Wired.com: Carrier IQ Admits Holding ‘Treasure Trove’ of Consumer Data, But No Keystrokes by David Kravets:

An embattled phone-monitoring software maker said Friday that its wares, secretly installed on some 150 million phones, have the capacity to log web usage, and to chronicle where and when and to what numbers calls and text messages were sent and received.

The Carrier IQ executives, speaking at their nondescript headquarters in a residential neighborhood in the heart of Silicon Valley, told Wired that the data they vacuum to their servers from handsets is vast — as the software also monitors app deployment, battery life, phone CPU output and data and cell-site connectivity, among other things. But, they said, they are not logging every keystroke as a prominent critic suggested.

The data, which gets downloaded from consumers’ phones roughly once a day, is encrypted during transit and also provided to carriers to enhance the “user experience,” these executives said.

“We do recognize the power and value of this data,” Andrew Coward, the chief marketing officer, said. “We’re very aware that this information is sensitive. It’s a treasure trove.”

A CTX luggage scanner at Honolulu Airport indicated a dark spot in a luggage scan that suggested to the TSA screener that it could be a “sheet explosive,” designed to elude screeners. When the suitcase was opened, a laptop was where the CTX machine indicated to search further. When the laptop was pulled out, an envelope came out and photographs spilled out that had some child pornography in them. This administrative search was valid, and the district court erred in suppressing the search. The court credits that the officer was still looking for “sheet explosives” in the photographs. United States v. McCarty, 648 F.3d 820 (9th Cir. 2011), rev’g United States v. McCarty, 672 F. Supp. 2d 1085 (D. Haw. 2009):

So, as long as (1) the search was undertaken pursuant to a legitimate administrative search scheme; (2) the searcher’s actions are cabined to the scope of the permissible administrative search; and (3) there was no impermissible programmatic secondary motive for the search, the development of a second, subjective motive to verify the presence of contraband is irrelevant to the Fourth Amendment analysis. See id.; Edmond, 531 U.S. at 45-46; Aukai, 497 F.3d at 962; Bulacan, 156 F.3d at 967-68; Bowhay, 992 F.2d at 231. Thus, the presence here of a secondary desire to confirm that the items searched might be contraband could not, in and of itself, invalidate the initially constitutional administrative search Andrade conducted, at least as long as she actually engaged in a search for explosives and her actions were no more intrusive than necessary to clear the bag of any safety concerns. See Bowhay, 992 F.2d at 231 (“When the police conduct would have been the same regardless of the officer’s subjective state of mind, no purpose is served by attempting to tease out the officer’s ‘true motivation.” (citing Horton v. California, 496 U.S. 128 (1990))). The subjective intent of the individual officer in such a search thus becomes as relevant as objective conduct only at the point at which the search ceases legitimately to be for the valid administrative purpose, as that is the point after which the administrative exception can no longer justify continuation of the warrantless search.

2. Defining Search Scope

The crux of the issue, then, involves two related questions: (1) when did Andrade’s administrative search for explosives truly end, and become a wholly independent search for evidence of child pornography?; and (2) which of Andrade’s actions exceeded the scope of the administrative search by becoming “more extensive [or] intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives”? Davis, 482 F.2d at 913.

. . .

However unclear Andrade’s testimony was on other points—exactly which images she saw, how many photographs spilled onto the table, and whether she touched or did not touch the photographs on the table before calling the lead officer—she was consistently clear and emphatic that when she looked through the photographs in the envelope, she was still acting to ensure that there were no sheet explosives hidden inside. No testimony in the record contradicted hers on this point. Further, this search intent was consistent with the TSA protocol requiring Andrade to thumb through the photographs in order to clear the bag. The district court’s factual conclusion on this point is without support in the record, and must be vacated.

