A private search is contrary to the Washington Constitution. Here, a repairman saw a marijuana grow operation and called the police who obtained a telephonic warrant. The court of appeals affirmed, and the supreme court reversed. State v. Eisfeldt, 163 Wn.2d 628, 185 P.3d 580 (2008):

¶14 We have repeatedly held the privacy protected by article I, section 7 survived where the reasonable expectation of privacy under the Fourth Amendment was destroyed. For example in Boland, 115 Wn.2d at 578, this court found a warrantless search of an individual’s garbage violated article I, section 7, even though “it may be true an expectation that [others] will not sift through one’s garbage is unreasonable … .” By contrast, the United States Supreme Court previously held individuals had no reasonable expectation of privacy in their garbage, and therefore there was no protection under the Fourth Amendment. California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988).

¶15 We held the same in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). In Gunwall, 106 Wn.2d at 55, we considered whether the State could collect without a warrant phone numbers dialed by an individual. United States Supreme Court precedent holds an individual’s reasonable expectation of privacy is destroyed when he dials a phone number because he “had to convey that number to the telephone company … .” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979). But we held the individual privacy interest, no matter how unreasonably held, survives the conveyance of the phone number to the phone company and, as such, article I, section 7 prohibits collecting these numbers without a warrant. Gunwall, 106 Wn.2d at 69.

¶16 The individual’s privacy interest protected by article I, section 7 survives the exposure that occurs when it is intruded upon by a private actor. Unlike the reasonable expectation of privacy protected by the Fourth Amendment, the individual’s privacy interest is not extinguished simply because a private actor has actually intruded upon, or is likely to intrude upon, 8 the interest. The private search does not work to destroy the article I, section 7 interest, unlike the Fourth Amendment’s, because the Fourth Amendment’s rationale does not apply to our state constitutional protections.

A second safe was not named in a search warrant, and seizing it was not proper under plain view because the evidentiary value was not immediately apparent. State v. Powell, 268 S.W.3d 626 (Tex. App. — Ft. Worth 2008).*

Utah probation search was based on reasonable suspicion and was constitutional. United States v. Stewart, 273 Fed. Appx. 768 (10th Cir. 2008) (unpublished).*

Unusual travel plans, while not completely implausible, were implausible enough for reasonable suspicion. United States v. Gonzalez, 290 Fed. Appx. 80 (10th Cir. 2008) (unpublished).*

Asking a motorist if the officer can ask more questions before the driver leaves is not unconstitutional. “Here, it is clear that Kirkland was informed that he was free to leave and then voluntarily consented to further questioning. As noted above, Rogers asked, ‘Mr. Kirkland, before you go, do you mind if I ask you a couple questions?’ to which Kirkland replied, ‘Go ahead.’ Review of the DVD clearly shows that Kirkland was cooperative and did not object to further conversation.” United States v. Kirkland, 2008 U.S. Dist. LEXIS 30670 (S.D. Ill. April 15, 2008).*

Even if defendant’s search and the seizure of some guns was illegal, he wasn’t prejudiced by it because plenty of other guns that were lawfully seized came in anyway. Montgomery v. United States, 557 F. Supp. 2d 1337 (M.D. Fla. 2008).*

Use of 20 SWAT officers and 3 K-9 officers to execute a search warrant was reasonable for purposes of civil liability. Walker v. City of Wilmington, 579 F. Supp. 2d 563 (D. Del. 2008):

Based on the record, the court holds that defendants’ use of force was objectively reasonable under the circumstances. The employment of a 20-member SWAT team was objectively reasonable because, as the police had learned from surveillance, 118 Dutton Drive had multiple floors to cover and multiple occupants to detain. (D.I. 51 at 56) Using K9 officers was objectively reasonable because police believed suspect Walker to be preparing to flee. (D.I. 46 at 169) Using weapons was objectively reasonable because suspect Walker [*26] was wanted for murder, had a criminal history, and was believed to be armed with at least a knife; police did not know whether the other occupants had weapons.

Defendant’s claim of consent by trickery was not presented to the district court, so it was waived. United States v. Vanvliet, 542 F.3d 259 (1st Cir. 2008).*

Defendant’s stop in a high crime area known for random shootings escalated from fear of a weapon, and handcuffing the defendant for officer safety did rise to an arrest. State v. Morton, 993 So. 2d 651 (La. App. 5th Cir. 2008):

Since police officers should not be required to take unnecessary risks in performing their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. State v. Porche, 943 So.2d at 339. Considering the totality of the circumstances, Officer Thomas was justified in his decision to handcuff defendant as a safety precaution; those actions did not rise to [Pg 9] the level of an arrest. See State v. Gray, 99-47 (La.App. 5 Cir. 6/1/99), 738 So.2d 668, and State v. Enclade, 03-353 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, where this court found that the officer’s decision to handcuff the defendant during an investigatory stop was justified as a safety precaution and did not rise to the level of an arrest.

