The fact Georgia law requires traffic stops be made by marked vehicles is not a Fourth Amendment issue. Defendant consented to a search of his person, so the plain feel doctrine does not apply. United States v. Foskey, 2012 U.S. Dist. LEXIS 139541 (S.D. Ga. August 30, 2012).*

Plaintiff contended that AT&T Mobility accidentally released cell phone records to her city employer, and the employer publicized them. The subpoena sought records on a number, and the time predated plaintiff’s possession of the number. She lacks standing as to the time before she had the number, but the case proceeds as to the latter. The city remains as a defendant, but an individual gets qualified immunity in the § 1983 claim. As to AT&T, the arbitration clause in the phone contract is binding. McGreal v. At&T Corp., 2012 U.S. Dist. LEXIS 140686 (N.D. Ill. September 24, 2012).*

The officer had reasonable suspicion for a patdown. Questions unrelated to the stop did not measurably increase the length of the stop. United States v. Brome, 2012 U.S. Dist. LEXIS 139495 (W.D. N.Y. September 5, 2012).*

WSJ: New Tracking Frontier: Your License Plates by Julia Angwin and Jennifer Valentino-Devries:

Until recently it was far too expensive for police to track the locations of innocent people such as Mr. Katz-Lacabe. But as surveillance technologies decline in cost and grow in sophistication, police are rapidly adopting them. Private companies are joining, too. At least two start-up companies, both founded by ‘repo men’—specialists in repossessing cars or property from deadbeats—are currently deploying camera-equipped cars nationwide to photograph people’s license plates, hoping to profit from the data they collect.

Eugene R. Milhizer, Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule, 211 Military Law Review 211-262 (2012):

Abstract:

In this article, I undertake to debunk five great myths about the Fourth Amendment Exclusionary Rule. First, I debunk the myth that the contemporary exclusionary rule is constitutionally required in order to achieve several objectives, which include but are not limited to deterring future police misconduct. Second, I discredit the assertion that even if the rule is intended only to deter future police misconduct, it is justified because it efficiently accomplishes this objective. Third, I disagree with the contention that even if the present rule is too inefficient in deterring future police to justify its continuation, it can be sufficiently improved by a modification that accounts for the seriousness of the crime or the dangerousness of the criminal. Fourth, I oppose the argument that even if deterrence is insufficient to justify the rule, the rule’s objectives can be expanded to encompass and promote noble aspirations beyond police deterrence, which thereby justify the rule. Fifth and finally, I dispute the moral claim that even if none of the utilitarian justifications for the rule are sufficient, the rule is needed to preserve the integrity of the criminal justice system. Based on all the foregoing, I conclude that the exclusionary rule should be rescinded and replaced with an approach that punishes those who violate the Fourth Amendment while avoiding actions, such as suppression, which can frustrate justice by undermining the efficacy and legitimacy and the criminal trials.

Lance Polivy, Property Expanding Fourth Amendment Protections: How the Common Law Doctrines of Ad Coelum and Abandonment Will Impact Fourth Amendment Searches after Jones, posted on SSRN, September 29, 2012:

Abstract:

This note explores the majority opinion in United States v. Jones, which found that warrantless GPS tracking of a car for 28 days was a search within the meaning of the Fourth Amendment. The holding of Jones says that a physical trespass to a constitutionally enumerated area, with the intent to obtain information, which would have been considered a search at the time of the Founding, is a Fourth Amendment search. This note faithfully applies that holding to fly-over cases (in the context of domestic drones) and trash searches to determine if the majority in Jones implicitly overruled certain areas of Fourth Amendment jurisprudence and expanded Fourth Amendment protections. The note concludes that while Justice Alito’s concurrence feared that the majority opinion would constrict privacy rights, when the Jones holding is applied to certain categories of Fourth Amendment searches — ancient property doctrine will actually increase individual privacy protection from modern law enforcement surveillance techniques.

TechHive.com: Phone location data privacy issue hits federal court Tuesday by John P. Mello Jr.:

The U.S. government will be taking a second crack Tuesday at overturning a lower court ruling that’s preventing police from obtaining cell phone location records from two wireless carriers without a search warrant.