Defendant’s house was under surveillance, and police followed car away, which they stopped 8-10 miles from defendant’s house. After the stop, one person stopped was on a cell phone which an officer took away from him but did not look at the calls because he thought he needed a warrant. Officers then decided to secure the house while getting a search warrant. It was reasonable to believe that the occupants knew the police were around or even coming, so a warrantless entry into the property to secure it was reasonable under the circumstances. United States v. Lockett, 2011 U.S. Dist. LEXIS 137266 (M.D. Ga. November 30, 2011):

According to the officers, the decision to secure the residence was based on several factors: (1) they did not know who was in the residence; (2) concerns about preserving evidence; (3) preventing the destruction of evidence; (4) the amount of traffic coming in and out of the residence during the day; (5) the fact Wynn and Young were found with drugs; (6) suspicions that there were drugs at the residence; (7) the fact either Wynn or Young was on the cell phone while in the police vehicle, which led to a concern that Defendant was tipped off about the police activity; (8) the fact Defendant left the residence after the Nissan was stopped; and (9) the attention drawn by the Wynn and Young traffic stop.

. . .

The Court agrees with the Government that the officers had an objectively reasonable basis to believe that exigent circumstances existed which required their warrantless entry into Defendant’s residence. Wynn and Young, who were stopped after leaving Defendant’s residence, were found to be in possession of cocaine and marijuana. Wynn or Young spoke with someone on the telephone, and shortly thereafter Defendant and another male were seen talking on the telephone, going to the outbuilding, and leaving the premises. The officers could not see into the residence or the outbuilding, but knew there was at least one person still in the residence. The Court finds that based on the totality of the circumstances the officers could reasonably have determined that Defendant was aware of the surveillance and that evidence could have been destroyed during the time it took them to get a search warrant.

A traffic citation is not an “arrest” for U.S.S.G. § 4A1.2(a)(2). The majority does not cite the Fourth Amendment arrest cases, but the concurrence and dissent does. United States v. Leal-Felix, 09-50426 (9th Cir. November 30, 2011) (en banc):

In this appeal, we are asked to interpret the United States Sentencing Guidelines § 4A1.2(a)(2). The United States Sentencing Commission (the “Commission”) has authority to define the terms in the Sentencing Guidelines. See 28 U.S.C. § 994(p). However, until it does, we consider the context and purpose of the Sentencing Guidelines as a whole in interpreting them. Cf. Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). In Sentencing Guidelines § 4A1.2(a)(2), we interpret the term “arrest” to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient. Therefore, we vacate the sentence imposed by the district court and remand for re-sentencing.

. . .

[9] Nothing in the record suggests Leal-Felix was ever formally arrested for driving with a suspended license. He was not told he was “under arrest,” he was not transported to the police station, and he was not booked into jail. Absent one of these hallmarks of a formal arrest, the district court erred in finding that he had been “arrested” for purposes of the Sentencing Guidelines. Therefore, his sentence is vacated. The case is remanded for resentencing in accordance with this opinion.

Concurrence:

I join the majority’s opinion, but write separately to highlight the most compelling reason for concluding that a traffic citation is not an arrest for the purposes of the Sentencing Guidelines: the common understanding of the term arrest does not include being pulled over and ticketed for a traffic violation.

It is a bedrock principle of statutory construction that “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979). I am confident that an average citizen—with or without a law degree—would not believe he had been arrested if pulled over, briefly detained and issued a traffic ticket. Indeed, if a traffic citation constituted an arrest in ordinary parlance, then aspiring police officers and prison guards might have a lot more to disclose on their job applications. Young drivers would need to be more concerned about getting into college, and those filling out employment applications, background checks, visa applications, and adoption papers would need to employ an entirely different “truth-o-meter” than commonly understood. It seems unlikely, however, that police departments, prisons, colleges, government agencies and adoption organizations mean—or are even concerned about—speeding tickets when they ask if applicants have ever been arrested. In other words, treating an ordinary traffic ticket as an arrest defies our common experience and would be a paradigmatic shift.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion which, in my view, improperly imports Fourth Amendment analysis into calculation of a sentence under the Sentencing Guidelines, and unnecessarily creates a circuit split.

Law.com: 9th Circuit, in Reversal, Says Traffic Stops Aren’t ‘Arrests’, Ginny LaRoe:

Is a traffic stop an “arrest” for sentencing purposes in federal court?

