Suspicion of illegal drug activity alone does not justify handcuffing the defendant. The fact that drugs and weapons may go hand in hand in some situations does not elevate this situation to justifying handcuffing. State v. Pickens, 2010 WI App 5, 323 Wis. 2d 226, 779 N.W.2d 1 (2009):

P31 Notably, the State does not develop an argument that the suspicion of illegal drug activity alone justified handcuffing Pickens. In the absence of full briefing, we choose not to decide the issue. We note, however, that our research indicates that we would likely reject such an argument. Although courts have frequently observed that illegal drugs and weapons go hand in hand, reasonable suspicion of drug activity is not, by itself, generally a sufficient indicator of dangerousness to justify the level of restraint police imposed on Pickens. See United States v. Acosta-Colon, 157 F.3d 9, 19 (1st Cir. 1998) (generalized reasonable suspicion related to drug trafficking not enough to establish that handcuffing was reasonably measured response to actual safety concerns); United States v. Melendez-Garcia, 28 F.3d 1046, 1052-53 (10th Cir. 1994) (acknowledging that “[d]rugs and guns and violence often go together,” but concluding that “the naked fact that drugs are suspected will not support a per se justification for use of … handcuffs in a Terry stop”).

P32 The use of handcuffs or other restrictive measures does not necessarily render a temporary detention unreasonable, nor does it necessarily convert that detention into an arrest. See State v. Vorburger, 2002 WI 105, P64, 255 Wis. 2d 537, 648 N.W.2d 829. However, as we have explained, such measures generally are reasonable only when particular facts justify the measure for officer safety or similar concerns. See 4 WAYNE R. LAFAVE, SEARCH & SEIZURE 9.2(d), at 310-13 (4th ed. 2004).

P33 In sum, we conclude that the State failed to show that the level of restraint used to detain Pickens was reasonable because the State points to no specific, articulable facts that justify handcuffing and securing Pickens in a squad car. In the absence of any other developed argument supporting admission of evidence obtained from Pickens in the parking lot, we conclude that that evidence must be suppressed. 5

5 A number of courts have concluded that police exceeded the permissible scope of a temporary detention in circumstances that we find at least as compelling as those here. See United States v. Richardson, 949 F.2d 851, 856-58 (6th Cir. 1991) (suspect was approached by four police officers, informed he was the subject of a drug investigation, and briefly questioned; after he would not consent to a search, the valid stop became unlawful when police proceeded to secure him in back of police car and continue questioning); United States v. Neatherlin, 66 F. Supp. 2d 1157, 1162 (D. Mont. 1999) (when officer had reasonable suspicion of illegal border crossing and made stop in remote area in the middle of the night, there were reasonable concerns for officer safety, but handcuffing suspect and placing him in officer’s vehicle nonetheless exceeded the boundaries of investigatory detention), aff’d, 243 F.3d 551 (9th Cir. 2000) (Nos. 00-30007 and 00-30020); Cocke v. State, 889 So. 2d 132, 133-35 (Fla. Dist. Ct. App. 2004) (leaving suspect in handcuffs and placing him in squad car for thirty to forty-five minutes transformed stop into de facto arrest when police had found no weapons after conducting pat down, suspect did not resist or act belligerent, and officer expressed no other reason to be concerned for safety); State v. Pannell, 127 Idaho 420, 901 P.2d 1321, 1325-26 (Idaho 1995) (even when there was “some evidence” that suspect “might have posed a threat to the officer’s safety,” handcuffing suspect and placing him in patrol car exceeded level of force justified for an investigatory detention when pat down revealed no weapons and suspect was fully compliant at all times).

A probation search is an administrative search, and it only need substantially comply with the administrative requirements to be reasonable. Pendleton v. State, 990 A.2d 417 (Del. 2010):

In this appeal, we consider the validity of evidence seized during an administrative search conducted after a probation officer telephonically conferred with his supervisor but failed to complete a tangible, paper copy of a pre-search checklist. Ezra Pendleton contends that absent exigent circumstances, probation officers should strictly comply with the Department of Corrections’ guidelines and failure to do so here necessitates a reversal of his Possession with intent to Deliver Cocaine conviction. In Fuller v. State, we acknowledged that substantial compliance with departmental guidelines alone–not absolute compliance–sufficiently withstands review of an administrative search. Here, we find substantial compliance. Therefore, we must AFFIRM.

