That defendant may have had a pocket knife didn’t mean he was false when he said he had no weapons on him because small pocket knives are not considered weapons to most people. Defendant’s frisk was without reasonable suspicion he was armed. United States v. House, 463 Fed. Appx. 783 (10th Cir. 2012) (unpublished):

It is likely that many law-abiding citizens would not consider themselves armed with a weapon, while carrying a folded pocket knife, when approached on the street and questioned unexpectedly by an officer. To allow a search based on the hunch that a citizen walking down the street is illegally carrying a firearm, without more, serves to erode the precious protections of the Second and Fourth Amendments. See Terry, 392 U.S. at 22 (“[I]ntrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches [are] a result this Court has consistently refused to sanction.”).

An officer is free to initiate a consensual encounter without any articulable suspicion. Such an encounter may develop previously unconfirmed suspicions of criminal behavior and/or result in genuine concerns for officer safety. United States v. Jones, 606 F.3d 964, 968 (8th Cir. 2010). The difficulty in this case is that the consensual encounter did neither; in the absence of which, the evidence must be suppressed as violative of the Fourth Amendment.

When the state relies on the fellow officer rule, the fellow officer has to testify to establish the cause for a stop or probable cause. State v. Bowers, 87 So. 3d 704 (Fla. 2012), aff’g Bowers v. State, 23 So. 3d 767 (Fla. App. 2d Dist. 2009), disapproving Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001):

As this Court stressed in Peterson, another “unknowing” officer cannot rely on the fellow officer rule simply because the officer finds out relevant information possessed by another officer “after the fact.” Peterson, 739 So. 2d at 568. Here, Officer Tracy learned of the information after he became involved in the investigation, which occurred subsequent to the challenged stop. Thus, Officer Tracy cannot testify as to information that Officer Suskovich told him as a basis for determining the validity of the initial stop.

Our ruling is consistent with our precedent and the purpose of the fellow officer rule. The fellow officer rule has been applied by this Court only to instances where the officer is testifying as to the details of a search or seizure in which the officer was a direct participant. If an officer relies on a chain of evidence to formulate his or her belief as to the existence of probable cause for a search or seizure, the rule excuses the officer from possessing personal knowledge of each link in the chain of evidence if the collective knowledge of all the officers involved supports a finding of probable cause. In short, the rule allows an officer to testify with regard to a previous link in the chain for the purpose of justifying his or her own conduct.

This Court has never applied the fellow officer rule, as the Fourth District did in Ferrer, to allow an officer who had no firsthand knowledge of the reasons for the stop and was not yet involved in the investigation to testify regarding what the initial officer told him in order to establish the validity of the initial stop. To do so would be inconsistent with the rationale and holding articulated in Peterson. Moreover, we reject the State’s argument that Lara v. State, 464 So. 2d 1173, 1177 (Fla. 1985), set forth a broad rule that hearsay is always admissible in a motion to suppress hearing.

Shooting the unarmed plaintiff drunk driver six times in the legs with SL6 polyurethane bullets for not getting out of her car fast enough was excessive force as a matter of law, and the jury verdict for the defendants is reversed. Phillips v. Community Ins. Corp., 678 F.3d 513 (7th Cir. 2012) (2-1):