The trial court found that defendant did not consent to a search, but the appellate court disagreed, finding that, although the defendant had been blocked in by the police, his actions in responding to the nonconfrontational police showed consent. People v. Quagliata, 2008 NY Slip Op 6465, 53 A.D.3d 670, 861 N.Y.S.2d 792 (2d Dept. 2008)* (Comment: So much for the clearly erroneous rule and “heavy burden of proving the voluntariness of a defendant’s consent”.)

Records warrant for a business permitted the search of defendant’s private office under the warrant. The defendant did not show a reasonable expectation of privacy in the records. State v. Lacount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780 (2008), certiorari denied, 2008 U.S. LEXIS 8599 (U.S., Dec. 1, 2008):

[*P39] We find LaCount’s assertion that the police exceeded the scope of the search warrant by searching LaCount’s personal office within GP&L’s office to be without merit. Because, the search warrant was a premises warrant, the police were entitled to search the entire premises, including the items within the premises, so long as such items were “plausible receptacles of the objects of the search.” Id. at 389. As a result, the search of LaCount’s personal office within GP&L’s office was warranted, because his office’s furnishings were plausible receptacles that were very likely to have contained the items that the search warrant authorized to be searched for and seized. Lawful searches, as here, may extend “‘to the entire area in which the object of the search may be found and [are] not limited by the possibility that separate acts of entry or opening may be required to complete the search.'” Id. at 389-90 (citation omitted).

[*P40] Furthermore, LaCount’s citation in his brief to O’Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987), in support of LaCount’s assertion that he had a reasonable expectation of privacy in his personal office is misplaced, because LaCount failed to meet his burden of providing specific information on what he alleged was seized inappropriately. Furthermore, LaCount failed to meet his burden of establishing, by a preponderance of the evidence, his subjective expectation of privacy. State v. Orta, 2003 WI App 93, P11, 264 Wis. 2d 765, 663 N.W.2d 358. This is true because LaCount never provided any specificity on his alleged expectation of privacy. He never testified as to what he claimed was seized inappropriately. We are satisfied that the warrant authorized the police to search all of GP&L’s premises, including LaCount’s personal office therein.

[*P41] We similarly hold that LaCount’s assertion that the police exceeded the scope of the search warrant by seizing records of GP&L’s clients other than those specifically named in the warrant is without merit. The DeSmidt decision is especially helpful on the issue relating to whether the police exceeded the scope of the search warrant. State v. DeSmidt, 155 Wis. 2d 119, 133-34, 454 N.W.2d 780 (1990). In that case, we stated that, when “there is probable cause to believe that there exists a pervasive scheme to defraud, all the records of a business may be seized.” Id. (citation omitted).

A school bus driver who was accused of threatening a disabled child, whose parents put a voice activated recorder in his bookbag, had no reasonable expectation of privacy in statements made on a school bus, and recordings could be used against him. State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913 (2008).*

Officers who drove the wrong way on a street to encounter the defendant did not actually “stop” him. The situation was non-coercive and did not become a stop until defendant mentioned that he had a gun. The First Circuit explains the law of stops in detail, just to show that this was not a “stop.” United States v. Ford, 548 F.3d 1 (1st Cir. 2008):

Applying this precedent to the instant case, we decline to hold that the Officers seized Ford before he disclosed that he was in possession of a firearm. See Mendenhall, 446 U.S. at 555 (rejecting proposition that making statements contrary to one’s self-interest necessarily indicates involuntary submission). The Officers, like those in Cardoza, drove a short distance the wrong way on Gleason Street for the purpose of asking Ford questions but activated neither the cruiser’s siren or flashing lights. Their questions were largely general and non-threatening, like those in Smith. Throughout the brief encounter, until Ford’s incriminating statement, the Officers did not draw their guns or touch Ford.

At the onset of the interaction, Ford approached the cruiser and provided his driver’s license voluntarily. While the Officers retained the license during the two- to three-minute exchange, they did not otherwise restrict Ford’s movement.

