A cell phone used for text messaging an undercover officer was subject to search upon its seizure at the time of defendant’s drug arrest.There obviously was probable cause for searching it. Hawkins v. State, 307 Ga. App. 253, 704 S.E.2d 886 (2010):

That the text messages were stored in electronic form in Hawkins’s cell phone, rather than in plain view, does not deny the officer the right to discover them. When an officer is authorized to search in a vehicle for a specific object and, in the course of his search, comes across a container that reasonably might contain the object of his search, the officer is authorized to open the container and search within it for the object. See Ross, 456 U. S. at 824 (IV) (“The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.”); see also Gant, 129 SC at 1719 (III) (“[In some cases], the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein [for evidence of the crime of arrest].” (emphasis added)). The pertinent question, in this case, then, is whether a cell phone is enough like a “container” to be treated like one in the context of a search for electronic data that might be stored on the phone. We think it is.

Although it is a matter of first impression for our Court, many other courts have addressed this issue. Most have concluded that, when a search for electronic data that might reasonably be stored in a cell phone is authorized, the cell phone is roughly analogous to an electronic “container” that properly can be “opened” and searched for the data, much as a traditional “container” can be opened to search for tangible objects within. See United States v. Finley, 477 F.3d 250, 260 (III) (B), n.7 (5th Cir. 2007); see also United States v. Wurie, 612 F.Supp.2d 104, 109 (D. Mass. 2009) (“Decisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager technology) trend heavily in favor of finding that the search incident to arrest … exception[] appl[ies] to searches of the contents of cell phones.”) (citations omitted). Federal courts in Georgia are among those that have reached this conclusion. See, e.g., United States v. Cole, 2010 U. S. Dist. LEXIS 82822 at *60-68 (7) (N.D. Ga. 2010) (concluding that the defendant’s cell phone was a “container” for purposes of applying an exception to the warrant requirement since it contained information not readily apparent without manipulating the cell phone itself); United States v. McCray, 2008 U. S. Dist. LEXIS 116044 at *13 (S.D. Ga. 2008) (concluding that “[a] cell phone, like a beeper, is an electronic ‘container,’ in that it stores information that may have great evidentiary value (and that might easily be destroyed or corrupted)”). We are persuaded that, as a general matter, these decisions are correct.

Cell phones and other mobile electronic data storage devices, however, are unlike traditional “containers” in several respects, and for this reason, we must apply the principles set forth in traditional “container” cases to searches for electronic data with great care and caution. A traditional “container” encloses tangible things and, therefore, can hold only a finite number of things and only things as voluminous as the physical volume of the container allows. An electronic “container,” on the other hand, may contain innumerable electronic data of almost infinite variety in a volume having little, if any, relation to the physical size of the electronic “container.” And, unlike a traditional “container,” which simply contains whatever it contains, an electronic “container,” through an Internet browser or other application, may have the capability to reach out and retrieve data from other places during the course of a search.

In addition, as the Supreme Court has recognized, vehicles and the traditional “containers” transported in them “‘seldom serve as … the repository of [tangible] personal effects.’” See Wyoming v. Houghton, 526 U. S. 295, 303 (II) (119 SC 1297, 143 LE2d 408) (1999).

A violation of the Electronic Communications Privacy Act (ECPA) is not subject to the exclusionary rule. United States v. Clenney, 631 F.3d 658 (4th Cir. 2011):

Furthermore, even if Clenney had shown that Fernald violated the ECPA and Virginia law, the exclusionary rule would not be the appropriate remedy for these violations. As noted, “there is no exclusionary rule generally applicable to statutory violations.” United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006); see United States v. Oriakhi, 57 F.3d 1290, 1295 n.1 (4th Cir. 1995). In the statutory context, suppression is a creature of the statute, and its availability depends on the statutory text: “The availability of the suppression remedy for … statutory, as opposed to constitutional, violations … turns on the provisions of [the statute] rather than the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights.” United States v. Donovan, 429 U.S. 413, 432 n.22, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977).

Turning to the statutes at issue, neither provides suppression of the evidence in federal court as a remedy. The ECPA empowers a victim of a § 2703(c) violation to bring a civil action for appropriate relief against violators other than the United States and provides procedures for administrative discipline of federal officials involved. 18 U.S.C. § 2707. There is no mention of a suppression remedy for such a violation, and § 2708 makes clear that “[t]he remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.”