The Ninth Circuit U.S. Court of Appeals on Wednesday in an en banc ruling said no, reversing itself and creating a circuit split.

The court, by a 10-1 vote, said a traffic citation is not the same as a formal arrest, which would include informing the suspect he was under arrest and taking him to jail or a police station.

Care2.com: Drug Testing Welfare Recipients is “Compassionate” by Robin Marty:

Florida is already mired in courtroom proceedings over their new law mandating that all welfare recipients must submit to and pass a drug test in order to receive benefits. But despite the state’s court blocking the law as a violation of the fourth amendment, Ohio legislators are looking at implementing the same practice in their state.

Because, as one Republican law maker puts it, it’s the “compassionate thing to do.”

. . .

Florida quickly learned that regardless of the legality of their plan, the actual testing itself showed that despite the Republicans’ assumptions, very few welfare recipients actually were using drugs. In fact, the percentage of welfare recipients using drugs was actually lower than that of the regular population.

That kind of emasculates the “state need” for the intrusion then, doesn’t it?

Federal Rules changes are effective December 1 [except the U.S. Sentencing Guidelines which are November 1]. Rule 41 changes involve adding “reliable electronic means” and tracking warrants, almost in anticipation of Jones, considering it takes three years for rules changes to work their way up.

Rule 41. Search and Seizure
. . .
(d) Obtaining a Warrant.
. . .
(3) Requesting a Warrant by Telephonic or Other Reliable Electronic Means. In accordance with Rule 4.1, a magistrate judge may issue a warrant based on information communicated by telephone or other reliable electronic means.
(e) Issuing the Warrant.
. . .
(2) Contents of the Warrant.
. . .
(C) Warrant for a Tracking Device. A tracking-device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:
(i) complete any installation authorized by the warrant within a specified time no longer than 10 days;
(ii) perform any installation authorized by the warrant during the daytime, unless the judge for good cause expressly authorizes installation at another time; and
(iii) return the warrant to the judge designated in the warrant.
(f) Executing and Returning the Warrant.
(1) Warrant to Search for and Seize a Person or Property.
. . .
(D) Return. The officer executing the warrant must promptly return it — together with a copy of the inventory — to the magistrate judge designated on the warrant. The officer may do so by reliable electronic means. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.
(2) Warrant for a Tracking Device.
(A) Noting the Time. The officer executing a tracking-device warrant must enter on it the exact date and time the device was installed and the period during which it was used.
(B) Return. Within 10 days after the use of the tracking device has ended, the officer executing the warrant must return it to the judge designated in the warrant. The officer may do so by reliable electronic means.
(C) Service. Within 10 days after the use of the tracking device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person’s residence or usual place of abode with an individual of suitable age and discretion who resides at that location and by mailing a copy to the person’s last known address. Upon request of the government, the judge may delay notice as provided in Rule 41(f)(3).

In a fascinating case, plaintiff female police officer who, with another, was contaminated with fleas on the job who was sent to the county’s emergency services decontamination area and had a voyeur male officer videotaped her nudity stated a claim for relief against the county for a violation of privacy under the due process clause of the Fourteenth Amendment. She did not, however, state a Fourth Amendment claim because the offending male officer was acting on his own, not for state purposes, despite the county’s spurious claim that the video was for training purposes of how to decontaminate [which was completely undermined by how it was shared]. The court also finds that ease of electronic sharing of the video factored into the invasion of privacy. Doe v. Luzerne County, 660 F.3d 169 (3d Cir. 2011):

Although the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit, other circuits — including the Second, Sixth and Ninth Circuits — have held that such a right exists. See, e.g., Poe v. Leonard, 282 F.3d 123, 136-39 (2d Cir. 2002) (finding that plaintiff, a female civilian who was participating in a police training video, alleged sufficient facts to raise a triable issue of whether her constitutional right to privacy was violated where the male police officer surreptitiously filmed her in the dressing room while topless and without a bra); York v. Story, 324 F.2d 450, 454-56 (9th Cir. 1963) (finding that the plaintiff properly stated a claim for a violation of her constitutional right to privacy where she alleged that, while reporting a sexual assault, a male police officer deceived her into permitting him to photograph her genitals and exposed breasts under the pretext of an investigation), cert. denied, 376 U.S. 939 (1964); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 497-98 (6th Cir. 2008) (finding a privacy violation where a middle school’s surveillance cameras recorded the plaintiff students in their undergarments while in the school locker room).

