An officer sitting at a red light at 1 am observed defendant’s car pull off the road ahead and stop. It was reasonable for the officer to assume that the motorist was experiencing some sort of distress or problem, and the officer could pull up to inquire under the community caretaking function. Gonzales v. State, 369 S.W.3d 851 (Tex. Crim. App. 2012).*

Petitioner’s stop was with reasonable suspicion of OWI, so his arrest and revocation of his driving privileges for refusing a breath test was permissible. Court of appeals reversed. In re Refusal of Anagnos; States v. Anagnos, 2012 WI 64, 341 Wis. 2d 576, 815 N.W.2d 675 (2012).*

Probable cause came from matching defendant’s vehicle to several area gas station robberies, and then finding the car outside defendant’s home. The fact it did not appear in the last video of a robbery was not determinative. United States v. Mercado-Cañizares, 887 F. Supp. 2d 379 (D. P.R. 2012).*

Defendant was stopped in a high crime area at 1 am for not signaling a left turn on a bicycle. He produced an ID card and was asked some basic questions. He was relaxed and made eye contact but appeared potentially under the influence, and riding a bike under the influence was an offense. When asked about a prior arrest for having a gun he became extremely nervous, and then a frisk was started, and he told them where the gun was. The stop became unreasonable in its length. The prior arrest for a gun did not justify extending this stop. State v. Steffens, 250 Ore. App. 742, 282 P.3d 888 (2012):

The central fact on which Mawdsley based his suspicion that defendant had a weapon, and the only fact on which the trial court relied, was that defendant had been arrested the previous month for possessing a concealed handgun. However, prior arrests or convictions—even recent ones—without more, do not provide reasonable suspicion that a person is currently engaged in illegal conduct. State v. Frias, 229 Ore. App. 60, 65, 201 P.3d 914 (2009) ("[W]hatever the inference that could be reasonably drawn about [the] defendant's past drug use, there was no evidence of a current or imminent crime * * *. The fact that [the] defendant was awaiting sentencing on a drug charge does not give rise to reasonable suspicion that, at the time the officer prolonged the stop, [the] defendant was engaged in criminal activity."); State v. Holcomb, 202 Ore. App. 73, 77-78, 121 P.3d 13, adh'd to as modified on recons, 203 Ore. App. 35, 125 P.3d 22 (2005) (rejecting the state's argument that "a person's recent drug use is sufficient, without more, to establish reasonable suspicion of present drug possession"); see also Dyer, 157 Ore. App. at 329 (the fact that the defendant had once been convicted of unlawfully possessing a weapon in a public building did not provide reasonable suspicion that he posed a threat to an officer during a traffic stop).

The police had a drug dealer’s iPhone in their possession, and defendant text messaged it. The officer pretended to be the drug dealer, and they text messaged back and forth. Defendant was arrested at a meet. None of this violated the Fourth Amendment or the Washington Constitution’s privacy provision. State v. Hinton, 169 Wn. App. 28, 280 P.3d 476 (2012):

¶17 The reasoning underlying the Wojtyna decision applies equally to Hinton's text messages sent to Lee's iPhone. Like in Wojtyna, Hinton transmitted messages to a device—Lee's iPhone—over which he had no control. See Wojtyna, 70 Wn. App. at 692. By doing so, he voluntarily ran the risk that his messages, once delivered, would be received by whomever possessed the iPhone, and he had no control over what that person might do with that message. See Wojtyna, 70 Wn. App. at 692. Like in Wojtyna, the State did not monitor every message Hinton sent, “but rather, where his [message] was independently displayed and retrieved from the place to which he intended to send it.” Wojtyna, 70 Wn. App. at 692. See also State v. Goucher, 124 Wn.2d 778, 781, 784, 881 P.2d 210 (1994) (police detective did not violate article I, section 7 [or the Fourth Amendment] when he answered the telephone while executing a search warrant at a suspected drug dealer's home, told the caller that he “was handling business,” and arranged a drug transaction with the caller; an individual has no reasonable expectation of privacy when he “voluntarily expose[s] his desire to buy drugs to someone he did not know.”).

