NYT: Border Searches Face New Challenges in Digital Age by Susan Stellin:

The government has historically had broad power to search travelers and their property at the border. But that prerogative is being challenged as more people travel with extensive personal and business information on devices that would typically require a warrant to examine.

Several court cases seek to limit the ability of border agents to search, copy and even seize travelers’ laptops, cameras and phones without suspicion of illegal activity.

“What we are asking is for a court to rule that the government must have a good reason to believe that someone has engaged in wrongdoing before it is allowed to go through their electronic devices,” said Catherine Crump, a lawyer for the American Civil Liberties Union who is representing plaintiffs in two lawsuits challenging digital border searches.

While the officer’s testimony seemed slightly exaggerated at times, it still showed probable cause to believe the defendants were smoking marijuana in the car stopped at an intersection. Another in the car admitted to smoking marijuana, and that undermined the defense theory that it was planted by the first officer. United States v. McCrimmon, 2012 U.S. Dist. LEXIS 170592 (S.D. N.Y. November 26, 2012).*

Officers had highly specific information from a CI who obviously saw what he was reporting, and that was sufficient for probable cause and nexus for a stop of the defendant’s car. State v. Vasquez, 2012 Tenn. Crim. App. LEXIS 971 (November 28, 2012).*

Defendant’s successor habeas was denied. The first petition alleged IAC for not challenging a search of a videotape in defendant’s house consented to by his live-in girlfriend, where the tape showed defendant having sex with her minor daughter. She had the ability to consent. Thompson v. Ballard, 2012 W. Va. LEXIS 951 (November 30, 2012) (memorandum).*

A drug dog alerted at defendant’s apartment door, and this supported a search warrant. The court declines to follow Jardines v. Florida, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012), despite the fact it was argued a month earlier [and would thus come down any day now], instead following United States v. Scott, 610 F.3d 1009 (8th Cir. 2010), where such a sniff was not unlawful. United States v. Givens, 2012 U.S. Dist. LEXIS 170649 (N.D. Iowa November 30, 2012).* [Note: Davis would support this search because of Scott even if Jardines is reversed by SCOTUS. Scott was decided in July 2010, and this search was the following December.]

Defendant’s stop was based on an apparent drug deal going down in it. The use of a drug dog after that was with reasonable suspicion. The search of his hotel room wasn’t invalid as a fruit of the poisonous tree since there wasn’t any illegality. United States v. Jackson-Forsythe, 498 Fed. Appx. 224 (4th Cir. 2012).*

Defendant’s arrest was reasonable, so his statements come in. United States v. Foster, 2012 U.S. Dist. LEXIS 169794 (D. Md. November 28, 2012).*

Crediting the officers’ testimony that defendant consented to a patdown that produced a sawed-off shotgun was not clearly erroneous. United States v. Oldham, 2012 U.S. App. LEXIS 24686, 2012 FED App. 01227N (6th Cir. November 28, 2012). Clearly erroneous explained:

The district court did not commit clear error in crediting the officers' testimony that the encounter and pat-down search were consensual. Nothing in the officers' reports, in their testimony, or in any evidence contradicts their version of the events.

There 'can virtually never be clear error' where the 'trial judge's finding is based on [her] decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence,' and where that finding is 'not internally inconsistent.'

Brooks v. Tennessee, 626 F.3d 878, 897 (6th Cir. 2010) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985)). The district judge credited the officers' testimony, which is uncontradicted by anything but Oldham's testimony. That determination cannot constitute clear error.

The juvenile had an early meeting with her school counselor, and, after the meeting, she had to leave her bookbag because of a school rule against bookbags in the hallway. Four times during the day she came and asked for access to the bookbag which was denied. Based on that, the counselor decided to search the bookbag, and marijuana and paraphernalia was found. The search was without reasonable suspicion of any violation of law or rule, and was unconstitutional. T.S. v. State, 100 So. 3d 1289 (Fla. 2d DCA 2012).

Defendant was stopped on a bicycle for having no light. It should have been viewed the same as a traffic stop with basic questioning. Defendant was asked if he had a weapon and he volunteered he did. That was not unconstitutional. State v. Brown, 2012 Ohio 5532, 2012 Ohio App. LEXIS 4806 (2d Dist. November 30, 2012).

Fleeing from a car stopped for a traffic violation is not being “stopped” for Fourth Amendment purposes. United States v. Sebbern, 2012 U.S. Dist. LEXIS 170550 (E.D. N.Y. November 30, 2012).*