. . .

McClure’s failure to complete the technical requirements does not negate the importance of his discussion of the five factors with Allfather. Although he did not physically fill out the pre-search checklist, McClure’s conduct fulfills the spirit of the guidelines. In analyzing the factors, rationally assessing the facts known to him, and obtaining supervisory approval, McClure ensured that the Department of Corrections had sufficient grounds before searching Pendleton’s home.

Defendant’s probation search of his house was with reasonable suspicion after surveillance. Murray v. State, 991 A.2d 18 (Del. 2010).*

A deputy detained defendant after observing him in the front yard of a single family home with a handgun protruding from his pants pocket. The only suggested suspected criminal activity was defendant’s carrying of a loaded firearm in a public place. The court held that the state failed to establish that the fenced front yard was a public place. Therefore, an officer lacked a reasonable suspicion, and the detention violated the Fourth Amendment. The evidence was that defendant’s brother resided at the house, and defendant was lawfully on the premises. The front yard was completely surrounded by wrought iron, wood, and wood-and-brick fencing that was four and one-half to five feet high. The only access to the front door was through the single gate in the fence. The area was not rendered public by visibility to the public or the fact that the gate was not locked when deputies entered. Further, the fact that gang members may have frequented the locale did not support a conclusion that the public could enter without challenge, given the documented territorial nature of criminal street gangs. People v. Strider, 177 Cal. App. 4th 1393, 100 Cal. Rptr. 3d 66 (2d Dist. 2009).

Search warrant for house would automatically permit search of a detached garage for the house, but here it was specifically included anyway. Thomas v. State, 300 Ga. App. 265, 684 S.E.2d 391 (2009).*

Defendant’s stop of his rental car was justified because the temporary tag in the back tinted window was not visible from behind the car. Wade v. State, 33 So. 3d 498 (Miss. App. 2009), rehearing denied by Wade v. State, 2010 Miss. App. LEXIS 211 (Miss. Ct. App., Apr. 27, 2010).*

The CI’s statements and the officers’ observations gave nexus between defendant’s drug dealing and his premises to justify a search of the premises. Commonwealth v. Rodriguez, 75 Mass. App. Ct. 290, 913 N.E.2d 916 (2009):

The presence of packaged inventory has multiple significance. Inventory requires storage. A residence is a far more secure storage site than an automobile. Packaged inventory also indicates enterprise. An enterprise requires instrumentalities and generates records. They are far more likely to be located in a residence than in an automobile. The value and readily fungible nature of cocaine packaged for sale make it unlikely that Hind would store his inventory in his vehicle.

The stop of defendant’s van was with reasonable suspicion because defendant’s “van [and occupants] matched the BOLO description in every detail” of robbery and murder suspects. The seriousness of the crime under investigation justified handcuffing him and putting him in a police car. In fact, “[t]he uncanny fact that Avery’s van exactly matched the detailed description of the vehicle that fled the scenes of the robberies and murder would establish ‘a nexus between the place to be searched and the evidence sought.’ ….” The search was valid as a search incident or with probable cause. United States v. Avery, 2010 U.S. Dist. LEXIS 7190 (W.D. Tenn. January 28, 2010).*

Lack of nexus to find evidence at the place to be searched under the search warrant was not fatal to the search warrant and application of the good faith exception. United States v. Carney, 683 F. Supp. 2d 513 (W.D. Ky. 2010):

