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The Habeas Citebook Ineffective Counsel

Articles by Anthony Accurso

Minnesota Supreme Court: Non-Identifying Information About CI Must Be Disclosed Upon Request

The Supreme Court of the State of Minnesota affirmed a decision by the Court of Appeals, which held the district court erred in denying a defendant’s request for non-identifying information about a confidential informant (“CI”).

In February 2017, law enforcement filed an affidavit requesting a search warrant for the home of Tyler James Dexter. The affidavit claimed a CI had visited Dexter’s home within the previous 72 hours and saw firearms and large quantities of marijuana. Police executed the warrant, found the marijuana and guns, and charged Dexter with fifth-degree possession of a controlled substance under Minn. Stat. Section 152.025, subd. 1(1).

Prior to trial, Dexter filed for information relating to the CI, both their identity and information about their relationship with police. The district court denied this information, citing the State’s common-law privilege “to withhold from disclosure the identity of persons who furnish information” to law enforcement. See Roviaro v. United States, 353 U.S. 53 (1957).

Dexter then filed to suppress the evidence of the search on the grounds that the CI was an agent of the State and had search his property illegally. This motion was denied because Dexter lacked information on the CI’s ...

Massachusetts Supreme Court: Officer’s Handling of Cellphone Exceeded Scope of Inventory Search

The Supreme Judicial Court of the Commonwealth of Massachusetts (“SJC”) upheld a superior court’s order suppressing evidence obtained from a cellphone because the search of the cellphone was unsupported by probable cause, and the officer failed to follow guidelines relating to inventory of property.

Tomas Barillas was arrested in March 2017 on an outstanding warrant for three different criminal cases for larceny and drug offenses.

Lynn police had also received a tip that he was responsible for the fatal stabbing of Jason Arias. Lieutenant Thomas Reddy of the Lynn Police Department and Trooper Matthew Wilson of the Massachusetts State Police both participated in the arrest at the home of Barillas’ parents, but it was Trooper Wilson who, upon arresting Barillas, patfrisked him and seized a cellphone from his pocket.

Barillas was transferred to the Lynn Police Department Station. Trooper Wilson kept the cellphone on his person instead of submitting it as part of the detainee’s property, as was required by policy. Barillas’ father, Eduardo, and his minor brother, James (a court pseudonym), were voluntarily interviewed while Barillas was being booked. James disclosed to Wilson that the cellphone belonged to him, not Barillas, and described its unique markings, ...

Myth of Technology as an Equalizing Force in Criminal Justice

Since the rise of social media and ever-present cellphones with cameras, the narrative around these developments has been that justice is rapidly democratizing.

While many law enforcement failures and abuses have been exposed by citizens with technology, this trend is not the case for all technology. “Access to digital forensics can mean the difference between exoneration and prison time,” reports The Appeal.

For instance, DNA technology is (mistakenly) regarded as a neutral form of incontrovertible proof. But this perception ignores asymmetries in resources and incentives between prosecutors and defense counsel. Prosecutors regularly oppose testing samples that can exonerate people, including people scheduled to be executed.

DNA evidence has now opened up to unregulated use of genealogy databases by law enforcement to track suspects. Policies vary from agency to agency, and some, like the Orlando Police Department, have no policies at all.

“In California, an innocent twin was jailed. In Texas, police met search guidelines by classifying a case as sexual assault but after an arrest filed charges of burglary,” according to Paige St. John of the Los Angeles Times.

The Black Lives Matter movement has been successful at advocating for the use of body cameras for ...

Fourth Circuit Requests Further Information on Stingray Device to Determine Whether It Violates Fourth Amendment Rights

The U.S. Court of Appeals for the Fourth Circuit remanded a case to the U.S. District Court for the District of Maryland because the lower court failed to provide sufficient development on the record to determine whether the use of a stingray device violated the defendant’s rights.

Kerron Andrews was wanted for attempted murder in 2014 when Baltimore City Police used a cell-site simulator (aka stingray device) marketed as “Hailstorm” to track him down inside an apartment in Baltimore, Maryland.

After his arrest, he prevailed on a motion to suppress contraband found during his arrest because the state court decided the warrant used to locate him was too vague since it did not disclose the use of the Hailstorm, which the court described as a “far-reaching new search technology.” State v. Andrews, 134 A.3d 324 (Md. Ct. Spec. App. 2016).

Andrews then sued the city in federal court for conducting a search without a valid warrant. The federal court found that the warrant was sufficient in its vague description of the Hailstorm simulator to support the warrant and thus the search. It did so without conducting “factfinding into (1) the surveillance capabilities and configuration of the ...

Strategies to Help Police Address Citizens With Special Needs

A New Jersey man reaches out to police ahead of a possible altercation to make sure authorities are aware of his son’s autism-related issues.

Gary Weitzen’s son Christopher has autism. Christopher has anxiety issues, and it is difficult for him to look people in the eye. Because of his anxiety, when he was younger, he would take off running if he was not constantly supervised. “Our friends called our house Fort Weitzen,” said Gary. “I couldn’t let Christopher out of my sight.”

Now Christopher is in his twenties. He likes to take walks at night, though he appears angry and noncommunicative to people who are unaware of his issues.

Gary informed the local police in South Orange, New Jersey about his son’s issues, as well as his parents’ contact information. They understand that John Deere tractors and Thomas the Tank Engine characters may help him calm down, and they are aware of his anxiety triggers.

“It’s a smart move,” said Sgt. Adrian Acevedo, “to tell us his son is blowing off steam, has special needs, and won’t make eye contact or listen to us. If we didn’t have this information, we could mistakenly take him for ...