Moreover, Congress has shown that it knows how to create a statutory suppression remedy. It did so in 18 U.S.C. § 2515, which provides for suppression of evidence obtained in violation of the statutes governing wiretaps. Yet it chose not to do so in the context of § 2703(c) violations. Therefore, Congress has made clear [*20] that it did not intend to suppress evidence gathered as a result of § 2703(c) violations. See United States v. Perrine, 518 F.3d 1196, 1202 (10th Cir. 2008); United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir. 2003).

A made-up conclusion in a search warrant affidavit was material, and false under Franks, and obviously not in good faith, and Herring required exclusion. United States v. Brown, 631 F.3d 638 (3d Cir. 2011):

As we see it, the major flaw identified by the District Court is not negligence in reviewing the evidence but rather Smith’s conclusion “that non-existent evidence actually existed, and, more importantly, [his decision to take] the affirmative step of purposely incorporating the non-existent evidence into the affidavit.” 647 F. Supp 2d at 513. The existence of contradictory evidence highlighted the problem with Smith’s affidavit, but (according to the District Court) Smith’s reckless disregard for the truth occurred when he made up Paragraph 7(c) out of whole cloth. Such a fabrication, in the District Court’s view, would justify invocation of the exclusionary rule regardless of whether or not police are in possession of evidence giving it the lie.

We agree with the District Court’s opinion, so understood. The underlying theory is that, ordinarily, a person does not believe something to be true (let alone swear in an affidavit that it is “true and correct to the best of my knowledge, information, and belief”) without an affirmative justification. That justification might come in the form of first-hand observation, or from information provided by a third party, or from some textual source, but we do not take seriously someone who claims that X is true but cannot provide any reason for thinking it so. In other words, a reasonable person’s default position is to doubt that a proposition is true until there are grounds to believe it. The absence of sufficient grounding to support an averment therefore constitutes an “obvious reason[] for doubt” under Wilson, 212 F.3d at 788, allowing the court to infer that an affiant acted with reckless disregard for the truth. Cf., e.g., Beard v. City of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994) (observing that a “factfinder may infer reckless disregard from circumstances evincing ‘obvious reasons to doubt the veracity’ of the allegations”) (quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984) (quoting St. Amant, 390 U.S. at 731)). …

The fact that a statement is a fabrication or a figment of a speaker’s imagination is sufficient reason for finding that it was not made in good faith—i.e., that it was made with (at least) reckless disregard for the truth—even if the speaker testifies that he believed the statement to be true. Although the District Court did not clearly articulate this epistemological conception of recklessness, such a theory lies at the heart of its ruling.

A road construction flagger saw a possible drunk driver and stopped him. This was a valid citizen’s arrest. State v. Schubert, 2010 MT 255, 358 Mont. 286, 244 P.3d 748 (2010).*

Defendant had a reasonable expectation of privacy in his hotel room as a place where a person could “retreat” as a “zone of privacy,” and the police had no reason to believe that the person granting consent to enter the room had apparent authority to do so. Commonwealth v. Lopez, 458 Mass. 383, 937 N.E.2d 949 (2010), rev’g Commonwealth v. Lopez, 74 Mass. App. Ct. 815, 911 N.E.2d 214 (2009).

Because state troopers have authority to execute search warrants statewide, there is no requirement that a sheriff be along for the search to validate it. State v. Walker, 330 S.W.3d 122 (Mo. App. 2010).*

The suppression court had the discretion to revisit the grant of the suppression order within thirty days, but it violated state law when it considered extrinsic evidence outside of the “four corners rule” to validate the search. Here, the unanswered question was where was a bag of trash: inside the garage or outside? The affidavit did not answer that. Commonwealth v. James, 2010 PA Super 203, 12 A.3d 388 (2010):