The facts provided in the affidavit, while not sufficient for probable cause, were not so vague as to be conclusory or meaningless. See Carpenter, 360 F.3d at 598. The affidavit was not totally lacking in facts connecting the vehicle and the apartment to the criminal activity. The affidavit clearly stated that Carney was identified as the individual who was driving the vehicle and presented the counterfeit currency at the Circle K. The affidavit stated that Carney was using the 4902 Saddlebrook Ct. #1 address as his personal address for Kentucky court records and Kentucky Probation and Parole records. Essentially, there was evidence that Carney and Williams attempted or did pass counterfeit money. Both were seen driving the same car immediately after the transactions. The car was parked in front of the address that Carney listed as his address. These facts are sufficient to establish the minimal nexus required for the good faith exception to be applicable; a well-trained officer would not have known the search was illegal, particularly in light of the fact the warrant was presented to and signed by a state circuit court judge. The exclusionary rule will not bar the admission of the evidence found as a result of the search warrant.

Government’s inability to show who conducted the patdown of the defendant alters the court’s view of approaching the issues, but ultimately it did not affect the outcome because the patdown was minimal, not flagrant, and for weapons, and defendant’s consent was shown to be attenuated. United States v. Beltran, 2010 U.S. Dist. LEXIS 7035 (N.D. Ill. January 28, 2010).*

General consent includes pretty much anywhere in the vehicle, including containers and compartments. United States v. Garcia, 604 F.3d 186 (5th Cir. 2010):

The scope of a consensual search may be limited by the expressed object of the search. Jimeno, 500 U.S. at 251. But where, as here, an officer does not express the object of the search, the searched party, who knows the contents of the vehicle, has the responsibility explicitly to limit the scope of the search. Mendoza-Gonzalez, 318 F.3d at 667. Otherwise, an affirmative response to a general request is evidence of general consent to search. Id. Garcia did not qualify his consent to the officers, who therefore had general consent to search the truck.

General consent to search a vehicle does not, however, give an officer carte blanche over the vehicle. Id. at 669. A search must still be reasonable, given the totality of the circumstances. Id. The search here was reasonable. When the officers requested permission to search the truck after asking Garcia whether he was carrying “anything illegal,” it was natural to conclude that they might look for hidden compartments or containers.

Defendant argued that Gant supplanted the automobile exception. Not so. United States v. Ramos-Rogel, 2010 U.S. Dist. LEXIS 37012 (D. S.D. February 11, 2010).*

Defendant has no standing to challenge alleged HIPAA violation of his victim in producing records for trial. And, there was no violation. United States v. Prentice, 683 F. Supp. 2d 991 (D. Minn. 2010).

The officer had reasonable suspicion that defendant had guns and drugs in the car when he stopped him, and that justified asking for consent. United States v. Smith, 2010 U.S. Dist. LEXIS 9624 (D. Minn. January 14, 2010).*

Two controlled buys by a CI off defendant at his house was PC for a search warrant for the house. United States v. Neal, 2010 U.S. Dist. LEXIS 9609 (D. Minn. January 13, 2010).*

“In its landmark decision on searches of students by school officials, the United States Supreme Court concluded such searches were justified if ‘“reasonable,”’ though no warrant had been obtained and the ‘probable cause’ required for a police search did not exist. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 341 [83 L.Ed.2d 720, 105 S.Ct. 733] (T.L.O.).) The high court declined, however, to determine the applicable standard when the school officials conduct the search ‘in conjunction with or at the behest of law enforcement agencies.’ (Id. at p. 341, fn. 7.) The facts of our case directly raise this issue. In the published portion of this opinion, we conclude that when a school official independently decides to search a student and then conducts that search, the T.L.O. standard applies, even if the police provide the information justifying the search and are present when it occurs. In the unpublished portion, we apply the reasonable suspicion standard to our facts and uphold the trial court’s decision to deny the motion to suppress filed by appellant K.S.” In re K.S., 183 Cal. App. 4th 72, 108 Cal. Rptr. 3d 32 (1st Dist. 2010), certified for publication with the exception of parts I, III, IV, and V., Modified by In re K.S., 2010 Cal. App. LEXIS 557 (Cal. App. 1st Dist., Apr. 23, 2010).