Privacy claims under the Fourteenth Amendment necessarily require fact-intensive and context-specific analyses, and unfortunately, bright lines generally cannot be drawn. The difficulty in drawing a bright line is evident as we are not aware of any court of appeals that has adopted either a requirement that certain anatomical areas of one’s body, such as genitalia, must have been exposed for that person to maintain a privacy claim under the Fourteenth Amendment or a rule that a nonconsensual exposure of certain anatomical areas constitutes a per se violation. See, e.g., Poe, 282 F.3d at 136-39 (conducting a context-specific analysis); York, 324 F.2d at 454-56 (same); Brannum, 516 F.3d at 493-500 (same but in the Fourth Amendment context). We likewise refuse to draw bright lines based on anatomical parts or regions. Accordingly, we must analyze the specific circumstances under which the alleged violation occurred.

We conclude that Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex. …

Video of the stop confirms that defendant consented to a dog sniff and believed he was free to go. [But, once the questioning begins, does anybody really free to leave?] United States v. Bowman, 660 F.3d 338 (8th Cir. 2011)*:

The DVD of the stop is the best evidence of what happened; it confirms that written record which supports the conclusion that the interaction between the Trooper and Bowman after the tickets were issued was cooperative and consensual. The Trooper asked Bowman if he would answer additional questions and Bowman replied “yeah” and then responded to those questions, all of which were drug interdiction questions. The Trooper then asked Bowman if he would consent to a search of his car, to which Bowman responded “no.” (This alone indicates that Bowman understood that he was not required to comply with the Trooper’s requests.) Then Bowman told the Trooper that he was “cool” with a dog-sniff search. There are no facts that would indicate a Fourth Amendment seizure occurred. This appeal point is thus also without merit.

ICE raid on a restaurant led to appellant’s arrest for entering and remaining in the country illegally. While an egregious violation of the Fourth Amendment might lead to suppression, the government does not even rely on that here, and the exclusionary rule does not otherwise apply to removal proceedings. Garcia-Torres v. Holder, 660 F.3d 333 (8th Cir. 2011).*

San Antonio Express-News: Attorney: Trial was tainted by search; Lawyer says prosecutor rifling through defense table ‘unsettled’ him by Craig Kapitan:

Defense attorney Tony Reyes was in the middle of calling witnesses for his client’s embezzlement trial last January when, during a jury break, a district attorney’s office employee served him with a search warrant signed by a judge in another courtroom.

State District Judge Ron Rangel told Reyes to stand back as a prosecutor then began sifting through documents on the defense table, the attorney recalled Wednesday as he testified at a hearing for his client’s motion for a new trial.

The tactic — in which Reyes was named a criminal suspect alongside his client on the search warrant — was so unheard of and shocking that it obliterated his ability to zealously defend his client, he and a large team of attorneys have alleged during sporadic hearings over the past month.

Prior post here.

NPR: Fresh Air: Interpreting The Constitution In The Digital Era:

GPS monitors can track your every movement. Brain scans can now see lies forming in your brain. And advancements in genetic engineering may soon allow parents to engineer what their children will look and be like.

These new technologies are “challenging our Constitutional categories in really dramatic ways,” says George Washington University law professor Jeffrey Rosen. “And what’s so striking is that none of the existing amendments give clear answers to the most basic questions we’re having today.”

On Wednesday’s Fresh Air, Rosen, the co-editor of the new book Constitution 3.0: Freedom and Technological Change, details how technological changes that were unimaginable at the time of the Founding Fathers are challenging our notions of things like personal vs. private space, freedom of speech and our own individual autonomy.