Now before the U.S. Court of Appeals in New Orleans, the government’s attempt to obtain 60 days of records from the carriers as part of a “routine” law enforcement investigation was previously rebuffed by a magistrate judge in a federal district court in Texas.

Defendant was stopped for not signaling a turn, and outstanding warrants were found. The search incident of the vehicle was unconstitutional, but it was permitted at the time (2007), so it was not suppressed. State v. Elias, 2012 Tex. App. LEXIS 8094 (Tex. App. – El Paso September 26, 2012).*

A mere allegation that defense counsel did not file a motion to suppress is inadequate. It must be shown that it mattered. “The record does not explain why trial counsel did not file a motion to suppress or present to the jury the argument Jane did not have authority to consent to the search. … Allegations of ineffective assistance of counsel must be firmly founded in the record.” Kane v. State, 2012 Tex. App. LEXIS 8124 (Tex. App. – Amarillo September 26, 2012).*

Defendant was stopped when a game warden saw him fire a deer rifle from his vehicle. The rifle was in plain view at the time of the stop. He was a felon in possession, and the stop was valid. United States v. Lee, 2012 U.S. Dist. LEXIS 139724 (N.D. Okla. September 28, 2012).*

Officers did not exploit defendant’s mental illness to get him to consent. He was lucid at the time he consented. United States v. Vangasbeck, 2012 U.S. Dist. LEXIS 140005 (M.D. Fla. September 28, 2012):

Further, although the agents were aware of the Defendant’s mental illness, either just prior to or during the interview, they clearly satisfied themselves that the Defendant was lucid. During the interview, the agents questioned the Defendant to determine if he was receiving treatment, if he was hearing voices during the interview itself and the last time he heard voices. Put simply, the agents satisfied themselves that the Defendant was not suffering symptoms, was aware of his surroundings, and was answering their questions in an appropriate manner. This is what the Court would expect a reasonable officer to do once the officer became aware that a defendant may have a mental illness.

Defendant fled from police when they attempted to stop him, so he abandoned his car and the mobile methamphetamine lab inside. Hall v. State, 2012 Ind. App. LEXIS 487 (September 25, 2012)*:

As to the nature of the offenses, Hall led police on a high-speed chase while operating a volatile methamphetamine lab in his vehicle. While Hall points out that no one was injured, that is more attributable to luck and the officers’ skill in responding to the situation than anything that Hall did. Hall also argues that his offenses were all part of one series of events, but he does not explain the nexus between his decision to drive with a suspended license and his decision to manufacture methamphetamine. His decision to do both at the same time served only to create a more dangerous situation.

Defendant’s stop for a traffic offense was not unreasonably long where his paperwork was not complete and it took longer because of that. His consent during the stop was valid. State v. Jones, 2012 Tenn. Crim. App. LEXIS 770 (September 26, 2012).*

Law.com: ACLU, Warning of ‘Total Surveillance State,’ Seeks Access to License Plate Reader Data by Sheri Qualters:

The American Civil Liberties Union of Massachusetts is suing the Justice Department and the Department of Homeland Security, seeking information about the government’s use of automatic license plate readers. The ACLU has filed public records requests concerning the readers in more than 30 states, but this is the first lawsuit to emerge, said an ACLU staff attorney.

ABAJ: Federal Warrantless Surveillance Has Increased 60% Since 2009, Says ACLU by Stephanie Francis Ward:

Federal warrantless surveillance using “pen register” and “trap and trace” technology increased by 60 percent between 2009 and 2011, according to a post published today on the American Civil Liberties Union’s Free Future blog.

Using Justice Department documents that the ACLU sued to obtain, the organization focused on federal law enforcement orders for technology that tracks incoming and outgoing phone numbers, emails and other Internet communications.

WaPo: A third of public fears police use of drones in US for surveillance will erode their privacy by AP:

WASHINGTON — More than a third of Americans worry their privacy will suffer if drones like those used to spy on U.S. enemies overseas become the latest police tool for tracking suspected criminals at home, according to an Associated Press-National Constitution Center poll.