We find that the trial court violated the four corners rule by considering extrinsic evidence that was not contained in the affidavit of probable cause to determine the validity of the search warrant. Appellant was not challenging the trash pull itself, but rather the existence of probable cause on the face of the affidavit. Thus, the question for the trial court was whether sufficient probable cause existed within the four corners of the affidavit to support the magistrate’s decision to issue the search warrant. See Pa.R.Crim.P. 203(D); Coleman, supra. Pa.R.Crim.P. 203(D) prohibits a reviewing court from hearing supplemental testimony on what it deems to be a “second constitutional issue,” (N.T., 10/22/08, at 4), and then using that evidence to determine whether sufficient probable existed for a magistrate to issue a search warrant. Indeed, this Court has specifically rejected the use of extrinsic evidence in order to salvage a deficient warrant, see Commonwealth v. Vaughan, 2001 PA Super 374, 789 A.2d 261, 266 (Pa. Super. 2001) (“While … extrinsic evidence might be relevant to our analysis, we must defer to our Supreme Court to so state unequivocally and will not open the door to this method of salvaging a deficient warrant without that Court’s explicit guidance.”).

Accordingly, we find that the trial court violated Pa.R.Crim.P. 203(D) at the October 22, 2008 suppression hearing by soliciting and considering testimony outside the four corners of the affidavit of probable cause in the course of deciding whether the search warrant should have been issued. Accordingly, we vacate the order denying Appellant’s motion to suppress and the judgment of sentence and remand for proceedings consistent with this opinion.

The inventory search of defendant’s car was without any justification, and it was apparent that the officers were seeking to search the car rather than inventory it. “Defendant claims that after they called their own tow, the officers said words to the effect of ‘once he gets here, we’ll be able to search the car.’” At the minimum, the police had a dual motive to tow and search. United States v. Cline, 2011 U.S. Dist. LEXIS 22469 (E.D. Cal. February 18, 2011):

The Government admits that the police officers could not point to any specific criminal activity by the Defendant which gave the officers probable cause to conduct a warrantless search of the car. Nor does the Court find persuasive the Government’s argument that dual motives for the inventory search existed. Specifically, the Government argues that “searching the vehicle for investigative purposes was NOT [the police officers’] primary purpose in inventorying the car. If anything, it was a secondary motive.” … The facts of this case do not support this argument. As noted above, the officers did not search Defendant’s car in accordance with state law and department procedures. The impounding and inventory of Defendant’s car cannot be explained as a “common practice” given that state law and police policies authorize the seizure and inventory of a man’s car in limited circumstances. The Government bears the burden of proving that the police officers lawfully inventoried the Defendant’s car. Its arguments and evidence fail to carry that burden. Accordingly, the evidence found in Defendant’s car must be suppressed.

The officer was parked at the jail with an OUI arrestee in his car, and defendant came to the jail, parked, and walked up and talked to him about the arrestee and being there to pick her up. The officer could smell intoxicants, and asked for his DL. It turned out the DL was suspended, and that led to defendant’s arrest. This was a voluntary encounter. State v. Trevarthen, 2011 Ohio 1013, 2011 Ohio App. LEXIS 848 (11th Dist. March 4, 2011).*

CI provided PC for the search of defendant’s car: (1) CI had a strong track record of 18 tips leading to 12 search warrants, and (2) he provided significant predictive details of what defendant would be doing that night that proved correct. Byrd v. Commonwealth, 57 Va. App. 589, 2011 Va. App. LEXIS 78 (February 1, 2011).*

Defendant succeeds in a Franks challenge to a search warrant for a grow operation. The officer said that defendant was recently moved to the property and the electric usage doubled. In fact, the defendant moved in after the doubling first occurred. Rewriting the affidavit to show the importance of the missing information, probable cause is completely undermined. United States v. Morgan, 2011 U.S. Dist. LEXIS 27694 (N.D. Okla. March 16, 2011):

This example demonstrates that, with the omitted information included, the statement regarding the doubled electrical usage is wholly irrelevant and incapable of serving as evidence of Defendant’s alleged illegal activity. The statement cannot corroborate Ray’s statement because Defendant could not have been the cause of the increased electrical usage since he moved in two months after the increase occurred. Without the corroboration provided by the invalidated statement, probable cause to search 1525 East 45th Place is vitiated. The omitted statement is therefore material to the finding of probable cause under Stewart and Franks.

. . .