Wired.com: The Pest Who Shames Companies Into Fixing Security Flaws by Mike Kessler:

Every Christopher Soghoian production follows a similar pattern, a series of orchestrated events that lead to the public shaming of a large entity—Google, Facebook, the federal government—over transgressions that the 30-year-old technologist sees as unacceptable violations of privacy. Sometimes he discovers these security flaws by accident, other times because someone has pissed him off, but mostly because he’s parked at his computer all day looking for security flaws.

When he finds one, Soghoian, a PhD candidate in computer science at Indiana University Bloomington, learns everything he can about it and devises what he sees as a viable solution. Then he alerts the offending party and gives them a chance to fix things, explaining that if they don’t, he’ll go public with his discovery. (OK, sometimes he skips the give-them-a-chance step.) When the inevitable wave of media coverage starts breaking, Soghoian is often the first expert that reporters turn to for sound bites—about stories he has effectively handed them. In the end, the security holes get patched, and Soghoian gets more notoriety and more work. He’s vertically integrated.

. . .

Soghoian managed to record a Sprint Nextel executive boasting that the company had provided user location data to law enforcement agencies some 8 million times. Naturally, Soghoian made the tape public. Stephen Colbert—among others—picked up the story, which was later cited by the Ninth Circuit Court of Appeals in a case concerning police surveillance tactics.

The case is United States v. Pineda-Moreno, 617 F.3d 1120, 1125 (9th Cir. 2010) (Kozinski, J., dissenting from denial of rehearing en banc):

If you have a cell phone in your pocket, then the government can watch you. Michael Isikoff, The Snitch in Your Pocket, Newsweek, Mar. 1, 2010, available at http:// www.newsweek.com/id/233916. At the government’s request, the phone company will send out a signal to any cell phone connected to its network, and give the police its location. Last year, law enforcement agents pinged users of just one service provider–Sprint–over eight million times. See Christopher Soghoian, 8 Million Reasons for Real Surveillance Oversight, Slight Paranoia (Dec. 1, 2009) http://paranoia/dubfire.net/2009/12/8-million-reasons-for-real-surveillance.html. The volume of requests grew so large that the 110-member electronic surveillance team couldn’t keep up, so Sprint automated the process by developing a web interface that gives agents direct access to users’ location data. Id. Other cell phone service providers are not as forthcoming about this practice, so we can only guess how many millions of their customers get pinged by the police every year. See Justin Scheck, Stalkers Exploit Cellphone GPS, Wall St. J., Aug. 5, 2010, at A1, A14 (identifying AT&T and Verizon as providing “law-enforcement[ ] easy access to such data”).

Smartphone app records everything for phone carrier: Huffington Post: Carrier IQ: Researcher Trevor Eckhart Outs Creepy, Hidden App Installed On Smartphones (VIDEO):

A security researcher has posted a video detailing hidden software installed on smart phones that logs numerous details about users’ activities.

In a 17-minute video posted Monday on YouTube, Trevor Eckhart shows how the software – known as Carrier IQ – logs every text message, Google search and phone number typed on a wide variety of smart phones – including HTC, Blackberry, Nokia* and others – and reports them to the mobile phone carrier.

The application, which is labeled on Eckhart’s HTC smartphone as “HTC IQ Agent,” also logs the URL of websites searched on the phone, even if the user intends to encrypt that data using a URL that begins with “HTTPS,” Eckhart said.

The software always runs when Android operating system is running and users are unable to stop it, Eckhart said in the video.

And, if the carrier has it, can the government get everything by search warrant from the carrier?

From theRepublic.com: Ind. GOP lawmakers want welfare recipients tested for drugs, face constitutional hurdle by Tom LoBianco, Associated Press:

Two Indiana Republicans want welfare recipients to pass drug tests before they can receive benefits.

Sen. Jean Leising, R-Oldenburg, and Rep. Heath VanNatter, R-Kokomo, said they have asked statehouse staff to draft bills that they plan to submit when lawmakers return for their 2012 session on Jan. 4.

“I can tell you there are an awful lot of people out there that want this thing done,” Leising said Wednesday.