To determine whether a constitutional violation has occurred, we first evaluate the level of force used to arrest Phillips. The record establishes that the force exerted by an SL6 bullet is roughly comparable to a projectile from a bean-bag shotgun. Other courts of appeals have observed that baton launchers and similar “impact weapons” employ a substantially greater degree of force than other weapons categorized as “less lethal,” such as pepper spray, tasers, or pain compliance techniques. In Deorle v. Rutherford, the Ninth Circuit considered a bean-bag shotgun projectile as “something akin to a rubber bullet.” 272 F.3d 1272, 1280 (9th Cir. 2001). Deorle concluded that “the cloth-cased shot constitutes force which has the capability of causing serious injury, and in some instances does so.” An officer provided expert testimony that a “Use of Force Continuum … would list an impact weapon high on the schedule of force” and that “[i]t would be unreasonable for an officer to use an impact weapon on an unarmed person.” Id. at 1280 & n.17 “Such force is much greater than that applied through the use of pepper spray … or a painful compliance hold ….” Id. at 1279-80 (citations omitted); see also Thompson v. City of Chicago, 472 F.3d 444, 451 & nn.18-19 (7th Cir. 2006) (officer testimony regarding Chicago Police Department policies limiting use of “impact weapons” to “high-level, high-risk assailants” and describing such weapons as “unwarranted against a suspect resisting arrest” by punching and struggling); Mercado v. City of Orlando, 407 F.3d 1152, 1157 (11th Cir. 2005) (observing that the SL6 weapon “is classified as a ‘less lethal’ munition, [but that local] police regulations recognize that it can be used as a deadly weapon.”).

In defendant’s 1996 appeal from his conviction, the issue of reasonable cause of a stop of the cab defendant was riding in was decided against him. Still, the evidence of reasonable suspicion was strong. Police had a description of a robber in a White Fleet taxicab with a mustache and a red cap, and they saw him and pulled him over. That was reasonable cause. State v. Seals, 83 So. 3d 285 (La. App. 5th Cir. 2011).*

Defendant consented to a search of his car. A search warrant was obtained for defendant’s address based on his statement to the police where he lived. The search warrant wasn’t challenged. State v. Robinson, 87 So. 3d 881 (La. App. 5th Cir. 2011).*

There were no objective manifestations that the place to be searched was actually two residences. It was one with defendant staying as a guest, and the search warrant for the building was particular. United States v. Melton, 2012 U.S. Dist. LEXIS 71151 (E.D. Tenn. February 7, 2012):

Nevertheless, even assuming there were two residences, the Court finds nothing that would have put Investigator Butler on notice that the River Road house contained two dwellings. The house was a single family dwelling, not an apartment building, a duplex, or a townhouse. The affidavit states [Exh. 1, ¶3] that the officers verified the confidential informant’s description of the residence. The record is devoid of evidence that the residence had two mailboxes, driveways, or other physical indication that it contained two residences. The confidential informant’s statement to Investigator Butler that he lived in the downstairs portion of the residence did not indicate that the informant was renting a separate residence, rather than staying as Ms. Burgess and the Defendant’s guest. …

The reason for defendant’s traffic stop was a reasonable mistake of fact, and defendant was acting furtively when the officer walked up on him. The furtive gestures justified a frisk of the vehicle producing a gun, then a search warrant issued for the vehicle. United States v. Jenkins, 680 F.3d 101 (1st Cir. 2012).*

Officer’s waiting for backup to arrive before doing frisk of occupants of the car was not a separate seizure requiring a new analysis of reasonable suspicion. United States v. Boone, 2012 U.S. Dist. LEXIS 33914 (W.D. N.C. March 8, 2012).

This started as a motorist assist and ended up as a warning ticket. The whole thing took nine minutes, which was not unreasonably long. As defendant was leaving, the officer asked if he could ask some additional questions, and that led to a valid consent. The granting of the motion to suppress was reversed. People v. Kats, 967 N.E.2d 335, 2012 IL App (3d) 100683, 359 Ill. Dec. 605 (2012).*

“The 911 hang-up call, combined with the lack of answer on the return and Defendant’s overtly aggressive and hostile behavior and refusal to answer basic questions, provided a reasonable basis for the officers to conduct a protective sweep of the house to ensure that no one inside was in need of immediate help. While Defendant had a right to respond as he did, this nevertheless did not dispel the officers’ concern for the safety of the occupants.” United States v. Obbanya, 2012 U.S. Dist. LEXIS 33627 (N.D. Cal. March 13, 2012).*