Similarly, this Court holds that because of the highly relevant nature of when Defendant moved into the home, the omission in this case was at least made in reckless disregard of the truth. Deputy Ramsey testified that he was, and remains, unaware of when Defendant moved into 1525 East 45th Place, and that he assumed the July 2009-July 2010 time frame for the purported doubling of electrical usage provided by his informant was relevant to Defendant. … Deputy Ramsey knew that the doubling of electrical usage was critical to the probable cause analysis, as he admitted that he would not have sought a search warrant without that information. … Nevertheless, Deputy Ramsey testified that he remained ignorant of Defendant’s actual relocation date, despite the fact that he knew from Gordan Ray’s testimony that Defendant had moved relatively recently. This Court finds that, under the circumstances described in the hearings, Deputy Ramsey proceeded with reckless disregard for the truth when he submitted a warrant affidavit omitting the date on which Defendant moved into the residence to be searched. The information was “clearly critical” under the standard set forth in Jacobs because a material element of the affidavit would have been undermined by its inclusion and probable cause would not have existed otherwise. Defendant has therefore proven by a preponderance of the evidence that the omission was made with reckless disregard to the truth. Furthermore, as previously discussed, such omission was material to the finding of probable cause. Therefore, Franks requires that the search warrant be voided and the fruits of the search excluded. See Franks v. Delaware, 438 U.S. 154, 156 (1978).

In Escape from New York, an op-ed piece on changing demographics in NYC, a reminder of stop and frisk in the City

According to a report in The Times last year, there were a record 580,000 stop-and-frisks in the city in 2009. Most of those stopped (55 percent) were black (a large portion were also Hispanic), most were young and almost all were male. For reference, according to the Census Bureau, there were about only 300,000 black men between the ages of 13 and 34 living in the city that year. A mere 6 percent of the stops resulted in arrests.

The Times article revealed that in one eight-block area of an overwhelmingly black neighborhood in Brooklyn, the police made 52,000 stops in just four years, an average of nearly one stop for each resident each year.

That article? A Few Blocks, 4 Years, 52,000 Police Stops.

Defendant was seen hanging out around a market known for dealing in stolen property before it opened for the day. When the officer approached the defendant to ask questions, he fled, and that created reasonable suspicion. State v. Thomas, 2011 Ohio 1191, 2011 Ohio App. LEXIS 1026 (10th Dist. March 15, 2011).*

[Note: Yesterday was this post: LA: Flight easily most important factor in totality. While SCOTUS said in Wardlow that unprovoked flight alone is not enough to be reasonable suspicion, as a practical matter, it doesn’t take much more to make it so. There it was nervousness, but nervousness how, and in a “high crime area.” So, the standard is “flight plus,” but “flight plus” what?]

Police officers entered the house with an arrest warrant for the appellant. They were given permission to search by a co-tenant. From a hallway with a flashlight they could see a box of ammunition in defendant’s room. Appellant denied permission to search the room, so a search warrant was obtained. The view from the hallway was a valid plain view. State v. Jackson, 2011 Ohio 1225, 2011 Ohio App. LEXIS 1058 (5th Dist. March 14, 2011).*

On Blog of the Legal Times: DOJ Weighs Supreme Court Challenge in GPS Surveillance Dispute in the Maynard case:

Justice Department lawyers continue weighing whether to ask the U.S. Supreme Court to pick up a controversial decision involving law enforcement’s warrantless use of GPS devices to track criminal suspects.

I assume they’re going to file a cert. petition.

Deputy: Strip Search Finds Crack Between Buttocks / Traffic Stop Leads To Multiple Charges by Carla Field, WYFF4.com Managing Editor, listed on HuffPo as the funniest headline of the day.

Immigration officers have broad powers to detain to interrogate suspected aliens, but Terry still applies. United States v. De La Cruz, 2011 U.S. Dist. LEXIS 25608 (D. Neb. March 11, 2011):

Immigration officers are authorized, without a warrant, “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States …” and “to arrest any alien in the United States, if [they have] reason to believe that the alien so arrested is in the United States in violation of any [law or regulation involving the admission, exclusion, expulsion or removal of aliens] and is likely to escape before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357(a)(1) & (2) (emphasis added); United States v. Quintana, 623 F.3d 1237, 1240 (8th Cir. 2010). Immigration officers also have the power, without a warrant, to make arrests

for any felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony, if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest.

8 U.S.C. § 1357(a)(5)(B); see 8 C.F.R. 287.5(c)(4). The authority granted to immigration officers is not unbounded, but is subject to the principles of the Fourth Amendment as it relates to searches and seizure. United States v. Rodriguez-Franco, 749 F.2d 1555, 1559 (11th Cir. 1985); Rajah v. Mukasey, 544 F.3d 427, 441 (2d Cir. 2008) (noting that the Fourth Amendment provides protection against random or gratuitous questioning related to an individual’s immigration status).

