacy issues

Reuters: Collateral damage of our surveillance state by Julian Sanchez:

As the surreal sex scandal that forced CIA Director David Petraeus’ resignation reveals another prominent general’s “flirtatious” emails, the serious scandal here may well be the breadth of the FBI’s power to launch fishing expeditions through Americans’ most intimate communications.

onthemedia.org: Will the Patraeus scandal be good for privacy?

Defendant was stopped for a traffic light violation, and they already had reasonable suspicion defendant was armed because of a gang murder they thought they could connect him to. Therefore, the order out of the car and frisk were reasonable. United States v. Martinez, 2012 U.S. Dist. LEXIS 7019 (D. Mass. January 23, 2012).*

Based on the suppression hearing record, the USMJ had all he needed to find the consent voluntary, and defense counsel was not ineffective for not subpoenaing other witnesses for the hearing. United States v. Chacon, 2012 U.S. Dist. LEXIS 7596 (D. Nev. January 23, 2012).*

While there were contradictions in the officers’ testimony about the cause for defendant’s arrest by the Street Narcotics Enforcement Unit, the court finds there was still probable cause, and the motion to suppress is denied. United States v. Vasquez, 864 F. Supp. 2d 221 (E.D. N.Y. January 23, 2012), R&R 2011 U.S. Dist. LEXIS 130543 (E.D.N.Y., Nov. 10, 2011).*

Defendant objected to the alleged consent given by the lady who opened the door and let the police in. That was essentially a moot argument because, once the police were inside, he said he owned the place, and he consented and cooperated with the police. All this happened before the officers saw any evidence of crime. “Mr. Lucas’s consent to the officers’ presence and search was sufficient to dissipate any taint caused by an illegal initial entry. See U.S. v. Jarvi, 537 F.3d 1256, 1260 (10th Cir. 2008).” United States v. Lucas, 477 Fed. Appx. 486 (10th Cir. 2012).*

The state showed that the inventory search of defendant’s car was necessary to log the valuables, and defendant did not show that it was in bad faith, so he does not prevail. Boykin v. State, 2012 Ark. App. 274 (April 18, 2012).* [Note: Is the court shifting the burden of proof here? Should the state bear the burden of good faith inventory searches since they always carry the burden?]

The seizure of plaintiffs’ daughter for medical procedures was completely reasonable and based on medical advice, which plaintiffs virtually admit. Therefore, the special needs exception applies, and the state CPS officials have qualified immunity. Mueller v. Auker, 694 F.3d 989 (9th Cir. 2012).*

While defendant in the house of another logically would have standing to challenge anything seized off his person, defendant did not show a connection to the premises to have standing to challenge seizure of marijuana from the house. United States v. Aldaya, 2012 U.S. Dist. LEXIS 154172 (E.D. N.C. October 26, 2012).*

Defendant’s Fourth Amendment 2255 claim fails for lack of an IAC or actual innocence claim. Thus, it had to be raised in the original proceeding and was defaulted. Parks v. United States, 2012 U.S. Dist. LEXIS 154149 (N.D. Ga. October 1, 2012).*