Giving defendant until count of three to open door or the police would break it down was not reasonable, and the motion to suppress should have been granted. The state did not claim Hudson made the search valid anyway. (Also, police audiotaped their announcement, but the tape disappeared before the suppression hearing, so they stipulated.) State v. Aguilar, 228 Ariz. 401, 624 Ariz. Adv. Rep 12, 267 P.3d 1193 (2011):

P21 Unlike the circumstances in King, in which the officers testified that, after they announced themselves, they could hear people moving things within the apartment, here, no testimony was presented that the officers heard any noise or made any other observations suggesting the imminent destruction of evidence. Instead, someone simply looked outside and observed police officers and defendant chose not to answer the door. As noted by the Supreme Court in King, “[w]hen law enforcement officers who are not armed with a warrant knock on a door … the occupant has no obligation to open the door or to speak.” Id. at __, 131 S.Ct. at 1862. That none of the occupants opened the door when the police officers initially demanded that the door be opened, and one occupant peeked outside the motel window, did not give rise to an exigency justifying a warrantless entry. Therefore, the officers’ subsequent threat to forcibly enter the motel room was not reasonable conduct under the Fourth Amendment and was therefore unlawful. Accordingly, the evidence seized by the police following their entry must be suppressed.FN4

4. The State did not contend in the trial court, and has not asserted on appeal, that the evidence seized pursuant to the subsequently obtained search warrant would nonetheless be admissible. Cf. State v. Ault, 150 Ariz. 459, 465-66, 724 P.2d 545, 551-52 (1986) (concluding that evidence seized pursuant to a valid search warrant based on independent-source evidence was admissible, notwithstanding an invalid initial warrantless entry).

[Note: So, a Hudson claim is subject to waiver by the state, as it should be. Some states, like my own, wrongly find that the state can never raise standing in the trial court yet assert it on appeal without making a record. The same should be true of whether Hudson should save a search, but that is not even subject to proof. It seems quintessentially a question of law.]

The search of defendant’s car for “officer safety” was unjustified where defendant was handcuffed and in the back of a police car at the time. State v. Sheridan, 2011 Ohio 6011, 2011 Ohio App. LEXIS 4922 (3d Dist. November 21, 2011).*

Observing defendant running his truck into a ditch was reasonable suspicion for a stop for driving under the influence. Bondegard v. State, 81 So. 3d 1181 (Miss. App. 2011).*

In defendant’s stop for running a red light, IDs with Hispanic surnames were found on his person. Considering the area was known for robberies of Hispanics, there was probable cause to search the car under the automobile exception. United States v. Woodruff, 830 F. Supp. 2d 390 (W.D. Tenn. 2010).*

There was probable cause to believe that defendant was a drug dealer, and it is reasonable for an issuing magistrate to conclude that evidence of drug dealing would be found where he lives. United States v. Sewell, 2011 U.S. Dist. LEXIS 133424 (N.D. Ind. November 17, 2011):

The Magistrate Judge, however, reasonably relied on evidence that Castaneda drove to the Residence soon after he had returned from a trip to California taken for the purpose of acquiring cocaine and on a day during which he had been on the phone discussing drug trafficking, to find probable cause. Additionally, “[i]n the case of drug dealers evidence is likely to be found where the dealers live.” United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996) (citing United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991)). While some information in the Affidavit, now corrected in the record, was not accurate, the Affidavit contained sufficient accurate information to permit the reasonable inference that the Defendant lived at or was associated with the Residence.