Under the interrogation component of the statute, immigration officers “may make forcible detentions of a temporary nature for the purposes of interrogation under circumstances creating a reasonable suspicion, not arising to the level of probable cause to arrest, that the individual so detained is illegally in this country.” Au Yi Lau v. INS, 445 F.2d 217, 223 (D.C. Cir. 1971) (applying Terry standards). Immigration authorities may not detain persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975) (rejecting the argument that a person’s apparent Mexican ancestry alone justifies belief that he or she is an alien and satisfies the requirement of the statute allowing interrogation and arrests of aliens). A plain reading of 8 U.S.C. § 1357(a)(1) requires the government to show that immigration officials believe that a person is an alien before questioning him. Flores-Sandoval I, 422 F.3d 711, 714 (8th Cir. 2005); see also 8 C.F.R. § 287.8(b)(2) (an immigration official may briefly detain a person for questioning if he “has a reasonable suspicion, based on specific articulable facts, that the person being questioned is engaged in an offense against the United States or is an alien illegally in the United States”).

Defendant had no reasonable expectation of privacy in a police interview room where he was left alone with his wife and the police recorded it. He knew he was the focus of an investigation at that point. The room also had mirrors, so he had to expect people would be watching, too. The court also relies on conversations surreptitiously recorded in police cars. State v. Clemons, 2011 Ohio 1177, 2011 Ohio App. LEXIS 1015 (7th Dist. March 9, 2011).*

[*P68] As appellant recognizes, there are many out-of-state cases where courts have found that there was no reasonable expectation of privacy in a police interrogation room. See, e.g., Mai v. Horel (N.D. Cal. 2009), 2009 U.S. Dist. Lexis 19322, *7; Pestano v. State (Fla. 2008), 980 So.2d 1200, 1202; Dickerson v. State (2008), 292 Ga. App. 775, 779, 666 S.E.2d 43; Belmer v. Commonwealth (2001), 36 Va. App. 448, 461, 553 S.E.2d 123; State v. Strohl (1999), 255 Neb. 918, 925-926, 587 N.W.2d 675; Larzelere v. State (Fla. 1996), 676 So.2d 394, 405; Ahmad v. Superior Ct. (1989), 215 Cal.App.3d 528, 536, 263 Cal. Rptr. 747; In re Joseph A. (1973), 30 Cal.App. 3d 880, 886, 106 Cal. Rptr. 729. See, also, State v. Owens (S.D. 2002), 2002 SD 42, 643 N.W.2d 735, 754 (finding no reasonable expectation of privacy of detainee in telephone conversation with mother from police interrogation room due to court’s general security concerns).

Defendant argued that there was no probable cause to believe that the place of the probation search was his, despite the fact that he faxed in a change of address notice to probation that was where he moved and the fact his argument would defeat his standing. United States v. Combs, 2010 U.S. Dist. LEXIS 141966 (D. Nev. December 23, 2010).*

Officers had reasonable suspicion to stop defendant’s van in a parking lot for a suspected drug deal based on informant’s information and the actions of the van driver. State v. Ruiz-Arias, 2011 Ohio 1198, 2011 Ohio App. LEXIS 1022 (5th Dist. March 10, 2011)*; State v. Frias-Carvajal, 2011 Ohio 1197, 2011 Ohio App. LEXIS 1033 (5th Dist. March 8, 2011).

Roger Roots, The Originalist Case for the Fourth Amendment Exclusionary Rule, 45 Gonzaga Law Review 1 (2010).

Abstract:

The Fourth Amendment exclusionary rule has been the law of the land in all federal jurisdictions since 1914 and in all state jurisdictions since 1961. Yet critics continue to question the rule’s constitutional pedigree. Generations of conservative jurists and scholars have called for the rule’s abolition on “originalist” grounds. These scholars argue that the rule is of recent vintage, unsupported in the Fourth Amendment’s text, and disloyal to the Amendment’s original intent. In this paper, the author argues that exclusion is actually an ancient remedy, widely applied by courts in various contexts since the dawn of American history. Contrary to the writings of anti-exclusion scholars, the basic framework for the exclusionary rule was well established in the regular practices of Founding-era judges and lawyers. Indeed, the idea that exclusion or exclusion-like remedies were required by the search and seizure protections of the Founding period almost certainly predates by many years the earliest American holdings opposing exclusion.

