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Articles by Anthony Accurso

Federal Judges Beginning to Reject Geofence Warrants

Such warrants are sometimes also called “reverse warrants” because they are like a normal warrant but in reverse. Normally, law enforcement officers (“LEOs”) have a suspect or specific details about a suspect, and they have some evidence that person committed a crime. They present this to a magistrate judge who then authorizes them to look for more conclusive evidence in very specific places.

In contrast, geofence warrants work backward from where a crime is committed, and LEOs then obtain an obscene amount of information on thousands of people in the hope they can sort potential suspects from that data. They then investigate those leads and apply for a normal warrant when they have amassed enough details to narrow it down to the person(s) they believe committed the crime.

Magistrate Judge David M. Weisman was called upon to authorize such a warrant after some pharmaceuticals were stolen. The government applied to obtain data gathered by ...

Maine Supreme Court: SORNA Ruled Ex Post Facto Punishment for Defendant

by Anthony Accurso

In a decision issued August. 13, 2020, the Maine Supreme Judicial Court held that the Sex Offender Registration and Notification Act of 1999 (“SORNA of 1999”) was unconstitutionally applied to a defendant in violation of the Maine and U.S. Constitutions’ ex post facto provisions.

Craig A. Porter moved his camper to a friend’s property in Dresden, Maine, in May 2018 and did not notify the local sheriff’s office of the change. Proctor had prior sex offenses and was thus indicted in November 2018 for failing to register in violation of 34-A M.R.S. § 11222 (1-B) (2020). Proctor was convicted and sentenced to 90 days’ imprisonment. The execution of the sentence was stayed pending resolution of his appeal as to whether SORNA of 1999 was unconstitutional as applied to him.

In October 1990, Proctor was convicted of four counts of unlawful sexual contact in violation of 17-A M.R.S.A. § 255 (Supp. 1990). He was sentenced to five years of imprisonment, with all but one year suspended and four years of probation. However, he was not then required to register as a sex offender because Maine did not pass its first registration law until 1991 (“SORNA of 1991”).

In ...

Ninth Circuit: California Conviction Under § 261.5(c) Not Predicate Offense For § 2252(b)(1) Enhancement

by Anthony Accurso

The U.S. Court of Appeals for the Ninth Circuit held that a defendant’s conviction under California Penal Code § 261.5(c) is not a predicate offense triggering a higher mandatory sentencing range under 18 U.S.C. § 2252(b)(1) because the state statute of conviction is not a categorical match to the general federal definition of sexual abuse of a minor.

Chad Carl Jaycox pleaded guilty in 2018 to receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). Upon issuance of the PSR, the court decided that his prior conviction for “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” under § 261.5(c) qualified him for an enhanced sentencing range of 15 to 40 years, up from 5 to 20 without a qualifying prior.

Jaycox objected to the enhancement, but the district court upheld the enhancement, citing United States v. Sullivan, 797 F.3d 623 (9th Cir. 2015) (holding that a conviction under Section 261.5(d) triggered the enhancement). Though his Guidelines range was 262 to 327 months, the court sentenced him to 240. He timely filed a direct appeal.

The Ninth Circuit had to determine whether § 261.5(c) is sufficiently different ...

Washington Supreme Court Announces Prohibition Against Blanket Shackling Policies at Pretrial Proceedings

by Anthony Accurso

The Supreme Court of Washington issued a ruling that both clarified the standards governing the use of shackles during all court appearances and criticized the adoption of blanket policies for shackling without an individualized inquiry.

John W. Jackson, Sr. was accused of “assault in the second degree, domestic violence” after allegedly strangling his wife during an argument in early 2017. During Jackson’s pre-trial hearings, he was required to be shackled and in a jail uniform. During the trial, he was allowed to wear street clothes but was required to wear a leg “brace” that prevented him from walking normally or potentially escaping.

Jackson’s attorney objected to this treatment and filed a motion requesting the court conduct an individualized hearing on the need to restrain Jackson during appearances. On August 4, 2017, the Clallam County Superior Court issued an opinion on Jackson’s motion, as well as similar motions by other defendants then pending, which adopted the policies of the Clallam County Sheriff’s Office on the restraint and shackling of in-custody defendants until a viable alternative, such as videoconferencing, was available.

During his trial, Jackson raised concerns that the jury could see his leg brace under his clothing, and ...

