CNETnews.com has this article by Declan McCullagh and Anne Broache: FBI taps cell phone mic as eavesdropping tool.

The FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone's microphone and using it to eavesdrop on nearby conversations.

The technique is called a "roving bug," and was approved by top U.S. Department of Justice officials for use against members of a New York organized crime family who were wary of conventional surveillance techniques such as tailing a suspect or wiretapping him.

Nextel cell phones owned by two alleged mobsters, John Ardito and his attorney Peter Peluso, were used by the FBI to listen in on nearby conversations. The FBI views Ardito as one of the most powerful men in the Genovese family, a major part of the national Mafia.

The surveillance technique came to light in an opinion published this week by U.S. District Judge Lewis Kaplan. He ruled that the "roving bug" was legal because federal wiretapping law is broad enough to permit eavesdropping even of conversations that take place near a suspect's cell phone.

Kaplan's opinion said that the eavesdropping technique "functioned whether the phone was powered on or off." Some handsets can't be fully powered down without removing the battery; for instance, some Nokia models will wake up when turned off if an alarm is set.

The case is United States v. Tomero, 2006 U.S. Dist. LEXIS 85560 (S.D. N.Y. November 27, 2006).

Continuing from the CNET article with the links intact (I encourage readers to check the links):

The U.S. Commerce Department's security office warns that "a cellular telephone can be turned into a microphone and transmitter for the purpose of listening to conversations in the vicinity of the phone." An article in the Financial Times last year said mobile providers can "remotely install a piece of software on to any handset, without the owner's knowledge, which will activate the microphone even when its owner is not making a call."

Nextel and Samsung handsets and the Motorola Razr are especially vulnerable to software downloads that activate their microphones, said James Atkinson, a counter-surveillance consultant who has worked closely with government agencies. "They can be remotely accessed and made to transmit room audio all the time," he said. "You can do that without having physical access to the phone."

So far, this phenomenon is limited by the wiretap law, but where will it end? Where else will the government seek to use a dormant cellphone as an eavesdropping device?

A home visit of a probationer is not a search, and a search cannot occur without cause. State v. Moody, 2006 MT 305, 334 Mont. 517, 148 P.3d 662 (November 28, 2006):

Since a home visit is not a search, a probation officer may not open drawers, cabinets, closets or the like; nor may the officer rummage through the probationer's belongings. While a home visit has the potential to turn into a search pursuant to an officer's plain view observations, it must remain within the parameters of a home visit unless or until there is reasonable cause to engage in a search.

Everybody fleeing from a Cadillac Escalade on the street amounted to an abandonment. During towing, the towing operator conducted an inventory and found contraband. State v. Branam, 2006 MT 300, 334 Mont. 457, 148 P.3d 635 (November 22, 2006).*

A temporary license tag is not cause for a stop, and that led to a drug dog coming and a search. State v. Johnson, 2006 ND 248, 724 N.W.2d 129 (November 28, 2006):

[*P10] There was no evidence here of erratic driving or speeding, nor did the temporary registration sticker stick out as unusual. Wolf stopped the vehicle because, in his experience, "many people drive on the sticker beyond the thirty days that's allotted." However, an officer's belief "many people" violate the thirty-day temporary registration law is an over-generalization that does not give rise to reasonable suspicion that Johnson's automobile was not lawfully registered. See United States v. Yousif, 308 F.3d 820, 828 (8th Cir. 2002) ("General profiles that fit large numbers of innocent people do not establish reasonable suspicion.").

A faded and unreadable temporary tag can, however, justify a stop. State v. Oliver, 2006 ND 241, 724 N.W.2d 114 (November 28, 2006).