(Comment: If an officer approaches you from the wrong way on one-way street and looks at you and stops, he expects you to stop. If you did not, he likely would have then activated his blue lights, but the situation is rife with coercion to stop. Given that, you just can’t leave without consequences.)

State court action which included a challenge to search and seizure of plaintiff precluded claim in federal court over the same issue. Giragosian v. Ryan, 547 F.3d 59 (1st Cir. 2008).*

NYPD’s inventory policy satisfied Wells, even though it was not fully standardized. United States v. Lopez, 547 F.3d 364 (2d Cir. 2008):

It is true, without doubt, that the Court has stressed the need for a standardized policy. The Court has made it clear that a standardized policy is required so that inventory searches do not become “a ruse for a general rummaging in order to discover incriminating evidence.” Wells, 495 U.S. at 4. The evidence adduced at the trial satisfied this standard. The unchallenged testimony of both Officer Arroyo and Sgt. Barrett established that there is a uniform standardized policy in the New York City Police Department to do a complete inventory search of the contents when a car is impounded. Arroyo testified, “[Y]ou have to do a total inventory of the vehicle. Everything has to come out.” Sgt. Barrett confirmed that it is the responsibility of the officer to conduct an inventory search of an impounded car in order “to see if there were any items that needed to be safeguarded.” This evidence was unchallenged and was credited by the district court. Accordingly, the purposes of the Supreme Court’s requirement of a standardized policy were satisfied.

Officers asked for and received consent from defendant’s live-in girlfriend. He was present and not asked for consent, and Randolph does not require it. United States v. Lopez, 547 F.3d 397 (2d Cir. 2008).*

Persons residing in a condemned building rousted by the police have no Fourth Amendment complaint against the police who ordered them out, they refused to leave, and were then arrested. Trinity v. Mokwa, 547 F.3d 890 (8th Cir. 2008):

A person who is “wrongfully on the premises” may not object to the legality of a search. Rakas v. Illinois, 439 U.S. 128, 141 & n.9 (1978). Likewise, a person who the police find to be unlawfully occupying a building condemned for occupancy, and who refuses their command to vacate the premises, may not object to the legality of their entry and removal by arrest.

Tenant was already facing eviction proceedings before he committed a murder, and, after the arrest, the landlord removed everything from the premises. The fact the landlord was nice enough to not evict immediately was not enough to create an expectation of privacy when the defendant knew he was to be out ASAP and he did nothing to move out before committing the murder. United States v. Bolden, 545 F.3d 609 (8th Cir. 2008).

Defendant was confronted by officers during a train stopover in Omaha. One bag was found with a lock and no tags and the officers asked who it belonged to and nobody claimed it. The officers saw defendant and decided that he was nervous looking, so they started talking to him and he told them his name, provided ID, told them where he was going to visit a girlfriend, and, when the train was about to leave, they got him off the train. He was effectively seized at that point, and the seizure of the second bag was unlawful. United States v. Posadas, 2008 U.S. Dist. LEXIS 104618 (D. Neb. December 29, 2008):

Even if the evidence could show that the officers were operating on anything more than a “hunch,” the defendant in this case was effectively taken into custody when he was asked to leave the train, which would require probable cause. A reasonable person in the defendant’s position would not have felt free to leave or to refuse the officers’ request. See, e.g., also Florida v. Royer, 460 U.S. 491, 503 n. 9 (1983) (noting officers taking possession of defendant’s airline ticket, luggage, and identification contributed to determination defendant had been seized because “[a]s a practical matter, Royer could not leave the airport without them.”); United States v. Mendenhall, 446 U.S. 544, 554, (1980) (stating that “[a] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”). Whatever consent the defendant had provided to officers for a search of his bag before the seizure, the consent did not extend to the removal of the defendant and his bag from the train and the attendant consequence that the train would leave without him. The officers lacked probable cause to remove the defendant and his bag from the train.

Administrative search warrant for animal control violations was issued with probable cause and was sufficiently particular for “animals” in violation of law. Armon v. McHenry County, 2008 U.S. Dist. LEXIS 104553 (N.D. Ill. December 29, 2008):

The warrant was by no means a general warrant and was limited to authorizing a seizure of “any animals” that were being kept on the property in violation of animal control ordinances and statutes. While it is true that the warrant did not specify each and every animal that was to be seized, that type of detail would have been impossible, especially considering the sheer volume of animals that were present on the property and the fact that animals of the same type are not necessarily readily distinguishable.