Other states including Missouri and Florida have pushed for the testing, but measures have run up against Fourth Amendment protections against unreasonable search and seizure. At least one federal judge has placed a testing law on hold.

How obtuse can these guys be? They want drug testing but how about the Fourth Amendment? Doesn’t that matter anymore to the party of “small government”? Apparently not to some Republicans in Indiana. And I have kin in Indiana.

“Predictive Policing” and the Fourth Amendment by Andrew Guthrie Ferguson on the blog of the American Criminal Law Review:

The future of policing just arrived on a computer screen in downtown Los Angeles. As reported by National Public Radio, this month the Los Angeles Police Department’s (LAPD) Real Time Analysis and Critical Response Division has embraced a new computer program offers the holy grail of smart policing: the ability to predict where crime will happen and direct police resources to that location.

Predictive policing is based on the theory that by analyzing past crime patterns and crime data, police analysts can identify future hot spots of crime. Using this predictive modeling, police officers are directed to patrol areas of expected crime for additional police attention. These small hot spots of heightened police presence—in Los Angeles, a 500 foot by 500 foot area (one square block)—are poised to become the centerpiece of a new smart policing strategy in which law enforcement resources are directed to targeted locations before the crime occurs. The initial results are strikingly successful. As reported by the LAPD to NPR, for example, the first week of “predictive policing” reduced crime in certain areas by 50%.

Predicting the impact on constitutional rights in those targeted hotspots may be a bit more complicated. One of the unintended consequences of predictive policing technology may be the erosion of Fourth Amendment protections for individuals in those high crime areas.

Center for Democracy and Technology: Prominent Republicans Endorse ECPA Reform by Mark Stanley:

The right to be protected against unreasonable government intrusions is enshrined in the Constitution’s Fourth Amendment, but Congress needs to act because the courts have lagged in extending privacy protections to new technology. And Congress can adopt reasonable and necessary limits on government power without hindering legitimate law enforcement investigations. Those were key messages of prominent Republicans at a Capitol Hill briefing hosted by The Constitution Project (see video below) last month.

The briefing was called to mark the 25th anniversary of the Electronic Communications Privacy Act (ECPA), the federal statute setting standards for government surveillance of our digital communications. Communications technology has changed dramatically since 1986, and ECPA no longer provides adequate privacy protection. For example, under the statute, the government claims it does not need a judicial warrant to read our stored email or track our movements using our mobile phones.

Given the importance of protecting communications and data stored in the cloud, leading conservative, libertarian and free market advocates have joined in a “strange bedfellows” coalition with liberal groups and major corporations to call on Congress to update the quarter-century-old ECPA. Senator Patrick Leahy (D-VT), Chairman of the Judiciary Committee and one of the original authors of ECPA, himself agrees that ECPA is outdated and has introduced a bill, the ECPA Amendments Act (S.1011), to require a warrant for intrusive surveillance.

Under the Leahy bill, the government would be required to obtain a warrant before accessing the content of our private digital communications. It would also be required to get a warrant before tracking someone’s location in real-time.

The business of taxidermy is highly regulated in South Dakota and has been for 85 years. It satisfies the Burger test. The records inspection here was during normal business hours and did not require a search warrant. State v. Klager, 2011 SD 12, 797 N.W.2d 47 (2011):

[*P21] With respect to the second criterion, at oral argument, Klager conceded that warrantless inspections are necessary to further taxidermy regulation. He must concede the point as the record reflects that because of illegal harvesting, trafficking, and possession of wildlife, unannounced inspections are crucial to effective enforcement of the regulatory scheme.

In a case involving a woman accused of sexually abusing young boys, the search warrant was for sex toys. Officers also knew about contraceptives from interviews. While the search warrant did not include everything seized, once the officers were there, things described by the boys were found, and the “immediately apparent” prong of plain view was satisfied. Granger v. State, 946 N.E.2d 1209 (Ind. App. 2011).*

The affidavit and search warrant authorized seizure of papers from defendant’s residence, and that included the mailbox. State v. Martinez, 71 So. 3d 945 (Fla. 3d DCA 2011).