Defendant's personal computer was connected in his dorm room to the Air Force computer network at the Prince Sultan Air Base in Saudi Arabia. The defendant failed to set up sufficient security measures to block access to the computer by others through the system. When officers searched his room for the computer, it was treated as a workplace search under O'Connor v. Ortega. United States v. King, 2006 U.S. Dist. LEXIS 86370 (M.D. Ala. November 28, 2006). As to standing:

The Defendant objects to the finding that the Defendant did not have a reasonable expectation of privacy in the computer files located on his personal computer in his private dorm room on the Prince Sultan Air Base. Normally, courts likely would afford a reasonable expectation of privacy to computer files located on a personal computer in a private dorm room. In this particular situation, however, the Defendant connected the computer to the Air Base's network. Through this connection to the network, others could view the Defendant's computer files because of network policies and implemented procedures. Defendant admittedly was aware of such policies and procedures. Defendant attempted to install security settings on his personal computer that would override the network policies, but this attempt ultimately was unsuccessful. Furthermore, the Defendant never took any measures to assure that his security settings were functioning appropriately.

. . .

Most important, the defendant in Katz had no reason to believe that the privacy of his conversation was at risk. He stepped into a public phone booth, closed the door behind him and placed a call with no knowledge of any potential surveillance. In contrast, the Defendant in the present situation connected his computer to the Air Base's network, knowing that the users of that particular network were subject to monitoring of their traffic and activities. By connecting to the network and exposing his computer to the network's "share," the Defendant placed his computer files in plain view for other users of the network. His local settings attempted to limit that access, but were unsuccessful. He would have known that if he had attempted to access his personal computer from an outside computer, but he did not.

As opposed to merely seeking to preserve privacy like the defendant in Katz, the Defendant in this case consciously exposed his computer files to anyone using the network and subsequently attempted to thwart the others' access to these files. In order to have a reasonable expectation of privacy for those files, however, the Defendant would have to assure that the measures taken were successful. He did not. Therefore, he had no reasonable expectation of privacy.

As to the workplace search:

If the Defendant had no reasonable expectation of privacy, then he has no standing to object to the search. The Magistrate Judge's Recommendation notes this, but then further analyzes whether the warrantless search conducted by Sgt. Lamar, the Base's information protection officer, was nonetheless appropriate because of its nature as a workplace search. The Magistrate Judge ultimately found, as her Recommendation reflects, that the search was appropriate as a workplace search. The Defendant contends that the court's finding that the government conducted a proper workplace search is erroneous.

The objection contends that this search by Sgt. Lamar was part of a criminal investigation authorized by Sgt. O'Brien, and, as such, it could not be a workplace search. This characterization of workplace search law, however, is inaccurate. As the evidence indicates, Sgt. Lopez initially found pornographic files violating General Order-1A (an order preventing the possession of any pictures depicting the female body between the neck and the knees, which was offensive to the Saudis). Lopez reported this finding to Sgt. O'Brien, who asked Sgt. Lamar to investigate. The testimony is not entirely clear whether a criminal investigation had begun at this point in time or not. Regardless, even assuming that Sgt. Lamar's search was part of a criminal investigation, this search also was based on work-related misconduct, the violation of General Order-1A. As the Supreme Court noted in O'Connor v. Ortega, 480 U.S. 709, 711 (1987), the probable cause requirement is sometimes impracticable "for legitimate work-related, non-investigatory intrusions as well as investigations of work-related misconduct.... [P]ublic employer intrusions on the constitutionally protected privacy interests of government employees for non-investigatory, work-related purposes as well as investigations of work-related misconduct should be judged by the standard of reasonableness under all circumstances." The highlighted language above indicates that, even though Sgt. Lamar's search of the Defendant's files was arguably part of a criminal investigation, that investigation was also an investigation of work-related misconduct. Essentially, they were one in the same. Therefore, merely arguing that the search was part of a criminal investigation does not automatically defeat the search's contemporaneous status as a workplace search.

Comment: Other courts are contra. This court grants more deference to the government than some other cases.

Officers responding to a disturbance with gunshot found the complainant who was complaining about her live-in boyfriend firing a sawed off shotgun in the house. She validly consented to a search. United States v. Parker, 469 F.3d 1074 (7th Cir. December 1, 2006).*

A malicious prosecution claim cannot be brought under § 1983. Albright v. Oliver, 510 U.S. 266, 268, 271, 274-75 (1994). Whitesides v. Rye, 2006 U.S. Dist. LEXIS 86314 (D. Neb. November 27, 2006).