For the “originalists” on SCOTUS, this could be important, if they will pay attention.

Hat tip to Volokh Conspiracy.

The trial court found a Franks violation and purged the information from the affidavit. The remainder failed to show nexus and probable cause for the premises, and the good faith exception did not save the warrant. Commonwealth v. McClain, 2011 Ky. App. LEXIS 44 (March 11, 2011):

We agree with the circuit court and the Defendant that the affidavit, purged of McClain Jr.’s statement, failed to establish a nexus between the Defendant’s residence and the evidence of drugs and drug trafficking Sheriff Boggs was seeking. “To justify a search, the circumstances must indicate why evidence of illegal activity will be found ‘in a particular place.’ There must, in other words, be a ‘nexus between the place to be searched and the evidence sought.’” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (citing United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)). Sheriff Boggs found only a small amount of drugs on McClain Jr.’s ATV and did not find any indication of drug trafficking, despite the reports he had received. Furthermore, the Defendant’s residence on Water Tower Road was some distance away from where McClain Jr. was stopped. Finally, the address McClain Jr. provided to Sheriff Boggs was not the Water Tower Road address, but an address on East Main Street in Maysville. Accordingly, we agree with the circuit court’s holding that the search warrant, when purged of the false statement, failed to establish the requisite probable cause to search the Defendant’s residence based upon the totality of the circumstances.

. . .

We agree with the Defendant and the circuit court that Sheriff Boggs did not act in good faith when he included misleading information in the search warrant affidavit. His reliance on that information cannot be deemed objectively reasonable, despite the Commonwealth’s argument that it was reasonable because it was based on his interpretation of the conversation he had with McClain. The fact remains that Sheriff Boggs chose to include misleading information in his affidavit, and he cannot now rely upon his interpretation of McClain Jr.’s words to form a good faith basis for his reliance on the statement in the affidavit he knew was misleading. Accordingly, the circuit court correctly declined to apply the Leon good faith exception in this case and did not abuse its discretion in granting the Defendant’s motions to quash the search warrant and to suppress evidence.

Protective weapons search of a locked glove compartment that produced two guns was valid under Michigan v. Long (affirmance by an equally divided court). Commonwealth v. Micking, 2011 PA Super 45, 2011 Pa. Super. LEXIS 59 (March 10, 2011)*:

For affirmance:

The issue before us is properly defined as whether the protective search of the glove box was fueled by reasonable suspicion that Appellant may have been armed and dangerous. We find as a matter of law that the following facts supported Officer Tamulis’s articulated concern for his and his partner’s safety and sufficiently established reasonable suspicion to support a weapons search. First, Appellant was extremely nervous, shaking and trembling, and his voice was quivering. There was no apparent reason for Appellant’s extreme level of concern given the minor nature of the traffic infraction. As we noted supra, this type of conduct displays consciousness of guilt. Additionally, our case law provides that a defendant’s display of excessive nervousness is a factor supporting the existence of reasonable suspicion. See, e.g., Commonwealth v. Rogers, 849 A.2d 1185 (Pa. 2004) (fact that defendant’s hands were shaking and he evidenced extreme nervousness, together with other factors, provided police with reasonable suspicion that he was committing a crime). Second, roadside traffic stops are fraught with danger for police officers. As noted by the Supreme Court: “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.” Long, supra at 1048 n.13. Third, it was approximately 8:00 p.m. on a November night, and the police officers faced a greater risk that Appellant could reach a weapon inside the car without being easily detected. See In re O.J., 958 A.2d 561 (Pa.Super. 2008) (en banc).

We further observe that both Morris and Long support the opening of the locked glove compartment because it could have contained a weapon. Consider the following scenario: police limited their search to the passenger compartment and did not examine the glove compartment. Due to Appellant’s suspended license, the vehicle was to be towed, and the police awaited the arrival of the tow truck, which, in this case, took thirty minutes. Appellant, who would not have been under arrest since the weapons were not discovered, could have possessed another key or some other means to access the locked compartment and the loaded weapons contained therein. Since it was nighttime, and since he was free to roam the area as he was not in custody, Appellant could have retrieved a gun in a surreptitious manner and used it on Officers Tamulis and McDonald.