Under Warshak, a search warrant is required to access email. In re Search Warrants for Info. Associated with Target Email Address, 2012 U.S. Dist. LEXIS 138465 (D. Kan. September 21, 2012):

The Court finds the rationale set forth in Warshak persuasive and therefore holds that an individual has a reasonable expectation of privacy in emails or faxes stored with, sent to, or received thorough an electronic communications service provider. Accordingly, the Fourth Amendment protections, including a warrant “particularly describing” the places to be searched and communications to be seized, apply to a search warrant seeking such communications. A warrant seeking stored electronic communications such as emails or faxes therefore should be subject to the same basic requirements of any search warrant: it must be based on probable cause, meet particularity requirements, be reasonable in nature of breadth, and be supported by the affidavit.

It appeared that the officer did his due diligence in getting a search warrant for defendant’s property based on an IP address obtaining child pornography. The address the IP address came back to was the second floor of a specific address. At the time the warrant was issued, it wasn’t known that the building was really two residences (although it is suggested by the inclusion of “Floor 2”). On the record before the court, it could not be determined whether the due diligence was sufficient, but the inevitable discovery doctrine was good enough to save the warrant. Also, the officers only searched the place they wanted when they found two residences. United States v. Mejia, 2012 U.S. Dist. LEXIS 135852 (N.D. Ill. September 24, 2012)*:

Not only did probable cause exist for a search of the Canas/Mejia residence, but the magistrate judge had already concluded as much and issued a warrant based on essentially the same information. The new information discovered during the search did nothing to destroy that probable cause—it only made clear that the second floor was the appropriate target of the search. Thus, there is no question that a warrant for that apartment would have been issued had the officers requested an amended warrant. Had the warrant been limited to the second floor, the same area would have been searched and the same evidence seized, and Mejia “would have been no better off.” Sims, 553 F.3d at 584. Therefore the government has met its burden to establish by a preponderance of the evidence that the information Mejia seeks to suppress inevitably would have been discovered by lawful means.

Police warrantless accessing of defendant’s text messages when he was arrested for neglect of a dependent that revealed text messages about drug dealing was unreasonable. There was also a three month delay in reaccessing them. Kirk v. State, 2012 Ind. App. LEXIS 479 (September 24, 2012):

By requiring the need for a warrant in order to search a cell phone, our court has recognized that the seizing of the contents of such items are deserving of protection and court oversight. See State v. Lucas, 859 N.E.2d 1244, 1251 (Ind. Ct. App. 2007) (officers should have obtained search warrant for locked box just as they had done to investigate contents of cell phone), trans. denied; Smith, 713 N.E.2d at 345 (cell phones and evidence flowing therefrom should not have been admitted into evidence when State failed to justify warrantless search). The State did not make clear the reason for the search of Kirk’s private cell phone. Kirk was not seen talking on his phone or even holding his phone prior to his arrest. Here, Kirk was arrested for neglect of a dependent and public intoxication; neither crime of which clearly implicated use of a cell phone.

Although Detective Schwomeyer was within his rights to confiscate the cell phone during the search incident to arrest, there was no real law enforcement need to open the cell phone, press a button to access the inbox, and read six to eight text messages. The State attempts to justify the search of the cell phone under the Indiana constitution by stating that the search intruded only a small amount into Kirk’s ordinary activities and that law enforcement needs were great. On balance, we are not persuaded.

New law review article: Adam M. Gershowitz, Texting While Driving Meets the Fourth Amendment: Deterring Both Texting and Warrantless Cell Phone Searches, 54 Ariz. L. Rev. 577 (2012):

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. Trading a confession for a search will encourage guilty pleas while reducing invasive, warrantless cell phone searches that are currently authorized under the Fourth Amendment.

Reasonable suspicion is not required for a border search of a ship entering port and just crossing the border. United States v. Rachid, 2012 U.S. Dist. LEXIS 137020 (N.D. Cal. September 24, 2012).*

Customs inspection of a parcel at the post office of the recipient was the functional equivalent of the border where the package was in the same condition as when it crossed the border from Hong Kong. United States v. 100 Counterfeit Cisco GLC SX MM Computer Parts, 2012 U.S. Dist. LEXIS 136782 (D.N.H. September 25, 2012).*

Officers in the area of a drug house where numerous arrests had occurred who smelled marijuana around the defendant had reasonable suspicion to detain him when he was seen leaving the place. United States v. Lima, 2012 U.S. Dist. LEXIS 137001 (D. V.I. September 25, 2012).*

Missouri v. McNeeley, 11-1425, SCOTUSBlog here:

Issue: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.