The DVD of defendant’s stop did not contradict the officer’s testimony because the video started from such a distance that one could not tell whether the defendant was in his own lane or not because of oncoming headlights. The officer’s testimony was enough for the reason to stop. Tiernan v. State, 2011 WY 143, 262 P.3d 552 (2011).*

The search of defendant’s jacket was valid incident to his arrest for safety purposes. State v. Adams, 2011 Ohio 5361, 2011 Ohio App. LEXIS 4390 (7th Dist. October 14, 2011).*

The Florida implied consent statute does not preclude the police from applying for a search warrant for blood in a DUI case. [Particularly since the law favors warrants, this argument was disingenuous at best.] There was probable cause, and the warrant was also valid under the good faith exception. State v. Geiss, 70 So. 3d 642 (Fla. 5th DCA 2011).*

Defendant’s car was searched and meth smoking materials were found and a cutting agent. A motel room key was also found. They went to the motel and found defendant was past his checkout time, so they got access to the room and searched it. He had no expectation of privacy past the check out time, reserving for another day the question of the police detaining somebody so they would be past their check out time to conduct the search. Blades v. Commonwealth, 339 S.W.3d 450 (Ky. 2011).*

Defendant’s failure to use a turn signal was not a traffic offense since it was apparent that no other vehicle could be “affected by” the signal. Therefore, the stop was invalid. People v. Carmona, 124 Cal. App. 3d 819, 195 Cal. App. 4th 1385 (4th Dist. 2011).*

Defendant was stopped for a window tint violation, and he had no ID. When a computer check was run, three arrest warrants were found for him. So, a search incident of the car was valid [without a word as to whether the search incident was otherwise justified under Gant]. State v. Wynn, 2011 Ohio 1441, 2011 Ohio App. LEXIS 1239 (2d Dist. March 25, 2011).* [Note: This is an example of pre-Gant thinking still carrying over from those who still don’t get it. And, Gant is two years old April 21st. I have a case here where the Arkansas Court of Appeals held that the defendant was in “the vicinity” for the search incident doctrine when he was at least 75′ away from the car, but the Arkansas Supreme Court has agreed to review it. Still waiting.]

Plaintiff’s claim that he was unnecessarily thrown around and slammed into a wall during an arrest for criminal contempt for FTA stated enough of a claim to overcome qualified immunity, so the case will have to go to trial. Ansell v. Ross Twp, 2011 U.S. App. LEXIS (3d Cir. March 25, 2011) (unpublished).*

Defendant and two others were pacing in a neighborhood in a suspicious manner. An officer approached to ask questions and for ID, which was not a seizure. When he decided to pat them down, defendant bolted as soon as he was touched. This was reasonable suspicion of wrongdoing when he was finally seized. United States v. Elmore, 2011 U.S. Dist. LEXIS 31461 (S.D. Ga. March 18, 2011).*

The record supports the trial court’s conclusion that the defendant consented to a complete search of the house including e-mails. Commonwealth v. Walorz, 79 Mass. App. Ct. 132, 944 N.E.2d 1061 (2011),* review denied 460 Mass. 1103, 949 N.E.2d 924 (2011).

Stalling the traffic stop to get the drug dog there made the stop unreasonable. State v. Stover, 2010 Mo. App. LEXIS 1683 (December 14, 2010):

Officer Hagerty, however, did not promptly pursue his suspicions by asking for permission to search at that time, nor did he promptly summon the drug dog. Instead, Officer Hagerty continued efforts to interrogate Stover and the passenger as though he and the travelers had nothing better to do than to discuss many things unrelated to the traffic stop.

A DNA match is probable cause to arrest. Myles v. State, 54 So. 3d 509 (Fla. App. 3d DCA 2010).*

Defendant did not really challenge the officer’s testimony that she crossed the fog line three times. She said she was eating a hamburger and didn’t notice. She validly consented during the stop. State v. Malone, 56 So. 3d 336 (La. App. 2d Cir. 2010).*