Repeated sexual assaults of plaintiff’s children were exigent circumstances for their seizure and removal from the home. Canter v. Reeves, 2008 U.S. Dist. LEXIS 35667 (E.D. Mich. May 1, 2008):

The Court finds that the factual circumstances underlying this case amounted to exigent circumstances. Ro.C. was an 11-year-old girl who revealed that she had been sexually molested by her nephew by adoption and sexually assaulted by her adopted brother on multiple occasions, as recently as the previous evening. In light of the frequency of the assaults and their unwanted nature, the case presents a situation in which “real immediate and serious consequences … would certainly occur were a police officer to postpone[] action to get a warrant.” O’Brien, 23 F.3d at 997 (internal quotations omitted).

A ticket is not itself a Fourth Amendment violation, assuming it was issued based on probable cause. Idahosa v. Despines, 275 Fed. Appx. 545 (7th Cir. 2008) (unpublished):

The ticket was neither a search nor a seizure; a ticket is just the complaint that initiates litigation. A ticket might have led to a seizure, as in Atwater v. Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001), but Despines did not take Idahosa to the stationhouse for booking. So there is no problem under the fourth amendment–and there was in any event probable cause for the ticket. Cf. Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).

Defendant who was illegally detained as a passenger in a car could not be asked for consent to search her purse, so the search was invalid. State v. Corbett, 223 Ore. App. 757 (2008):

Defendant argues, and the state does not dispute, that she was illegally detained following the lawful stop for the traffic violation. We agree. When the officer began the search of the car, the officer did not have reasonable suspicion that defendant had engaged in a crime, yet she was not permitted to leave the scene, and the officer was not engaged in any steps relative to the investigation of the traffic infraction. See State v. Highley, 219 Ore. App. 100, 110, 180 P3d 1230 (2008) (illegal stop where defendant was passenger in a car that was legally stopped and record did not support reasonable suspicion that defendant was involved in criminal activity); see also State v. Kirkeby, 220 Ore. App. 177, 186, 185 P3d 510, rev allowed, 345 Ore. 301 (2008) (illegal detention where no indication that officer was engaged in steps relative to investigation of traffic offense).

Further, in State v. Ayles, 220 Ore. App. 606, 614, 188 P3d 378 (2008), and State v. La France, 219 Ore. App. 548, 557, 184 P3d 1169 (2008), we held that Miranda warnings given to the defendants in those cases before obtaining consent to conduct searches were not mitigating circumstances that purged the taint of the initial illegality, based on the totality of circumstances in each of those cases. The state concedes, and we agree, that the circumstances here do not differ markedly from those in Ayles and La France.

During a traffic stop, the defendant rolled down the window and the officer could smell burnt marijuana, and that was probable cause. United States v. Brown, 2008 U.S. Dist. LEXIS 93919 (D. Mass. November 17, 2008).*

Attempt to link other defendants to a search of the plaintiff’s premises was so far fetched that the defendants were entitled to attorneys fees to defend against it. Morales-Opett v. County of Fresno, 2008 U.S. Dist. LEXIS 94072 (E.D. Cal. November 6, 2008).*

Police had probable cause to believe that the premises searched belonged to the parolee. His absconding did not prevent the police from searching the premises the police believed was his. United States v. Flores, 288 Fed. Appx. 365 (9th Cir. 2008) (unpublished):

The police’s cumulative observations and investigations established probable cause to believe that Flores lived at the Lerma Road residence. Even though Flores had legally “absconded,” this did not necessarily mean that he had actually ceased to reside at the Lerma Road residence. Flores’ contention that the police should have asked him or someone else present whether Flores still lived at the Lerma Road residence is without merit. See Motley, 432 F.3d at 1082 (explaining that statements made by an interested source seeking to prevent arrest by the police are of little value to the probable cause inquiry).

Police had cause to stop the defendant based on a report that he had violated an order of protection. When they approached him, they saw a pistol grip and a shotgun under his coveralls. The stop was reasonable. United States v. Goodlett, 287 Fed. Appx. 699 (10th Cir. 2008) (unpublished).*

Abandoning car keys and disavowing them is an abandonment of the car. United States v. Brown, 288 Fed. Appx. 518 (10th Cir. 2008) (unpublished).*

School’s alleged excessively putting plaintiff’s son in timeout for behavioral problems, even if it was a Fourth Amendment seizure, was justified by the circumstances. Couture v. Bd. of Educ. of the Albuquerque Pub. Schs, 535 F.3d 1243 (10th Cir. 2008).*

Defendant passenger had standing to contest the stop of the vehicle he was in even if he lacked standing to contest a search of the vehicle. The traffic stop here was continued with reasonable suspicion. United States v. Torres-Ramos, 536 F.3d 542, 2008 FED App. 0281P (6th Cir. 2008).*

During the last week, I got access to parts of the template that weren’t previously accessible. I added references to Scotus Wiki, a part of SCOTUSBlog, for each of the pending cases so readers can gain a better understanding of what is pending.