Officers were surveilling an area known for recent shootings. They observed defendant engage in an apparent hand-to-hand buy, and that justified an arrest and search incident. The court of appeals erred in suppressing the search. State v. Surtain, 31 So. 3d 1037 (La. 2010).*

State officers had probable cause to search for evidence of surreptitiously made videos of unsuspecting women having sex at defendant’s house with him. The statement of one who saw one of the videos was enough to base application for the search warrant. After officers got into his computer, they saw alleged child pornography, and they sought a separate search warrant for that. The description “child pornography” was specific enough. A Franks challenge to various aspects of the statement for the search warrant did not undercut the showing of probable cause. United States v. Alexander, 2007 U.S. Dist. LEXIS 99181 (W.D. Mo. August 30, 2007).*

Consent to look in defendant’s backpack for his ID did not permit the officer to unscrew the cap to a flashlight where the officer found meth. Suppression order affirmed. State v. Neese, 302 Ga. App. 829, 691 S.E.2d 883 (2010).

The videotape and the findings of fact from the trial court support the conclusion that defendant was probably under the influence and that was reasonable suspicion for the stop. Reed v. State, 308 S.W.3d 417 (Tex. App.—Ft. Worth 2010)

Police set up surveillance on defendant after an informant said she’d be carrying cocaine for sale. She got in a car and drove off not using a turn signal. Officers stopped the car and she promptly validly consented to a search of the car. State v. Lewis, 2010 Del. Super. LEXIS 91 (March 10, 2010).*

Defendant was stopped for a traffic offense and the officer quickly had suspicion of DUI. The defendant’s prior drug arrests coupled with information about alleged recent drug dealing supported the frisk. Defendant also consented to the search of his car, and he abandoned heroin on the side of the road. The vehicle was properly inventoried for lack of a driver. The fact that the defendants “works” [my word] were left off the inventory did not require suppression Motion to suppress denied. United States v. Seman, 2010 U.S. Dist. LEXIS 57550 (N.D. W.Va. June 10, 2010)*:

The defendant argues that certain items seized, including a dirty spoon and hypodermic needle were not listed on the inventory sheet (although apparently listed on the officer’s incident report). Given the purposes of the inventory search, this is not surprising. These items would not fall within the items to be protected from theft by the inventory search.

Defendant drove to a house under surveillance for a coming drug raid. The defendant went back and forth between the house and the car. After the raid on the house, the defendant fled on foot, and the car was left locked. While the car was locked, there was no exigency because the defendant was gone. State v. Washington, 2010 Ohio 2580, 2010 Ohio App. LEXIS 2126 (6th Dist. June 4, 2010):

Under these circumstances, there does not appear to be any reason for the officer to believe any evidence would be destroyed or lost without an immediate search of the automobile. While it is true the officer was unsure of the cocaine’s whereabouts (whether it was in the trunk or still with appellant), there is no immediate threat that would prevent the officer from waiting to obtain a warrant. Having arranged and observed the transaction, there certainly was probable cause that the cocaine was located in the locked car’s trunk. That being said, in order for a search to be reasonable under the Fourth Amendment, it must be based upon probable cause and executed pursuant to a warrant; a failure to do so without showing an exception causes the evidence seized in the unreasonable search to be suppressed. State v. Moore (2000), 90 Ohio St.3d 47, 2000 Ohio 10, 734 N.E.2d 804. Here, absent a warrant, no exception applies and it is the opinion of this court that the trial court erred in denying the motion to suppress.

Inventory of wheel well was with an investigative purpose and violated Fourth Amendment. State v. Wells, 2010 Ohio 2603, 2010 Ohio App. LEXIS 2145 (8th Dist. June 10, 2010):

[*P11] The search at issue in this case was conducted with an investigatory intent. The Cleveland General Police Order regarding vehicle tows, pursuant to which Officer Yasenchack performed his search, provides that property found in unlocked closed containers in a vehicle shall be inventoried, and property such as jewelry, cameras, radios, and other valuables should be inventoried and removed from the car prior to tow. It says nothing about searching wheel wells as part of an inventory search. Thus, Officer Yasenchack’s search of the wheel well was not pursuant to standard police policy.

