by Anthony Accurso

The U.S. Court of Appeals for the Fourth Circuit reversed and remanded for resentencing a case because the U.S. District Court for the Western District of North Carolina imposed 26 conditions of supervision as part of its written order, but had made no mention of supervision conditions ...

by Anthony Accurso

The Supreme Court of Idaho clarified the rule of evidence regarding the admissibility of prior false allegations of rape made by victims, announced a three-part test to assess the admissibility of such evidence, and vacated a defendant’s conviction.

Steven Michael Chambers was charged with raping N.S. in ...

by Anthony Accurso

The Supreme Court of the State of Colorado reversed its earlier precedent and announced a new set of rules for determining when a defendant should be granted presentence confinement credit (“PSCC”).

Derick Wayne Russell was in community confinement following unrelated convictions in Jefferson County and Douglas County, Colorado, in December 2015 and January 2016, respectively. He was terminated from the program for a violation and taken into custody on May 26. On June 1, Jefferson County sentenced him to three years’ imprisonment, to run concurrently with his Douglas County sentence. Douglas County sentenced him on October 13 to six years’ imprisonment, also to run concurrently with his Jefferson County sentence.

At sentencing in Douglas County, the district court calculated his PSCC time, awarding him PSCC for time spent confined prior to his sentence to community corrections, the time he served in residential community corrections, and the days he spent in custody prior to his resentencing in Jefferson County. The court denied him PSCC for the period between June 1 and October 13 because, under the but-for causation test articulated in People v. Torrez, 403 P.3d 189 (Colo. 2017), he could not be awarded this time since ...

by Anthony Accurso

The U.S. District Court for the Western District of Washington in Seattle ruled that the FBI conducted an illegal search of a defendant’s phone by powering it on to inspect the lock screen, resulting in suppression of information obtained from the search.

Joseph Sam was arrested pursuant to an indictment on conspiracy to commit robbery, robbery, and assault resulting in serious bodily injury. When Sam was arrested, Tulalip Police seized his phone. He was booked into police custody, and his phone was inventoried, including determining whether the phone was locked and attempting to place the phone in airplane mode to prevent remote wiping.

On February 13, 2020, the FBI temporarily obtained Sam’s phone from police inventory, powered it on, and took a photo of the lock screen, which displayed the user’s name as “<<<Streezy.” Sam’s lawyer filed a motion to suppress this evidence as the result of an illegal search.

The Court briefly discussed the governing law, starting with the Fourth Amendment’s prohibition against unreasonable searches and seizures. The Court explained that the “default rule is that a search is unreasonable unless conducted pursuant to a warrant.” Veronica School District 47J v. Acton, 515 U.S. 646 ...

by Anthony Accurso

A June 24, 2020, article in The New York Times by Kashmir Hill recounts the wrongful imprisonment of a Detroit man due to misuse of facial-recognition software.

In January 2020, Robert Julian-Borchak Williams was working at an automotive supply company when he received what he thought was a prank phone call directing him to turn himself into the Detroit P.D. When he arrived home from work, he quickly learned it was not a prank, as he was handcuffed before his wife and two daughters.

He was booked Thursday afternoon, which included a mugshot, fingerprinting, and DNA sampling.

Around noon the next day, during his interrogation, he was shown a blurry photo from a security camera taken at a Shinola store where five timepieces worth $3,800 total were shoplifted in October 2018.

“Is this you?” asked one detective.

The second photo, a close-up of the first, also was on the table. Williams held it up to his face to contrast how much it definitely did not look like him.

“No, this is not me,” said Williams. “You think all Black men look alike?”

Williams turned over another paper on the table, which revealed a photo of the suspect ...

by Anthony Accurso

Minnesota officials have used a variety of digital surveillance tools to track protestors, but now they openly admit to using contact-tracing apps to do so.

According to Minnesota Public Safety Commissioner John Harrington, officials in the state have been using contact-tracing to map protestor affiliations and movements. This has led officials to conclude that much of the protest activity is being fueled by people from the “outside coming in.” Harrington was circumspect about which apps or processes commonly used for contact-tracing are now being used against protestors, though a Twitter feed titled “Minnesota Contact Tracing,” which has been leaking police activities, did specify that officials are contact-tracing arrestees.

This is just the latest tool of big tech to be deployed against law-abiding citizens. Minneapolis Police and the Minnesota Fusion Center have also been employing other well-known tech to track citizens. Briefcam, Ring doorbell cameras, Axon police bodycams, ShotSpotter, and license plate readers collect hundreds of thousands of hours of video footage that is analyzed by software such as Clearview AI to identify individuals through facial recognition algorithms.

CCTV footage is also now being fed through Arxys Milestone software, which uses “video motion detection” and “video analytics” to ...

by Anthony Accurso

Researchers have developed a new system that could be used to ensure that the evidence processed in a laboratory is the same evidence that was collected in the field (e.g., from a crime scene).

Engineers from Duke University and NYU’s Tandon School of Engineering have demonstrated a method of adding a sample of artificially created genetic material to evidence, which will allow lab workers to match the samples processed in the lab. “If you think about conventional encryption techniques, like security for a smartphone, there’s usually a passcode that only one person knows, “said Mohamed Ibrahim, a system-on-chip designer at Intel Corp. and a Ph.D. graduate of Duke. “Our idea is to inject non-harmful material into genetic samples immediately when they are collected in the field that act as a similar password. This would ensure that the samples are authentic when they reach the processing stage.”

Most genetic identification is done using polymerase chain reaction (“PCR”), a technique for sequencing a few short sections of human DNA, which can be used to accurately identify the person who left biological material at the scene of a crime. The FBI has identified 13 sites on the human genome which, ...

by Anthony W. Accurso

SpyCloud, a company that collects private information on people, mostly info exposed through data breaches, sells access to its databases to anyone willing to pay for it, including law enforcement. While it currently operates in an area of law mostly untouched by precedent, people should be ...

by Anthony Accurso

A study from the UK found that triaging digital evidence can lead to oversights and misinterpretation when the process is not designed or implemented in a way that guards against such failures.

The data, published in the journal Policing and using data collected between January 2017 and ...

by Anthony Accurso

The Supreme Court of California reversed a judgment of the Court of Appeal by holding that a defendant need not be released from custody in order to demonstrate living an ‘‘honest and upright life,” a prerequisite to having his conviction expunged.

Misael Vences Maya was convicted of his latest conviction (of several) for DUI and a separate conviction for felony possession of a controlled substance. Under Penal Code § 1170.18, subds. (f) and (g), he successfully applied to have the possession conviction reduced to a misdemeanor. He then sought to have the conviction expunged under Penal Code § 1203.4a(a), which contains the ‘‘honest and upright life” requirement.

Maya had been in immigration custody since completing his state sentence, and during that time, he refrained from drug use, attended Alcoholics Anonymous, and participated in fire camp, which, according to Maya, demonstrated that he had been living an honest and upright life as required by the statute.

The district court did not agree. While it did not mention his conduct while in custody, the court stated that “being in custody for substantial periods of time” is not equivalent to living “an honest and upright life.”

The Court of Appeal ...