I also repaired some broken links on the website, updated other material, and deleted some obsolete material. The cert grants link had been inactive because I posted links to the cases. But, with the advent of Scotus Wiki, it seemed natural to just link to it.

On the State Appellate Court links, you are taken to LII‘s website which has some broken links. I tested all of them, and found corrections. I haven’t figured out what to do with them since LII hasn’t responded to e-mails about them for the last year. If you have a need for these states, these are the links:

Arkansas
Colorado
Florida S.Ct. and 2d DCA
Kansas
Kentucky Court of Appeals
Louisiana Circuit Courts of Appeal: 1st, 2d, 3d, 4th, 5th
Maine
Massachusetts
Michigan S.Ct. and Court of Appeals
Missouri
New York
South Carolina S.Ct. and Court of Appeals
South Dakota
Vermont

There were 720,000 visits in 2008.

From NJL.com, is About those fuzzy dice hanging from your rearview mirror? They’re safe. The article reports on United States v. Davis, 2008 U.S. App. LEXIS 25757, 2008 FED App. 0452P (6th Cir. December 19, 2008), posted here. Fuzzy dice may be safe for the time being, but Mr. Davis remains in jail.

Dog sniff of a car on a school parking lot that led to a positive alert and a search of the car was constitutional because there is no expectation of privacy on a school parking lot to anything that can be seen through the windows or smelled by a drug dog. It was with probable cause, so the T.L.O. school search analysis does not apply. Also, the plaintiff’s handcuffing during the search of the car was not unreasonable under Summers. Hill v. Sharber, 544 F. Supp. 2d 670 (M.D. Tenn. 2008).

Police officers, on legitimate business, do not commit an unlawful search and seizure by approaching a dwelling and questioning the occupants in a “knock and talk.” The presence of trespassing signs, if the approach is otherwise lawful, does not make it unlawful. Jones v. State, 178 Md. App. 454, 943 A.2d 1 (2008).*

Reopening the suppression hearing at the government’s request would not change the outcome. Applying Brown v. Illinois attenuation analysis, the government still does not win. One officer was still out of breath after the illegal arrest. United States v. Valentine, 2008 U.S. Dist. LEXIS 103860 (E.D. N.Y. December 24, 2008):

The second and third factors–temporal proximity and intervening circumstances–weigh heavily in defendant’s favor. The law enforcement officers arrested defendant on the street outside of his apartment. (H. 196.) When they initiated the arrest, Morales was asleep. She was awakened by a neighbor shouting to her that the police were arresting defendant. (H. 306.) One officer testified that he observed Morales nervously watching the struggle to arrest defendant through a window. (H. 221, 240-41.) Defendant struggled for several minutes with five or six officers of sizable stature before they subdued him. (H. 168, 194-95, 217, 257-59, 277-78.) As a result of this struggle, defendant suffered a wound to his head, which began bleeding and required emergency medical care. (H. 170, 194-95, 219, 236-37.)

Once the officers subdued defendant, they searched his car. (H. 169, 195-96.) Agent Yoos, along with other officers, proceeded to the apartment defendant shared with Morales. (H. 98, 136.) The officers immediately sought Morales’s consent to conduct a security sweep; however, it is unclear whether that sweep occurred before or after Morales signed the consent form. (Compare H. 130, 242, 316-17, with H. 130, 136-37.) The officers described her as looking “concerned” when they entered the apartment (H. 101, 220, 240), but “calm” during the search (H. 205).

Based on the record, the court finds that the officers’ request to enter the apartment followed immediately on the heels of defendant’s illegal arrest. (H. 124, 128, 129, 220, 260, 322-23.) There is no evidence of any intervening events whatsoever in the record. In fact, one officer testified that he was out of breath from the struggle with defendant, immediately regained his composure, and then proceeded directly to the apartment to assist Agent Yoos. (H. 260, 278-79.) The government did not seek to present any additional evidence with respect to the timeline presented.