In State v. Roden, 169 Wn. App. 59, 279 P.3d 461 (2012), the court found implied consent under similar facts:

¶17 Under the implied consent reasoning of the court in Townsend, Roden impliedly consented to the recording of his text messages on Lee's iPhone. Roden voluntarily sent the text messages to Lee's iPhone with the expectation that Lee would read them. In doing so, he also anticipated that the iPhone would record and store the incoming messages to allow Lee to read them. Cell phones, like computers, are “message recording device[s],” a fact that Roden must have understood as a user of text messaging technology on cell phones. See Townsend, 147 Wn.2d 676. Accordingly, Sawyer did not violate Roden's rights under the Act.

Stop and frisk should not be taken lightly. Even crediting the officer’s testimony, this stop and frisk was completely unjustified. The trial court’s order permitting it “broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures.” In re Darryl C., 2012 NY Slip Op 05118 (1st Dept. June 26, 2012):

The law imposes a strict standard for a stop and frisk, requiring an officer to have a reasonable suspicion of an individual's involvement in criminal activity (CPL 140.50[1]; People v De Bour, 40 NY2d 210, 223 [1976]) and then "knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety" (CPL 140.50[3]; People v Batista, 88 NY2d 650, 654 [1996]). The motion court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. Such ruling broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures (NY Const art I, § 12; US Const 4th Amend). The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built. The ramifications go beyond this single case. Widespread, aggressive police tactics in street encounters have recently raised concerns in other judicial forums. In People v Holland (18 NY3d 840 [2011, Lippman, Ch.J., dissenting]), the Chief Judge took issue with his own Court's dismissal of the appeal as "not only unsound jurisdictionally, but erosive of this Court's role in articulating the law governing police-civilian encounters" (id. at 845). He stated:

"When courts with the factual jurisdiction to make attenuation findings employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court's proper function to resolve ... This is not an exaggerated or purely academic concern in a jurisdiction where, as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime" (id.).

In a footnote, Chief Judge Lippman made reference to Floyd v City of New York (8 F Supp 2d 417 [SD NY 2011]), in which the United States District Court noted, "[T]he policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching almost 600,000 a year" (id. at 422 [internal quotation marks omitted]). The District Court has now granted class action status to the plaintiffs in that case to challenge the constitutionality of the New York Police Department's stop-and-frisk program (Floyd v City of New York, 2012 WL 1868637, 2012 US Dist LEXIS 68676, [SD NY, May 16, 2012, No. 08-Civ-1034 (SAS)]).

While the dissent's opening paragraph frames the issue in somewhat dramatic terms, the actual testimony in this case presents a picture that is more pedestrian in all senses of the word. Appellant, a 14-year-old boy standing alone on the street, was stopped in broad daylight, by a police officer who believed appellant to be a truant, not a gang member, holding an object that the officer could not identify. The subsequent search was conducted without any evidence that the appellant was engaged in criminality or that he represented any threat to the safety of the officer. The motion court's ruling would, in effect, give the police the authority to stop and frisk a pedestrian who is not a suspect of a crime.

The facts herein, even crediting the officer, prohibit the search undertaken in this case. ...

NLJ.com: High court's GPS ruling may have minimal impact because cellphone tracking is legal by Richard Q. Hark:

The U.S. Supreme Court recently held in U.S. v. Jones that the warrantless use of a government-placed GPS tracking device on a defendant's vehicle constitutes a trespass, requiring suppression of all evidence generated there from. Some thought Jones could become a significant step in Fourth Amendment jurisprudence protecting defendants' rights. However, in 2010, Congress amended the Stored Communications Act (SCA), 18 U.S.C. 2701, severely curtailing Jones' importance. This is because a vast majority of people in the United States voluntarily carry a GPS tracking device — their cellular telephone — to which the 2010 SCA amendments gave the government almost unfettered access.