We do not expect, nor do we believe Pennsylvania jurisprudence requires, police officers, whose trained professional judgment has been placed on alert by circumstances, to expose themselves to this danger. The stakes are too high; the infringement is too narrow; the risk is too great. Indeed, the protective search undertaken in this case may well have saved their lives that night.

Opinion for reversal:

While we fully agree with the discussion in the Opinion in support of affirmance addressing the need for police officers to be protected in the line-of-duty, our review of the record regretfully compels us to register our dissent from the portion of the decision affirming the suppression court’s conclusion that Officer Tamulis was permitted to conduct a protective weapons search of the locked glove box. Thus, for the reasons that follow, we would reverse.

. . .

However, our review of the record reflects that the facts presented at the suppression hearing do not support the trial court’s conclusion. As the Opinion in support of affirmance indicates, “[t]he issue before us is properly defined as whether the protective search of the glove box was fueled by reasonable suspicion that Appellant may have been armed and dangerous.” Slip Op. at 14. Upon review of the transcripts, there is no doubt that Officer Tamulis failed to ask Appellant to exit the vehicle prior to the search of the passenger compartment and the glove box. Likewise, our review further indicates that, contrary to the statement of the trial court, Officer Tamulis failed to conduct a patdown search of Appellant for weapons. Rather, Officer Tamulis stated simply that he conducted a “protective pat down of the area” for his and his partner’s “safety.” N.T., 2/10/08, at 7. Thus, the officer failed to establish that he had a reasonable belief based on specific articulable facts, which would have entitled him to conduct a search of the portions of the passenger compartment of the vehicle in which a weapon could be placed pursuant to Morris.

Defendant and his wife got into a domestic dispute, and she called the police to tell them about his illegal firearms. They came to the scene and she consented to the search. He was there and vociferously objected. The police searched anyway. The search violated Randolph. Moreover, the defendant’s objections put the police on notice that she probably did not have apparent authority to consent. United States v. Tatman, 397 Fed. Appx. 152 (6th Cir. 2010).*

The central argument here was whether there was a conditional plea or not. There was a letter defense counsel had that was not in the file and the USAO could not corroborate that talked about reserving the search issue for appeal. It was not in the plea agreement. “On this record, we can not even determine if the district court was ever made aware of the disputed letter. We would therefore ordinarily remand this matter to the district court so that it could make findings of fact that would resolve the issue of whether there was an agreement to allow Davis to enter a conditional plea so that he could pursue his Fourth Amendment claim on appeal. Here, however, a remand is not necessary because Davis’s Fourth Amendment claim is frivolous.” United States v. Davis, 393 Fed. Appx. 895 (3d Cir. 2010).*

In a fascinating opinion, a USMJ issues an order (free copy here in a blog) that probable cause must be shown for tracking information from a cell phone. The order shows how the legal landscape has changed in recent years. In re The United States for an Order Authorizing the Release of Historical Cell-Site Info., 736 F. Supp. 2d 578 (E.D. N.Y. 2010):

The United States seeks an order pursuant to 18 U.S.C. § 2703(c)-(d) (the “Stored Communications Act” or “SCA”), directing Sprint Nextel to disclose, with respect to all calls and text messages to and from a certain mobile telephone over a period of 58 days, all “recorded information identifying the base station towers and sectors that received transmissions from” that telephone. Docket Entry (“DE”) 1 at 1. The government has proffered “specific and articulable facts showing that there are reasonable grounds to believe that the information sought is relevant and material to an ongoing criminal investigation.” Id. ¶ 2. The government also takes the position that the proffered facts establish “probable cause” sufficient to permit the issuance of a warrant for historical cell-site information pursuant to Federal Rule of Criminal Procedure 41, id. at 2 n.1, but it nevertheless has expressly declined to seek such relief, preferring instead to rely exclusively on the SCA. For the reasons set forth below, I deny the government’s application on the ground that the Fourth Amendment requires the government to obtain a warrant, based on a showing of probable cause on oath or affirmation, in order to secure the information it seeks.

. . .