Fireman had the authority to use an ax to open a locked door while putting out a fire, and he saw growing supplies. The following entry by a police officer was to investigate the crime and had nothing to do with the fire, and the search was properly suppressed under Clifford and Tyler. State v. Sutcliffe, 2008 Ohio 6782, 2008 Ohio App. LEXIS 5668 (11th Dist. December 19, 2008).*

Defendant kept putting his hands in his pockets and was extremely fidgety. The officer patted him down but did not remove anything. He asked [directed?] the defendant to empty his pockets, and this was within the scope of the patdown. State v. Riter, 2008 Ohio 6752, 2008 Ohio App. LEXIS 5647 (3d Dist. December 22, 2008).*

Defendant’s traffic stop was based on at least reasonable suspicion. State v. Lewis, 2008 Ohio 6691, 2008 Ohio App. LEXIS 5597 (4th Dist. December 15, 2008).*

A search incident of a cellphone is not justified. United States v. Wall, 2008 U.S. Dist. LEXIS 103058 (S.D. Fla. December 22, 2008):

The Seventh Circuit has permitted the admission of phone numbers found on a pager during a warrantless search at the time of the arrest. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996). The court reasoned that pagers have a finite memory, and new incoming pages can potentially destroy previously stored numbers. Id. Thus, the court there found it necessary for law enforcement to immediately search pagers to prevent the destruction of evidence. Id. The Fifth Circuit has extended the holding of Ortiz to searches of cell phones. United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007). However, the Finley court did not explain why cell phones should be treated the same as pagers for purposes of the Fourth Amendment.

After the Finley opinion was entered, a court in the Northern District of California distinguished cell phones from pagers and suppressed the information retrieved from the cell phones. United States v. Park, 2007 WL 1521573 (N.D. Cal. 2007). In Park, the court found that cell phones can store a great quantity of information, and the government made no showing that the search was necessary to prevent the destruction of evidence. Id. at *9. The court further found that the search of the cell phones could not be considered an inventory search, because such searches are used to document possessions of a person in custody, not as a “ruse for a general rummaging in order to discover incriminating evidence.” Id. at *10 (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).

To determine if the search was valid, the Court has considered whether a search incident to an arrest, an inventory search, or exigent circumstances provide an exception to the warrant requirement in this case. Further, the Court has taken into account the testimony Agent Mitchell gave at the evidentiary hearing regarding his reasons for searching the cell phones for text messages: 1) he regularly performs searches as an investigative measure because it is common to find evidence of a crime in text messages; 2) it is a standard practice of the DEA and is authorized by the DEA Legal Department so long as the search is performed during the booking process; 3) he was concerned that the text messages might expire after a certain amount of time; and 4) the cell phone battery may die.

The Court declines to adopt the reasoning of Finley and extend law to provide an exception to the warrant requirement for searches of cell phones. The search of the cell phone cannot be justified as a search incident to lawful arrest. First, Agent Mitchell accessed the text messages when Wall was being booked at the stationhouse. Thus, it was not contemporaneous with the arrest. Kucynda, 321 F.3d at 1082. Also, the justification for this exception to the warrant requirement is the need for officer safety and to preserve evidence. Agnello v. United States, 269 U.S. 20, 30 (1925) (recognizing the long-held right of law enforcement “to find and seize things connected with the crime … as well as weapons and other things to effect an escape from custody”). The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant. See United States v. Jacobsen, 466 U.S. 109, 114 (1984).

Search of a student’s car on a school parking lot is governed by the reasonable suspicion standard of T.L.O.. State v. Best, 959 A.2d 243 (N.J. Super. 2008):

This appeal presents the question of whether a school principal who suspects that evidence of criminal activity will be found in a student’s car parked on school grounds is required to have probable cause before searching that vehicle or whether, instead, the reasonable suspicion standard approved by our Supreme Court and the United States Supreme Court in State in re T.L.O., 94 N.J. 331, 346 (1983), rev’d on other grounds sub nom. New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985), governs. We conclude that the privacy interests of students are outweighed by the substantial interest of teachers and administrators in maintaining a drug-free environment in the classroom and on school grounds. Consequently, we conclude that such vehicle searches need satisfy only the reasonable suspicion standard adopted by both courts in T.L.O. We thus affirm the trial court’s order that denied defendant’s motion to suppress.

Defendant was seen coming out of a building where there was a call about a burglary in progress. While it turned out that there was no burglary, the police diligently pursued their investigation after handcuffing defendant and drugs were found. Since the police were diligent and reasonable, the discovery of drugs would not be suppressed. United States v. Beltran, 2008 U.S. Dist. LEXIS 90682 (M.D. Fla. October 8, 2008).*