[*P12] Furthermore, Officer Yasenchack admitted that the inventory search was actually a pretext for an investigatory search for more drugs. On direct examination, Officer Yasenchack testified that after Wells was arrested, “we did an inventory search of the vehicle.” But he testified that he looked in the wheel well because it is a “common area to hide contraband, weapons, drugs” and because he suspected that Wells and his passenger were involved in the sale of drugs. When challenged on cross-examination as to the purpose of his search of the wheel well, he admitted that he was performing a “dual purpose search” and “also searching for more drugs” and, with that intention, he “pulled the fabric [back from around the wheel well] to reveal the cavity inside.”

“Black Box” Standard for New Cars Could Be Big Gain for Street Safety by Charles Komanoff on StreetsBlog.org discusses a NHTSA proposed requirement of black boxes in all cars. According to the blog, they started appearing voluntarily in the 1990s to protect manufacturers from potential lawsuits, and became widespread in 2004. How often do the police really look there? (Search “black box,” the first post here.)

What about the privacy implications? Can the government legitimately require a “black box” as an event recorder? They do in commercial airliners, but the interests are vastly different, and the FAA heavily regulates all air traffic. What’s the government interest in having them in all cars manufactured after a certain date, which I’m guessing means they will be in 85+% of all cars in ten years?

People have been convicted based on evidence from the “black box” refuting their statements to the police, as noted in the blog and the case law. My view is that a search warrant is required for the “black box” in a car. It is not like any other search of a car. Liken it to finding a computer in a car. It can’t be searched under the automobile exception or inventory, and a warrant is required for it, too.

They are far less intrusive than a GPS device which measures speed and exact location. GPS devices planted by the police are already not a Fourth Amendment issue, but state law may be different, as in New York’s People v. Weaver discussed here (opinion) and here (article).

I suggest applying the “Big Brother” standard: Does it creep you out like Orwell’s 1984 surveillance? If so, then it should violate the Fourth Amendment. GPS far more so than black boxes, so it meets that standard.* “Black boxes” less so. Kyllo on thermal imaging a house creeps me out. I submit that black box searches won’t be used except in really bad crash cases because it takes a warrant to get them and (1) either the police won’t bother, or (2) the courts won’t give them one unless it is really necessary.

And, the “Big Brother” standard also depends on the interests involved. Some will require a search warrant (Kyllo; GPS on cars should (but depends on the state)), but some may be so intrusive they they are beyond a search warrant, like search warrants to go below the skin for evidence (like for bullets in Winston v. Lee), or seizing adult pornography in the home which is a constitutionally protected right (Stanley v. Georgia).

________

* Federal courts disagree under the Fourth Amendment.

Defendant’s § 2255 Franks claim fails because the information about the CI in the search warrant affidavit was virtually irrelevant compared to the results of two trash pulls finding drug evidence and that was probable cause. Thomas v. United States, 2010 U.S. Dist. LEXIS 56023 (W.D. Mich. June 7, 2010).*

Court finds as a fact that the officer did not ask for consent to look for evidence of drug dealing in his computer. It was a general consent, and child pornography was found. United States v. Adkins, 2010 U.S. Dist. LEXIS 55657 (N.D. Ind. June 7, 2010)*:

On these factual findings, Adkins’ motion to suppress fails because the express written consents he gave for the search of the computers and their stored files were broad and unlimited, and certainly contained no limitation making the agents’ review of the “.jpg” image files beyond their scope. Neither McCabe nor any other agent made any representation to Adkins justifying any belief that the scope of his consent was limited to a particular kind of evidence.