Smell of a meth lab coming from defendant’s apartment discovered at a knock-and-talk was exigent circumstances for an entry. United States v. Reed, 2012 U.S. Dist. LEXIS 136161 (E.D. Mo. August 14, 2012)*:

Here, the witness and both the testifying Officers smelled the strong ether-like chemical odor, and the fan in defendant’s bathroom window was blowing air into the corridor from which the odor emanated. The Officers tried the knock and talk approach discussed above; however, there was no response to the knocking at the front door, the light went off in the bathroom, people were heard talking inside the backdoor but there was still no response to the knocking and announcing “Police” or to the warning that if they did not open the door, the officers would kick it in. It is reasonable that an experienced officer such as Det. Burton would conclude that the residence contained a methamphetamine lab or methamphetamine manufacturing of some sort and that exigent circumstances were present. United States v. Lloyd, 396 F.3d 948, 954 (8th Cir. 2005). The forced entry was lawful under the totality of the circumstances.

Volokh Conspiracy: Do Users of Wi-Fi Networks Have Fourth Amendment Rights Against Government Interception? by Orin Kerr:

My earlier post on how the Wiretap Act applies to wireless networks triggered a lot of comments on how the Fourth Amendment might apply, so I thought I would have a post specifically on the matter. Here’s the question: Does governmental interception and analysis of the contents of a person’s wi-fi traffic constitute a Fourth Amendment search? And does it depend on whether the traffic is encrypted or unencrypted?

The answer turns out to be surprisingly murky. Because the Wiretap Act has been thought to protect wireless networks, the Fourth Amendment issue has not come up: There’s a surprising lack of caselaw on it. Second, there are plausible arguments on either side of the debate both for encrypted and unencrypted transmissions. So I wanted to run through the arguments and then ask which side readers find more persuasive. I’ll start with unencrypted communications and then turn to encrypted communications.

Use of a drug dog after the driver refused to consent to a search while they were awaiting the results of the DL check was reasonable. Jackson v. State, 2012 Ark. App. 508, 2012 Ark. App. LEXIS 636 (September 19, 2012):

Here, the purpose of the traffic stop was ongoing. Trooper Behnke testified he was still waiting for the results of a database search on the appellant. While waiting for those results, he asked for consent to search the vehicle, which the appellant refused to give. The trooper then deployed the drug dog. Officers do not need additional suspicion to allow the dog to sniff the exterior of the car. Cain v. State, 2010 Ark. App. 30, __ S.W.3d __. Moreover, our supreme court has found that “a stop is not complete until the warning citation and other documents are delivered back to the driver.” Menne v. State, 2012 Ark. 37, at 5-6, __ S.W.3d __, __. Because Trooper Behnke was still waiting for the criminal-history check when the drug dog was deployed, his routine tasks were not concluded. He was also processing the warning citation for the traffic violation. While we are troubled by both the scope and basis of the officer’s investigation—as pointed out in the concurring opinion—we find that the legitimate purpose of the stop was ongoing when the drug dog alerted to narcotics in the vehicle. Because we find that the legitimate purpose of the stop was ongoing, additional reasonable suspicion was not required.

NJ.com: N.J. bans big smiles from driver’s license photos by The Associated Press:

New Jersey motorists have another reason to frown about their driver’s license photos.

The state has banned motorists from making big smiles because such expressions don’t work with facial recognition software.

The policy has gone mostly unnoticed since taking effect in January.

NYTimes Editorial: When GPS Tracking Violates Privacy Rights:

For the right to personal privacy to survive in America in this digital age, courts must be meticulous in applying longstanding privacy protections to new technology. This did not happen in an unfortunate ruling last month by a three-judge panel of the United States Court of Appeals for the Sixth Circuit.

The case concerned a drug conviction based on information about the defendant’s location that the government acquired from a cellphone he carried on a three-day road trip in a motor home. The data, apparently obtained with a phone company’s help, led to a warrantless search of the motor home and the seizure of incriminating evidence.