Proliferation of Police Drones Feeds Big Brother’s Need for Big Data

 

by Anthony Accurso

A recent article by Nick Mottern on Truthout.org highlights the growing trend of big data collection made possible by tech in policing, specifically the proliferation of drones with cameras.

Julie Weiner was at a Black Lives Matter protest in Yonkers, New York, in early June 2020 when she noticed a drone in the sky, seemingly monitoring the protest. After some digging, she learned the drone was operated by the Yonkers police.

Weiner is concerned that using drones, possibly in connection with other tech, such as facial recognition and predictive policing, “may be a violation of our rights to freely assemble, and to be free from unwarranted searches and seizures.” 

Weiner is right to be concerned. While Yonkers Police Commissioner John Mueller has not put in place any formal policy for managing what is captured by drones or with whom that data is shared, Mueller is also considering purchasing police body cameras and had been favoring those made by Axon Enterprise, Inc. (formerly known as TASER International).

Axon, which is purported to control 80 percent of the police bodycam market, sells other law enforcement services as well. Axon is in partnership with DJI – the manufacturer ...

Technology and Police Reform

by Anthony Accurso

Technology innovation seems to impact every aspect of our lives in the modern era, but what roles should technology play in policing? As the national conversation has turned to police reform, technology’s roles are being questioned anew.

Three technology trends are behind many of our most recent innovations: cheap data storage and databases, artificial intelligence, and near ubiquitous video and audio recording devices. This is equally true in tech recently adopted for use by law policing agencies. Cheap, high-definition cameras are mounted on Tasers, vehicle dashboards, drones, buildings, and officers’ bodies. That video is stored, seemingly indefinitely, in cloud databases. The video is combed through by AI algorithms to create new data points used by other AIs to make, or aid in making, decisions in a policing context.

But, like so many other areas of our lives affected by innovation, we never stopped to ask what purposes these tools serve, and whether those purposes are at odds with our other, closely held values like privacy or free speech.

Nine years ago, Santa Cruz, California, was one of the first police departments to adopt software that implemented “predictive policing.” The thought was that they could feed enough data ...

IRS May Have Obtained Phone Location Data Without Warrant

by Anthony Accurso

The Treasury Inspector General for Tax Administration (“TIGTA”) is expected to investigate a claim that the IRS Criminal Investigation (“CI”) unit attempted to obtain location data on suspects without first obtaining a warrant.

The Supreme Court ruled in Carpenter v. United States (2019) that location data drawn ...

Your Neighborhood Does Not Need an Automated License Plate Reader

by Anthony W. Accurso

Companies are targeting Homeowners Associations and Neighborhood Associations as potential customers for Automated License Plate Readers (ALPRs), promising the devices will keep neighborhoods safe. However, there is no evidence these devices improve safety, though they have been proven to compromise your privacy.

ALPRs, such as those ...

Fourth Circuit Announces Discretionary Conditions of Supervision Must Be Orally Pronounced at Sentencing

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 at sentencing.

Cortez Lamar Rogers was one month into his term of post-release supervision in 2017 when he was busted during a controlled drug buy. He led officers on a dramatic high-speed chase, which ended after officers deployed spike strips to stop his vehicle.

In addition to his state charges, which included fleeing and eluding arrest, Rogers had his supervision revoked by the district court. He admitted to violating his supervision by committing a new crime, and he and the Government agreed on 24 months’ imprisonment at his sentencing for the violation.

The court then stated it would impose an “additional term of supervision of 12 months.” There was a brief discussion about whether Rogers needed drug or mental health treatment – both parties agreed he did not – and then the court ordered the proposed sentence imposed.

At no time during this hearing did the court mention any conditions ...

Idaho Supreme Court Announces False Rape Allegations May Be Admitted Regardless of When Made

Steven Michael Chambers was charged with raping N.S. in June 2016. N.S. claimed she met Chambers at his house, that he punched her in the abdomen, and then forced himself on top of her while raping her.

During preliminary hearings, Chambers sought to admit evidence per I.R.E. 412 that, six months after N.S. alleged he raped her, N.S. filed an identical claim against another man, and the detective in that case declined to arrest or charge the suspect. Indeed, the suspect claimed N.S. had visited him and had consensual sex, and the suspect was cooperative to the point of passing a polygraph test. Further, evidence showed N.S. had deleted all text messages, including sexting and provocative photos, from her phone after contacting 911 in both cases.

The trial court interpreted the language of I.R.E. 412 as not permitting the evidence because the other allegation occurred after N.S. accused Chambers and was therefore not “made at an earlier time.” The ...

 

 

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