NYTimes: Courts Divided Over Searches of Cellphones by Somini Sengupta:

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

A Rhode Island judge threw out cellphone evidence that led to a man being charged with the murder of a 6-year-old boy, saying the police needed a search warrant. A court in Washington compared text messages to voice mail messages that can be overheard by anyone in a room and are therefore not protected by state privacy laws.

In Louisiana, a federal appeals court is weighing whether location records stored in smartphones deserve privacy protection, or whether they are “business records” that belong to the phone companies.

One Lecroy was wanted for an FTA after a traffic accident. Based on a tip of unknown reliability he’d been staying there, they went to defendant’s home at night to find him. Shining flashlights through the window, they found people asleep inside. “Trooper Havens determined that an enquiry of the home's occupants was ‘[a]bsolutely’ appropriate and instructed Trooper Gangloff to knock. In a process that lasted ‘maybe two seconds, three seconds[,]’ Gangloff banged on the door, pushing it open, allowing the smell of burned marijuana to drift outside, and Trooper Havens entered.” After they were in, they told the occupants they weren’t under arrest, but they weren’t free to leave either because the officers were getting a search warrant. The search under the warrant was unconstitutional under the Fourth Amendment, not even deciding the state constitution. The court discussed the weighty privacy concerns of nighttime searches and the state implications of inevitable discovery and concluded the search was just indefensible. Commonwealth v. Berkheimer, 2012 PA Super 253, 57 A.3d 171 (2012) (en banc):

In Mason, law enforcement had sought a warrant prior to entering the defendant's home and obtained the warrant based on information gleaned without resort to illegal entry, thus allowing at least the possibility that the Commonwealth could comport with Fourth Amendment jurisprudence delineating the independent source rule. In response, the Court identified Article I, Section 8 as a source of additional rights and protections that could not be met under the aggravated circumstances in that case. By contrast, while the circumstances in this case exceed those in Mason when measured by the injury they inflicted to the defendants' right to privacy, they also fall substantially short of demonstrating an independent source as required by Murray. Although the search is thus doubly infirm, we need only rely on Fourth Amendment jurisprudence to strike it down. Quite simply, the record in this case identifies no source whatsoever unsullied by the taint of illegality. Therefore, the inevitable discovery exception is not satisfied and the evidence on which the Commonwealth relies was obtained unlawfully.

For the foregoing reasons, we conclude that the trial court erred in denying the defendants' joint motion for suppression. As Mr. Justice Brandeis observed almost a century ago: "If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." Edmunds, 586 A.2d at 906 (quoting Olmstead v. United States, 277 U.S. 438, 485, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting)). "Although the exclusionary rule may place a duty of thoroughness and care upon police officers and district justices in this Commonwealth, in order to safeguard the rights of citizens under [the Fourth Amendment and] Article I, Section 8, that is a small price to pay, we believe, for a democracy." Id. In the absence of the Commonwealth's proffered evidence, obtained by palpably unlawful government action, there is no evidence that these defendants engaged in any act that was itself unlawful. Consequently, they are entitled to a full discharge.

Defendant who was sitting at his desk and told police that a cooler at his feet had “more weed” in it, and pushed it in the direction of the officers impliedly consented to its search. United States v. Bowser, 2012 U.S. App. LEXIS 24162, 2012 FED App. 01196N (6th Cir. November 20, 2012).*

Defendant’s consent came during the unlawful stop, not after, so reconsideration of the prior opinion is granted and the judgment reversed. State v. Canfield, 251 Ore. App. 442, 283 P3d 438 (2012), reversed. State v. Canfield, 253 Ore. App. 574, 291 P.3d 775 (2012).*

The district court did not plainly err in finding the police had both probable cause and exigent circumstances for their entry, without telling us what it is. United States v. McKoy, 2012 U.S. App. LEXIS 24122 (4th Cir. November 20, 2012).*

While Massachusetts decriminalized possession of small amounts of marijuana for a search of the car, the finding of a warrant on defendant justified his arrest and search because it would have inevitably have happened at the police station anyway. Commonwealth v. Lobo, 82 Mass. App. Ct. 803, 978 N.E.2d 807 (2012).*

Defendant and others were suspected, from looking at hours of casino video surveillance, of conspiring to rob winning casino patrons, following them from Lawrenceburg, Indiana back to Cincinnati and robbing them at their homes. Officers developed probable cause for defendant, and the inventory search of her vehicle when she was arrested followed SOP and was done in good faith and not as a pretext for criminal investigation. State v. Erkins, 2012 Ohio 5372, 2012 Ohio App. LEXIS 4712 (1st Dist November 21, 2012).*

Defendant drifted over the fog line, and he was stopped. The officer wrote him a warning, and told him he was free to leave. Then he asked if he could ask more questions, defendant agreed, and he asked about whether there was anything illegal in the car. Defendant’s heart rate obviously jumped. Defendant validly consented to a search of the car. United States v. Salas, 2012 U.S. Dist. LEXIS 165008 (E.D. Okla. November 1, 2012).*