Defendant was stopped and arrested for driving on a suspended license. Because he was taken into custody, his vehicle was lawfully impounded and subjected to an inventory. United States v. Dill, 2011 U.S. Dist. LEXIS 133492 (S.D. Ind. November 18, 2011).*

The search of defendant’s car was supported by probable cause, so the automobile exception applied. United States v. Woodruff, 830 F. Supp. 2d 390 (W.D. Tenn. 2011).*

To apply a Davis good faith exception to an officer’s interpretation of the statute, it has to be correct and in accord with existing case law that thereafter changed. If the officer is wrong on application of the statute, that’s a mistake of law and any good faith exception would not apply. United States v. Gore, 2012 U.S. Dist. LEXIS 64784 (D. S.C. May 9, 2012).*

Officers approached defendant outside a store and got her ID to run a “local check” finding no warrants. They let her go but watched her walk and then decided to encounter her again, having her back against a wall and officers to both sides. A reasonable person would not have felt free to leave, and this was a Terry stop without justification. Defendant had the burden of showing that this was a seizure, and she satisfied it. State v. Young, 167 Wn. App. 922, 275 P.3d 1150 (2012).*

“Clifford Ochser brought this civil rights action against two deputy sheriffs for arresting him on a warrant that had been quashed some thirteen months earlier. Although we hold that Ochser’s arrest was an unreasonable seizure prohibited by the Fourth Amendment, we conclude that the deputies are entitled to qualified immunity because then-existing law did not clearly establish the unconstitutionality of their actions.” Ochser v. Funk, 228 Ariz. 365, 624 Ariz. Adv. Rep. 35, 266 P.3d 1061 (2011).*

Pushing plaintiffs out of the way to keep them from interfering with a police drug investigation was reasonable under all the circumstances. Robles v. Cayton, 2011 U.S. App. LEXIS 25504 (5th Cir. December 21, 2011) (unpublished).*

Police received a 911 call of a break-in occurring at a house. They went to the house and found a man standing outside. His stop was on reasonable suspicion. United States v. McMullin, 2011 U.S. Dist. LEXIS 147528 (E.D. Mich. December 22, 2011).*

There is no Fourth Amendment privacy interest in IP information created by Twitter. Smith and Miller govern. In re Application of the United States of America for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114 (E.D. Va. 2011):

Petitioners and amici argue that the possibility of using IP address information to “pinpoint” a person’s physical location extends to “locations in, and movements between, particular private spaces over a period of time.” Doc. 45 at 20. As the government points out, however, investigators have long been able to use other forms of information to place a caller in a particular place, such as a private home, at a particular time. The Fourth Circuit has explicitly approved the collection of non-IP subscriber information for this very purpose. See Bynum, 604 F.3d at 164 n.2. The granularity of the “pinpoint” accuracy of IP address location finding, as described in Petitioners’ brief, is hardly a function of examining IP addresses by themselves. Rather, as in the case of the commercial enterprises described by the Bellovin Brief, the granularity of the “pinpoint” information results from aggregation and correlation of IP address information with other records. Bellovin Br. at 7-8. “Pinpointing” a person’s location is even more difficult if the government must distinguish between users of “static” or “dynamic” IP addresses because “dynamic” IP addresses are not consistently used by the same computer. The Court finds nothing in Karo or other cases indicating that combining records of IP address information with other information would infringe a locational privacy interest protected by the Fourth Amendment.

. . .

Even if Petitioners had a reasonable expectation of privacy in IP address information collected by Twitter, Petitioners voluntarily relinquished any reasonable expectation of privacy under the third-party doctrine. To access Twitter, Petitioners had to disclose their IP addresses to third parties. This voluntary disclosure—built directly into the architecture of the Internet—has significant Fourth Amendment consequences under the third-party doctrine, as articulated in United States v. Miller and Smith v. Maryland.

. . .

Two consequences follow from the Court’s conclusion that Petitioners voluntarily relinquished any expectation of privacy in their IP addressing information when they chose to use the Internet to communicate with the Twitter service. First, because the Twitter Order did not invade Petitioners’ reasonable expectations of privacy, it cannot constitute a search in violation of the Fourth Amendment. See Florida v. Riley, 488 U.S. 445, 449-50 (1989); California v. Ciraolo, 476 U.S. 207, 211 (1986) (“The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’”) (quoting Katz, 389 U.S. at 360 (Harlan, J., concurring)). Therefore their Fourth Amendment challenge to the Twitter Order fails.