What is the significance of the conclusion that a cell phone acts as a tracking device when it transmits information about its location? The significance is that if cell phones squarely meet the definition of “tracking devices” it is time to stop treating them as something else, at least when the Government seeks to use them to track a person’s movements. Rule 41 contains express procedures governing tracking device warrants, and those procedures need to be followed with regard to future requests for CSLI. This means several things. First, in past applications, the Government has taken the position that it has no obligation to provide notice of the tracking to the cell phone user, as its notice obligation was met by service of the order on the telecommunications provider from whom it received the CSLI. This does not meet the requirements of Rule 41, which provides that when a tracking device warrant is authorized, “the officer must serve a copy of the warrant on the person who was tracked or whose property was tracked.” FED. R. CRIM. P. 41(f)(2)(C). 19 Thus, warrants seeking CSLI must meet this obligation of Rule 41. Similarly, a return must be filed, as with all other warrants. FED. R. CRIM. P. 41(f)(2)(B).

[I estimate that there were about 20 posts on other websites about this case in the last two days. I had to get to court yesterday and did not get to post until today.]

The government’s failure to provide a link between an IP address to defendant’s alleged access to child pornography, otherwise sufficiently shown for probable cause under Gates, was enough for the warrant to at least satisfy the good faith exception. United States v. Vanbrackle, 397 Fed. Appx. 557 (11th Cir. 2010):

We agree with the district court that the good faith exception to the exclusionary rule applies to the affidavit underlying the search warrant of Vanbrackle’s residence. First, the affidavit was not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” See Martin, 297 F.3d at 1313. To the contrary, it was reasonable for Agents Blackwell and Witrick to believe that the information contained in the affidavit was sufficient to support a finding of probable cause that evidence of the unlawful receipt of child pornography would be found at Vanbrackle’s residence. The facts alleged within the search warrant affidavit indicate that (1) screen names registered to Vanbrackle at 253A Little River Lane, Rabun Gap, Georgia, were implicated in four other cases involving the transmission or solicitation of child pornography over the internet; (2) Vanbrackle continued to reside at 253A Little River Lane, Rabun Gap, Georgia; (3) Vanbrackle was believed to be a collector of child pornography based on his activities of sending and receiving child pornography and requests to exchange pictures of skimpily dressed children with other AOL users; and (4) the tendency of collectors of child pornography, such as Vanbrackle, was to retain and store images of child pornography on their computers. Further, at the suppression hearing, Jim Persinger, a computer forensic cybercrimes specialist, testified that people who collect child pornography do not normally download child pornography at a public place, but typically view it at their residence or place of employment.

While Vanbrackle argues that this evidence failed to establish that unlawful e-mail transmissions were sent or received by him at his residence, he provides no legal citation to support his contention that IP address information is required to establish a link between an individual’s electronic transmission of child pornography and that same individual’s personal residence. … Although IP address information could have definitively shown that a computer used at Vanbrackle’s home received the images in question, …, Agent Blackwell was only obligated to provide enough facts to show a fair probability that evidence of a crime would be found at Vanbrackle’s residence. Illinois v. Gates, 462 U.S. 213, 235, 103 S. Ct. 2317, 2330, 76 L. Ed. 2d 527 (1983) (stating that “only the probability, not a prima facie showing, of criminal activity is the standard of probable cause (quotation omitted)). Agent Blackwell satisfied this obligation ….

After a sex offender was able to get into an elementary school and expose himself to a child, the school district implemented a policy where anybody from outside who was accessing secure areas of the school was required to show a picture ID for scanning. This was not an unreasonable search. Meadows v. Lake Travis Indep. Sch. Dist., 397 Fed. Appx. 1 (5th Cir. 2010)*:

We also agree with the district court and adopt its reasoning regarding the other constitutional violations alleged by the Meadowses. The Meadowses have not shown in any meaningful way that they were denied procedural due process or that any restriction of Regulation FFF denies their First Amendment rights. Further, the Meadowses’ claims of the violation of their right to privacy fail because they have not shown that they have a right to privacy in their driver’s licenses, nor can they. But, even if the information were constitutionally protected, the state has erected adequate safeguards to ensure the privacy of the information. Their Fourth Amendment claim similarly fails. Even if this were to be construed as a search or a seizure, we would hold it to be a reasonable one.

What about policies requiring showing an ID to get into the courthouse or into the secure area at an airport? Is that a search? This school district does more with the information than do CSOs or TSA because they at least write it down. Still, not a search to identify yourself in these situations.