Officer’s entry on to the curtilage was justified by the smell of ether (exigent circumstances) and defendant’s prior involvement with manufacturing meth. United States v. Weiler, 2010 U.S. Dist. LEXIS 55793 (E.D. Mo. May 20, 2010).*

Defendant’s § 2255 claim that defense counsel was ineffective for not specifically challenging certain parts of the USMJ’s findings on his search claim did not prejudice him when the court made findings on those issues anyway. United States v. Goodlett, 2010 U.S. Dist. LEXIS 56009 (N.D. Okla. June 4, 2010).*

The court finds more credible the government’s version that the defendant and his father consented to a search of their property for stolen property linked to defendant. United States v. Clutter, 2010 U.S. Dist. LEXIS 55810 (W.D. Mo. May 17, 2010).*

Defendant’s § 2255 argument that defense counsel did not press a specific search argument is belied by the record. The issue was fully addressed by the USMJ, USDJ, and USCA. Jones v. United States, 2010 U.S. Dist. LEXIS 55750 (D. Maine May 10, 2010).*

The trooper told defendant he was free to go handing back papers and saying “have a nice trip.” Then the trooper said “have you got time for a couple of quick questions?,” and the defendant agreed to talk, and the trooper asked about drugs. Defendant asked why, and he said he had “indicators.” He was not seized when he agreed to a drug dog coming to sniff the car. United States v. Bowman, 2010 U.S. Dist. LEXIS 54194 (N.D. Iowa June 3, 2010)*:

Here, Trooper Simmons had returned Defendant’s driver’s license, registration, and insurance papers, and told Defendant that he was free to leave. The video demonstrates that Simmons did not block Defendant’s path to his vehicle, nor did he raise his voice or otherwise suggest that Defendant’s compliance was required. In fact, when Simmons asked for permission to search the car, Defendant refused. Accordingly, Defendant apparently understood that he was not required to consent to Simmons’ requests. When Simmons asked whether or not it would be “cool” for a canine to do a free air search of the car, Defendant agreed, responding “yeah, that’s cool.” The Court concludes that Defendant was not seized during the encounter with Simmons between the cars.

Police responding to a domestic disturbance call were given consent to search by the woman involved for a gun that the defendant with a prior conviction had put to her head. Also, it was in plain view when the officer came in. United States v. Moylan, 2010 U.S. Dist. LEXIS 53619 (W.D. Mo. May 10, 2010).*

Defendant consented to the taking of a DNA sample. He was informed that he had a right to refuse consent, but he objected that he did not understand the form or what DNA was. The court finds the form simple and understandable, and he voluntarily consented. [The court downplayed the role of knowledge of the right to refuse consent in voluntariness.] United States v. Cloud, 2010 U.S. Dist. LEXIS 54861 (D. Minn. April 19, 2010):

In addition, though the Defendant contends that his consent was not knowing, because Iverson did not explain the meaning of a “voluntary submission,” the language of the Consent Form is clear and simple, and plainly informs the reader that there is no requirement to consent, and that any consent is voluntarily given. As a consequence, we find that the Defendant was sufficiently apprised of the voluntary nature of his consent and, in addition, we observe that, while it may factor into the totality of the circumstances analysis, “[t]he Supreme ‘Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search.'” United States v. Va Lerie, supra at 710, quoting United States v. Drayton, 536 U.S. 194, 206 (2002); see also, United States v. Esquivias, supra at 701 (“While the officers did not inform [the defendant] of his right to refuse consent, a defendant need not be aware, nor must an officer inform him, of his right to refuse consent for his consent to be voluntary.”), citing United States v. Becker, 333 F.3d 858, 861 (8th Cir. 2003); United States v. Alcantar, supra at 737 (“Although [the defendant] was not advised of his right to refuse consent, that was not in and of itself sufficient to find that consent was not voluntarily given.”), citing United States v. Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999).

Officers received information that drug dealing was going on at a house, and they went to the premises to conduct a knock-and-talk. While talking to the man that answered the door, the defendant came into view with a baggie of crack in hand. That was an exigent circumstance for an entry. After police entered, consent to search was granted after the occupants were told in writing they could refuse and require a search warrant. United States v. St. Villien, 2010 U.S. Dist. LEXIS 54656 (S.D. Fla. May 17, 2010):

The Court emphasized, however, that the exigency which justifies the warrantless entry cannot be one that is created by the police. Thus, in Santa, the Court held that exigent circumstances did not justify the warrantless entry into the defendants’ apartment to arrest the defendants where the law enforcement agents had advance notice that the defendants were going to conduct a narcotics transaction with an informant at that location. Accord United States v. McGregor, 31 F.3d 1067, 1069 (11th Cir. 1994).