Second, Petitioners do not have Fourth Amendment standing to object to the Twitter Order. They have not alleged a personal injury cognizable by the Fourth Amendment, nor have they been charged with any substantive offense based on information obtained as a result of the Twitter Order. No personal injury fairly traceable to the allegedly unlawful conduct has therefore been shown. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991); cf. Karo, 468 U.S. at 721 (“Because locating the ether in the warehouse was not an illegal search—and because the ether was seen being loaded into Horton’s truck, which then traveled the public highways—it is evident that under Knotts there was no violation of the Fourth Amendment as to anyone with or without standing to complain about monitoring the beeper while it was located in Horton’s truck.”); Rawlings v. Kentucky, 448 U.S. 98, 104-05 (1980); Rakas v. Illinois, 439 U.S. 128, 148-50 (1978). Without a reasonable expectation of privacy in the subject information, therefore, Petitioners are not entitled to challenge the Twitter Order on Fourth Amendment grounds. Cf. Rakas, 439 U.S. at 149-50; Rawlings, 448 U.S. at 105-06.

. . .

The peculiar nature of electronic data is a further consideration. Electronic evidence poses an even greater danger of destruction or concealment than does traditional physical evidence. As the courts are discovering, electronic evidence can be overwritten, transferred, or expunged with little to no human effort, and if performed by a competent expert, may leave little trace that it ever existed. See, e.g., Zubulake v. UBS Warburg LLC (Zubulake IV), 220 F.R.D. 212, 214, 214 n.2 (S.D.N.Y. 2003). Surprise in the execution of a § 2703 order may therefore be even more important than speed. What the Supreme Court has said about search warrants is especially true of § 2703 orders: “The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice.” Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679 n.14 (1974) (affirming post-seizure notice and hearing in civil forfeiture action). In this respect, § 2703 orders are more like search warrants than grand jury subpoenas. Cf. In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000) (discussing practical distinctions between search warrant and grand jury subpoena).

H/T to eff.org for the link to the opinion. See Privacy Loses in Twitter/Wikileaks Records Battle.

Defendant who was not in possession of his Michigan MMJ card could be arrested under the statute, but he had immunity from prosecution. Constructive possession other than on his person with the MMJ is not enough to avoid arrest. People v. Nicholson, 306496 (Mich. App. June 26, 2012).

The tip from the CI here was fully corroborated, and that gave reasonable suspicion. On the question of officer safety, the observations at the scene supported reasonable suspicion, too. United States v. Thompson, 2012 U.S. Dist. LEXIS 86800 (S.D. W.Va. June 22, 2012).*

Defendant’s consent was voluntary. When questioned about a blunt, he offered to allow the officer to search. The officer didn’t even ask. United States v. Denson, 2012 U.S. Dist. LEXIS 87493 (E.D. Tex. May 21, 2012).*

The officer had reasonable suspicion to detain the defendant for “ATM skimming,” but he did not have sufficient evidence to frisk him. Defendant’s own curious and false answers about what he was doing could be checked out, and that made the 3-4 hour detention before his arrest reasonable. United States v. Pascu, 2012 U.S. Dist. LEXIS 88071 (D. Mass. June 26, 2012):

Pascu nevertheless argues that the duration of the stop was unreasonable. Pascu was first stopped sometime after 2 p.m., and was formally arrested by all accounts some three or four hours later. From the testimony of the officers, it appears that all of the time between the beginning of the encounter and the formal arrest was reasonably necessary to the developing investigation related to the initial Terry stop. Officer Allen needed time to assess what was going on when he first stopped Pascu and started speaking to him. As Pascu gave answers about what he was doing there and whom he was meeting, Officer Allen had reason to believe that Pascu’s answers were not truthful and were evasive. When other officers arrived, Officer Allen had to get them up to speed about what was happening and they began searching for the satchel and sunglasses that had been reported by the caller.

