Erin Smith Dennis, A Mosaic Shield: Maynard, the Fourth Amendment, and Privacy Rights in the Digital Age, 33 Cardozo L. Rev 757 (2011). From the conclusion:

In Smith, the Court’s wholesale adoption of the third-party doctrine effectively stunted Fourth Amendment protections at the advent of the digital revolution. Maynard opens up a much-needed pathway for reinvigorating Fourth Amendment protections in an age of rapidly ad-vancing technology, where reliance on third-party intermediaries is no longer optional, but part and parcel of a normal productive existence. Effective balancing of the public’s “reasonable expectation of privacy” against law enforcement concerns cannot occur under a judicial doctrine which eviscerates that expectation by fiat. Instead, it necessitates a statutory scheme that allows room for judicial analysis and evolution of what a reasonable expectation of privacy is with regard to electronic communications.

The amount and tenor of information available to law enforcement via the Pen Register statute can easily be aggregated into a mosaic re-vealing intimate details about an individual, ad infinitum. If the Fourth Amendment is to continue to protect citizens against unreasonable searches and seizures, it must protect the information that we so value, be it physical or intangible.

The Maynard decision articulating a mosaic theory of privacy at the very least illustrates the mounting tension between Fourth Amendment privacy protections and rapidly advancing technology. More importantly, it signals a new chapter in the judiciary’s efforts to redraw and adapt the Fourth Amendment parameters for the digital age, thereby guaranteeing that its safeguards remain vital, responsive, and reliable in a rapidly changing technological landscape.

Defense counsel waived the motions to suppress on the record because he needed some exculpatory evidence from the search and statement, and that was reasonable strategy. In dicta, the court says that the search incident, including the cell phone, had “no colorable basis.” People v Nguyen, 2011 NY Slip Op 9216, 90 A.D.3d 1330, 935 N.Y.S.2d 195 (3d Dept. 2011). Practice pointer: In § 45.18 of the Treatise, it is observed that sometimes the police likely violated the client’s right to be free from unreasonable search and seizure, but the product of the search may even be more helpful to the case as a whole: “Accordingly, counsel must always ultimately determine whether the defendant’s trial strategy would be aided or harmed by the admission or exclusion of the allegedly illegally seized evidence.” I’ve had cases where the product of the search wasn’t critical to the prosecution’s case but was actually exculpatory to the defense. So, why file a motion to suppress if you need it?

When the computer check revealed an order of protection on the motorist being detained, the officer was justified in being more concerned for his own safety. Thus, it was not improper for the officer to inquire into that, and it didn’t extend the stop any. United States v. Green, 2011 U.S. Dist. LEXIS 146916 (W.D. Va. December 21, 2011).*

While Trooper Johnson also inquired about topics other than the traffic infractions, such as Green’s travel plans and Green’s reference to his lawyer, these brief questions did not run afoul of the scope or duration component of Terry’s second prong. See Johnson, 555 U.S. at 333 (holding that a law enforcement officer’s “inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure,” provided the questions “do not measurably extend the duration of the stop”).

At approximately 10:14 a.m., dispatch advised Trooper Johnson that Green had a protective order against him, which Green confirmed. Upon receiving this report, Trooper Johnson requested additional information regarding the protective order. As Trooper Johnson noted during the suppression hearing, the existence of a protective order raises officer safety concerns, since the order can be indicative of assaultive or threatening behavior. Because there is no indication that Trooper Johnson’s inquiry regarding the protective order measurably prolonged the stop, the court is persuaded that it did not alter the stop’s lawful character. See Soriano-Jarquin, 492 F.3d at 500 (emphasizing that “[i]t is well established that officers performing a lawful stop are ‘authorized to take such steps as [are] reasonably necessary to protect their personal safety’”) (quoting United States v. Hensley, 469 U.S. 221, 235 (1985)).

In a prosecution for overprescribing, the government showed that it was reasonable to seize voluminous medical records and a computer for later search off premises. United States v. Durante, 2011 U.S. Dist. LEXIS 147010 (D. N.J. December 19, 2011).* [Note: I don’t think any business would want the FBI or DEA on premises for weeks while they conduct a search of the records. It only makes sense to enable them to take the records and copy them as needed and return the originals when done. If the defendant has a problem with the government having the records or the computer, he has remedies under Rule 41 for unreasonableness and interference with the business, and the court can monitor it, or get a master or USMJ to.]

There was probable cause for issuance of the search warrant in this case, and the temporary seizure of the premises pending arrival of a search warrant was reasonable. People v Pinkney, 2011 NY Slip Op 9212, 2011 N.Y. App. Div. LEXIS 9034 (3d Dept. December 22, 2011).*