In the case at bar, the police had received information that a drug trafficker known as “Gucci” lived at the subject premises, and was distributing drugs from that location. Based upon the receipt of that information, they reasonably decided to investigate the premises in an effort to verify the information. Once they arrived at the premises, and knocked on the door, Mr. Barberena opened the door. As Officer Oliva began to speak with him to tell him why they were there, he saw the Defendant walk into view carrying a baggie of crack cocaine. The Defendant has not disputed the conclusion that at that point, the police had probable cause to enter the residence, seize the crack cocaine and detain the Defendant. Rather, the only dispute is whether Officer Oliva, in fact, saw the Defendant carrying the crack cocaine before he entered the residence, and the undersigned has credited the testimony of the officers that he did.

Defendant had a reasonable expectation of privacy in the contents of his cell phone and his number, contrary to the state’s argument. Just giving out the number to others is not a waiver of the expectation of privacy. State v. Boyd, 295 Conn. 707, 992 A.2d 1071 (2010):

The state also claims, however, that even if the defendant owned and controlled the cell phone, he failed to establish that he had a reasonable expectation of privacy in the cell phone number because he presented no evidence that he had made any attempt to keep it private. In support of this claim, the state relies on United States v. Fierros-Alavarez, 547 F. Sup. 2d 1206 (D. Kan. 2008). In that case, the court concluded that, because the defendant had lawful possession and control of his cell phone when it was seized and searched by the police, he had a subjective expectation of privacy in it. Id., 1210. The court also concluded, however, that the defendant had no reasonable expectation of privacy in the cell phone’s recent call directory showing the numbers that the defendant had called from the cell phone because he had provided that information to third parties. Id., 1210-11. In support of this conclusion, the court relied on Smith v. Maryland, 442 U.S. 735, 742-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (no reasonable expectation of privacy in dialed telephone number because telephone company must receive telephone number to complete call and person has no legitimate expectation of privacy in information he voluntarily turns over to third parties), and United States v. Forrester, 512 F.3d 500, 509-10 (9th Cir. 2008) (applying Smith to validate police surveillance of defendant’s computer to obtain e-mail addresses of outgoing e-mails and addresses of web sites visited).

We do not find the court’s reasoning in Fierros-Alavarez to be persuasive. In Smith and Forrester, the government had not obtained the dialed telephone numbers and e-mail addresses from an item or area in which the defendant had a reasonable expectation of privacy, but had obtained the information from, respectively, the telephone company and the Internet provider. See Smith v. Maryland, supra, 442 U.S. 741 (government installed pen register to record numbers dialed from defendant’s telephone on telephone company property at telephone company’s central offices); United States v. Forrester, supra, 512 F.3d 505 (government installed “pen register analogue” at Internet provider’s facility). 10 Thus, we understand the cases to stand for the proposition that the government can obtain information that the defendant has provided to a third party from that third party without implicating the defendant’s fourth amendment rights. For example, in the present case, if the police had obtained the defendant’s cell phone number from Gagliardi or from the cell phone carrier, there would have been no fourth amendment violation under Smith and Forrester because the defendant could have no reasonable expectation that Gagliardi and the carrier would not reveal the information. Contrary to the court’s assumption in Fierros-Alavarez, however, nothing in either case supports a conclusion that, if a defendant has a reasonable expectation of privacy in an area or item, the government may search that area or item for any information that the defendant had provided to third parties without triggering fourth amendment protections. We conclude, therefore, that the fact that the defendant in the present case had provided his cell phone number to third parties and had not taken steps to ensure that it was confidential does not mean that he had no reasonable expectation that the police would not search the contents of his cell phone for the number without a warrant. We conclude, therefore, that the defendant had a reasonable expectation of privacy in all of the contents of his cell phone, including his subscriber number.