Detectives who later arrived had to call bank security to get confirmation that the ATM appeared tampered with and to get surveillance photographs to determine whether Pascu was the individual who had installed the “skimmer” device and pinhole camera on the ATM. Detective O’Connor needed time to view the photographs and to cross-reference addresses found in the Chrysler with other ATMs in the region. Finally, because the detectives were unable to remove the “skimmer” from the ATM, they had to wait until Special Agent Seidel arrived and removed it. All of these investigative steps were “reasonably responsive to the circumstances justifying the stop in the first place as augmented by information gleaned by the officer[s] during the stop.” Chaney, 647 F.3d at 409 (quotation and citation omitted). Pascu’s lawful Terry detention did not become a de facto arrest because of its duration.

Plaintiff’s § 1983 claim that he was subjected to an anal cavity search that led to finding tobacco apparently led to his prosecution, and Younger abstention would be applied until the criminal case ran its course. Mason v. Mercy Med. Ctr., 2012 U.S. Dist. LEXIS 88441 (E.D. Cal. June 25, 2012).

Officers had probable cause as to defendant’s premises from controlled delivery of a DHL parcel with 700 grams of cocaine that went out the back door and over a fence. Officers did a knock-and-talk and the man answering the door fled inside. Officers gave chase and calmed the situation down, holstering their guns. That was exigent circumstances, akin to hot pursuit, given probable cause. After a conversational, nonconfrontational meeting, consent to search the premises was given. United States v. Brache, 2012 U.S. Dist. LEXIS 88775 (S.D. Fla. June 25, 2012).*

Stop and frisk should not be taken lightly. Even crediting the officer’s testimony, this stop and frisk was completely unjustified. The trial court’s order permitting it “broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures.” In re Darryl C., 2012 NY Slip Op 05118 (1st Dept. June 26, 2012):

The law imposes a strict standard for a stop and frisk, requiring an officer to have a reasonable suspicion of an individual’s involvement in criminal activity (CPL 140.50[1]; People v De Bour, 40 NY2d 210, 223 [1976]) and then “knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety” (CPL 140.50[3]; People v Batista, 88 NY2d 650, 654 [1996]). The motion court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. Such ruling broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures (NY Const art I, § 12; US Const 4th Amend). The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built. The ramifications go beyond this single case. Widespread, aggressive police tactics in street encounters have recently raised concerns in other judicial forums. In People v Holland (18 NY3d 840 [2011, Lippman, Ch.J., dissenting]), the Chief Judge took issue with his own Court’s dismissal of the appeal as “not only unsound jurisdictionally, but erosive of this Court’s role in articulating the law governing police-civilian encounters” (id. at 845). He stated:

“When courts with the factual jurisdiction to make attenuation findings employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court’s proper function to resolve … This is not an exaggerated or purely academic concern in a jurisdiction where, as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime” (id.).

In a footnote, Chief Judge Lippman made reference to Floyd v City of New York (8 F Supp 2d 417 [SD NY 2011]), in which the United States District Court noted, “[T]he policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching almost 600,000 a year” (id. at 422 [internal quotation marks omitted]). The District Court has now granted class action status to the plaintiffs in that case to challenge the constitutionality of the New York Police Department’s stop-and-frisk program (Floyd v City of New York, 2012 WL 1868637, 2012 US Dist LEXIS 68676, [SD NY, May 16, 2012, No. 08-Civ-1034 (SAS)]).

While the dissent’s opening paragraph frames the issue in somewhat dramatic terms, the actual testimony in this case presents a picture that is more pedestrian in all senses of the word. Appellant, a 14-year-old boy standing alone on the street, was stopped in broad daylight, by a police officer who believed appellant to be a truant, not a gang member, holding an object that the officer could not identify. The subsequent search was conducted without any evidence that the appellant was engaged in criminality or that he represented any threat to the safety of the officer. The motion court’s ruling would, in effect, give the police the authority to stop and frisk a pedestrian who is not a suspect of a crime.