Office of Homeland Security Circumventing Warrant Requirement by Buying Cellphone Location Data from Marketing Firm

The Office of Homeland Security (“OHS”) has been purchasing “anonymized” cellphone location data for use in Customs and Border Protection (“CBP”) investigations, according to information obtained by the Wall Street Journal.

Under Carpenter v. United States, 138 S. Ct. 2206 (2018), law enforcement agents are required to obtain a search warrant demonstrating probable cause in order to obtain a user’s cellphone-location data. However, records show that OHS has been purchasing bulk data from Venntel Inc., which purchases location history data from companies that collect it, such as those that provide cell, search, and phone-app services to users. It then “merges, categorizes and interprets disparate location data” and provides “global coverage.”

Since this data is anonymized and commercially available, government lawyers have argued that Carpenter doesn’t apply.... “In this case, the government is a commercial purchaser like anybody else. Carpenter is not relevant,” according to Paul Rosenzweig, a former OHS official and now resident senior fellow at the conservative and libertarian think tank, the R Street Institute.

But whether this information is actually “anonymous” and how it is being used calls this conclusion into question.

“The data was used to detect cellphones moving through what was ...

Indiana Supreme Court: Removal of Police’s GPS Tracker on Suspect’s Vehicle Not Probable Cause of Theft, Suppression of Evidence

The Supreme Court of Indiana suppressed all evidence resulting from search warrants obtained on the basis that the sheriff’s department concluded a suspect “stole” the GPS device being used to track him when it failed to transmit its location for 10 days.

Derek Heuring was suspected of dealing methamphetamines by the Warrick County Sheriff’s Department, and in 2018, Officers Young and Busing obtained a warrant to attach a GPS tracker to Heuring’s Ford Expedition. The tracker was a black box, approximately 4 inches by 6 inches, and had no discernable markings. The warrant authorized 30 days of tracking, but the device failed to transmit its location after only seven days.

Officers noticed the vehicle inside Heuring’s father’s barn and believed the barn might be interfering with the signal. Ten days after receiving the last location notification from the device, the officers drove by Heuring’s home and the barn twice and confirmed the vehicle was not in the barn. However, the device was still not transmitting its location, and a technician advised the officers that this could be caused by someone tampering with the device. Officer Young tried to retrieve the device, but it was no longer attached ...

Declassified Court Ruling Details FBI Abuses of Mass Surveillance Data

The government declassified a court order from October 2018 that details the FBI’s misuse of its access to mass surveillance data collected in partnership with large tech and communications companies.

The order detailed what many Americans suspect: Federal agencies misuse mass surveillance in contravention of controls Congress has placed on them. What was not known by most Americans is that, at least as far as the FBI is concerned, these abuses occur hundreds of times a day.

In 1978, Congress passed the Foreign Intelligence Surveillance Act, which created the eponymous FISA Court. This court was designed to allow for non-public legal authorization for federal agencies to intercept the communications of foreign agents and terrorists. Section 702, passed in 2008, expands the scope of interception methods, essentially authorizing the gathering of mass amounts of communications, such as phone metadata and complete emails. And while it was originally used to surveil foreign agents, such intercepts routinely collect the communications of U.S. citizens.

The court order issued by U.S. District Court Judge James E. Boasberg excoriated the FBI for performing “fishing expeditions through Americans’ personal emails and online messages.” The FBI has unfettered access to this database of intercepted communications, ...

Justice Office Awards $145 Million in Forensic Science Grants

The Office of Justice Programs at the Department of Justice recently announced grants of more than $145 million being awarded through various programs it helps to fund. These grants will cover initiatives centered on forensic science.

Notable inclusions from this total are:

• $78 million to state and local jurisdictions to help reduce DNA evidence backlogs.

• $18.7 million for funding into new or better forensic testing methods.

• $1.9 million for improving efficiency of current forensic testing methods.

• $27.3 million will go to state and local governments to fund crime labs, medical examiner’s offices, and coroner’s offices. This will also help clear backlogs of some physical evidence types.

• $5.5 million will go to fund daily operations of the National Missing and Unidentified Persons System (NamUs), which acts as a central repository for missing persons and unidentified decedents.

• $1 million will be used to fund prosecution of “cold” cases of violent crime using DNA testing.

Some readers may not know that the federal government spends tax dollars funding scientific research. But, knowing this, it’s refreshing to see the DOJ allocating at least some money to exonerating the wrongfully convicted.

According to OJP Principal Deputy ...

Carpenter Slowly Remaking Fourth Amendment Case Law

The U.S. Supreme Court issued a landmark decision in 2018, which has been slowly changing the way courts interpret the Fourth Amendment of the U.S. Constitution in our era of mobile technology — and impacting the day-to-day investigative efforts of police.

In Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court ruled that the Fourth Amendment protects data generated by mobile phones known as historical cell-site location information. Previously, police departments could make informal requests of telecom companies to produce this data.

The Court said such information creates a “detailed chronicle of a person’s physical presence compiled every day, every moment over years” and that police must obtain a warrant before accessing this data.

Since the Court issued its decision in Carpenter, it has been cited in over 450 criminal and civil cases across the country.

Lower courts are applying Carpenter in ways that limit the investigative techniques of police because the nation’s top court has signaled this shift in how we should view the expectation of privacy in a world where technology facilitates sharing personal details with third parties (usually large corporations).

In Commonwealth v. Almonor, 120 N.E.3d 1183 (Mass. ...



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