Police entry into premises was based on community caretaking function for an occupant who could not care for himself. While he was seen earlier and was fine, the police had facts that indicated that he wasn’t. State v. Labarre, 992 A.2d 73 (N.H. 2010):

The events of March 24 reinforced the possibility that Countie was injured. In the defendant’s phone call at 1:00 a.m., Countie could be heard vomiting on the audio tape and the defendant said he had fainted. Although the defendant told the officers and Countie’s family that he had left, the police had reason to believe she was lying. She had previously lied to the police when they went to her home on February 24 to see if Countie was there. The defendant initially told them he was not there but then brought him to the door. The officers also knew that the defendant had a history of arguing with partners who left her home but returned later. All of these facts were enough to cause “a person of reasonable caution” to believe that Countie might have been injured and at the defendant’s residence. … [¶] The record also demonstrates that the police entered the defendant’s property to check on Countie’s well-being, not to investigate a crime.

Illegal turn and smell of marijuana coming from defendant’s car was PC to search. State v. Cox, 2010 Ohio 1227, 2010 Ohio App. LEXIS 1008 (10th Dist. March 25, 2010).*

Under Pennsylvania’s “limited automobile exception,” the exigent circumstances can evaporate [like in search incident] because the defendant was in custody. Here, the third prong of plain view failed on this ground. However, it was harmless error because of the overwhelming other evidence in the case. Commonwealth v. Brown, 2010 PA Super 27, 2010 Pa. Super. LEXIS 79 (March 2, 2010).*

There is no de minimus exception to enable a dog sniff after the purpose of a stop has concluded. Extending the stop is unreasonable. State v. Baker, 2010 UT 18, 229 P.3d 650, 651 Utah Adv. Rep. 25 (2010), aff’g State v. Baker, 2008 UT App 115, 182 P.3d 935 (2008):

B. No De Minimis Exception Allows Officers to Conduct a Dog Sniff After the Purpose of the Stop Has Concluded

[*P28] The State also argues that because there was only a short amount of time between the completion of the arrest of the driver and the arrival of the K-9 unit, we should hold that any extension of the detention of the passengers was de minimis. But “even a small intrusion beyond the legitimate scope of an initially lawful search is unlawful under the Fourth Amendment.” Schlosser, 774 P.2d at 1135.

[*P29] Because a trained narcotics-detection dog alerts police only to the presence of contraband, and there is no Fourth Amendment right to possess contraband, the United States Supreme Court has held that a dog sniff is not a search under the Fourth Amendment. United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). Based on the premise that a dog sniff is not a search, the Supreme Court has also found that a drug-trained dog may walk the perimeter of a lawfully detained vehicle even if police have no reasonable suspicion that the vehicle occupants are engaged in drug-related activity so long as the dog sniff search does not extend the duration of the stop. Illinois v. Caballes, 543 U.S. 405, 408, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). However, “[a] seizure … can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Id. at 407.

[*P30] Some jurisdictions have held that because police may conduct a dog sniff of the exterior of the vehicle during the course of a lawful traffic stop, they may also detain vehicle occupants for a short amount of time after the purpose of the stop has concluded in order to conduct a dog sniff search. … However, many jurisdictions have recognized that any extension of a stop after officers have completed the purpose of their stop violates the Fourth Amendment. …

. . .

[*P58] Because officers had finished processing the arrest of the driver and were not allowed to conduct a search incident to her arrest, we hold that they had improperly extended the duration of Mr. Baker’s detention at the time the dog sniff occurred. However, we decline to apply the exclusionary rule to the evidence obtained as a result of this violation because the officers acted in good faith reliance on previous precedent that allowed them to conduct a search of the vehicle incident to arrest. But we find that the officers lacked reasonable articulable suspicion that the passengers posed a threat to their safety at the time they conducted the pat-down search of Mr. Baker. Accordingly, we affirm the decision of the court of appeals.