The facts herein, even crediting the officer, prohibit the search undertaken in this case. …

You can’t even drink in some places without NYPD knowing about it: NYTimes: Police Had Unusual Access to Nightclub Data, Suit Says by Russ Buettner:

For more than a year, the New York Police Department had ready access to a database that held the scanned identification document of every person who entered a large SoHo nightclub, whether those people were engaged in criminal activity or simply socializing with friends, according to a lawsuit.

The club, Greenhouse, has had a history of violence and other problems. Faced with the prospect of being shut down, the owners signed an agreement with the Police Department in March 2011 that required them to scan the ID of everyone who passed through the club’s doors. The data was to be kept for at least 30 days, and provided to the police upon request.

NLJ.com: High court’s GPS ruling may have minimal impact because cellphone tracking is legal by Richard Q. Hark:

The U.S. Supreme Court recently held in U.S. v. Jones that the warrantless use of a government-placed GPS tracking device on a defendant’s vehicle constitutes a trespass, requiring suppression of all evidence generated there from. Some thought Jones could become a significant step in Fourth Amendment jurisprudence protecting defendants’ rights. However, in 2010, Congress amended the Stored Communications Act (SCA), 18 U.S.C. 2701, severely curtailing Jones’ importance. This is because a vast majority of people in the United States voluntarily carry a GPS tracking device — their cellular telephone — to which the 2010 SCA amendments gave the government almost unfettered access.

Defendant who claims his voice was not a recording had no standing to challenge the “search,” if it was one, that obtained the recordings. United States v. White, 2012 U.S. Dist. LEXIS 89020 (E.D. Tex. June 26, 2012).*

Having seen criminal activity going on in an open garage, officers could approach as any visitor to look in. Having seen criminal activity, “[t]he Agents could then lawfully enter the open Garage to investigate further the apparent criminal activity.” United States v. Contreras, 2012 U.S. Dist. LEXIS 87921 (N.D. Ill. June 26, 2012).*

The specific ground that this traffic stop was unreasonable was not raised in the district court, so plain error applies, and this wasn’t. United States v. Castro, 2012 U.S. App. LEXIS 13147 (5th Cir. June 27, 2012).*

Seach incident of a cell phone was permissible without the government showing that the contents were likely to be destroyed or altered. United States v. Lewis, 2012 U.S. Dist. LEXIS 86808 (E.D. Ky. June 22, 2012):

Nevertheless, courts have not required the government to show that the information on the cell phone would actually be deleted or that the defendant was actually capable of deleting the information at the time of the search incident to arrest. See Murphy, 552 F.3d at 411 (rejecting argument that government must ascertain a cell phone’s storage capacity to justify a warrantless search of a phone retrieved during a search incident to arrest because “it is very likely that in the time it takes for officers to ascertain a cell phone’s particular storage capacity, the information stored therein could be permanently lost”); United States v. Dennis, No. 07-008-DLB, 2007 U.S. Dist. LEXIS 83892, 2007 WL 3400500, at * 8 (E.D. Ky. 2007) (rejecting defendant’s argument that search of cell phone was invalid because it was impossible for him to destroy information on it and stating that “[t]he test for validity of a search incident to arrest is not whether the defendant has actual, present capacity to destroy the evidence, but merely whether the evidence was in his immediate control near the time of the arrest”); United States v. Gomez, 807 F.Supp.2d 1134, 1147-48 (S.D. Fla. 2011) (stating that, under the search-incident-to-arrest exception to the warrant requirement, “the existence of probable cause to search the device, the potential loss of information, or the diminished expectation [of privacy] in call history data are inconsequential. What is consequential is the location that the device was found incident to arrest and the time that the search was conducted”).

With an iPhone, somebody else with knowledge of the passwords could remotely erase the phone. Is that enough?