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Articles by Anthony Accurso

New Mexico Supreme Court Announces Trial Courts Retain Common Law Jurisdictional Authority to Correct Illegal Sentences, Allows Defendant to Withdraw Plea After Sentence Correction Involving Additional Parole Time

by Anthony W. Accurso

The Supreme Court of New Mexico allowed a defendant to withdraw his plea deal after the district court corrected his sentence to include a lengthier term of parole, because he could not “knowingly and voluntarily” take the deal without being aware of the mandatory parole ...

Digital Voiceprinting Is Not Ready for Court

by Anthony W. Accurso

New techniques using artificial intelligence to analyze voices fall short of meeting the standard for court admissibility, but that hasn’t stopped police from coercing plea deals out of defendants while claiming the “evidence” against them is sound.

For over a 100 years, the ability to identify ...

Oregon Supreme Court Clarifies Mansor Ruling for Search Warrants for Digital Data and Announces Framework for Suppression When Warrant Contains Both Constitutional and Unconstitutional Search Categories

by Anthony W. Accurso

The Supreme Court of Oregon clarified the procedure, flowing from its previous doctrine on cellphone searches, for reviewing search conditions for reasonableness and announced the framework for suppression where a warrant contains both constitutional and unconstitutional search categories.

Detective Opitz of the Beaverton Police Department obtained ...

Sixth Circuit Suppresses Evidence Obtained as a Result of Warrant That Lacked Probable Cause of Criminal Activity in Arson Investigation

by Anthony W Accurso

The U.S. Court of Appeals for the Sixth Circuit required suppression of evidence based upon a warrant for evidence related to a structure fire where the government failed to establish probable cause to believe the fire was caused by arson or otherwise the result of criminal activity.

The Lexington, Kentucky, Fire Department sent Chris O’Bryan to investigate a structure fire at 428 Douglas Avenue. The fire consumed a portion of an unattached shed but did not spread to the vacant house on the property.

O’Bryan interviewed nearby residents and the non-resident owner who said “the word out there is that somebody pulled up in a vehicle and was … seen removing things out of the shed just prior to the fire.”

He also noticed the residence at 430 Douglas Avenue had security cameras that may have captured video of the shed at the time of the fire. O’Bryan made contact with Quincino Waide, the owner of 430 and occupant of Apt. 3, who allegedly smelled of “what [O’Bryan] thought was marijuana.” When asked about the DVR for the security cameras, Waide declined to share them.

Despite there being no reliable evidence to establish probable cause to ...

Arizona Blowfly Database Develops Empirical Support for Time of Death Estimation

by Anthony W. Accurso

A research project in Arizona seeks to develop support for a method of determining time of death by cataloging information about blowfly species.

The gases emitted by a corpse can attract nearby blowflies to colonize and help break down a body. While blowflies will get to a body within minutes, the life cycle of the flies will vary depending on the specific species, making the process of determining the time of death imprecise.

“Species identification is the most critical step,” said Jonathan Parrott, an assistant professor of forensic science at Arizona State University. “If you identify the species wrong, you’re going to be applying incorrect data to your estimated time of death.”

According to Forensic Magazine, “a blowfly species found on an abandoned body during summer in Chandler, Arizona, may have a different life cycle than a blowfly in the winter just 30 miles north.”

Parrott’s project has been using DNA to identify distinct blowfly species, then subjecting each to specific temperature and humidity environments to obtain information about how these affect the timing of a fly’s life cycle.

“What makes our research unique is that there has not been any developmental or DNA data ...

New York Court of Appeals: Call Intercepted on Wiretap Not Exempt From Statutory Notice Requirements Simply Because Same Call Captured on Separate, Consensual Recording by Jail

by Anthony W. Accurso

The Court of Appeals of New York ordered the suppression of a jail recording where it was derived from a wiretap and the People failed to provide the required statutory notice to the defendant under CPL 700.70.

Syracuse police were investigating a fatal hit-and-run automobile accident that occurred in October 2015. Around the same time in a separate investigation, the New York Attorney General’s Office obtained authorization for a wiretap on the phone of A.C.

A.J, a prisoner at the Onondaga County Justice Center (“OCJC”) called A.C., who later handed the phone to Michael Myers, who then made self-incriminating statements regarding the hit-and-run. An officer listening to the wiretap recording recognized Myers’ voice and obtained a copy of the OCJC phone recording.

Myers was indicted for the hit-and-run based on the jail phone recording. He filed a suppression motion for the recording but was denied under a long-standing policy that prisoners have no reasonable expectation of privacy in jail phone calls. Meyers timely appealed.

The Court noted that CPL 700 governs wiretaps in the state of New York and that the Court of Appeals “require[s] strict – indeed, scrupulous – compliance with the provisions of the ...

Fourth Circuit Denies Defendant Faced ‘Classic Penalty Situation’ During Polygraph Questioning While on Supervised Release

by Anthony W. Accurso

The U.S. Court of Appeals for the Fourth Circuit upheld the denial of a defendant’s suppression motion where he failed to invoke his Fifth Amendment protections while on post-release supervision and instead provided statements which led to a new charge.

Eugene Reid Linville was on supervised release for a child pornography conviction. He had conditions of supervision which included: (1) that he not possess adult or child pornography; (2) that he is subject to warrantless searches of his home upon reasonable suspicion of unlawful conduct; (3) that he truthfully answer questions from his probation officer; and (4) that he participate in a sex offender treatment program, which includes periodic polygraph testing.

After a year on supervision, Linville submitted to a polygraph exam, during which he admitted that he possessed Playboy magazines. During a subsequent interview with his probation officer, James Long, Linville was asked – without being informed of his Miranda rights – whether he possessed adult or child pornography. He admitted he possessed both and, during a trip to his home, surrendered “8 to 10 cardboard boxes containing numerous magazines, photos and video tapes, as well as notebook-type binders containing compact discs and digital video discs.” ...

Seventh Circuit: Whether Right to Counsel ‘Attaches’ Is Not Dependent on Defendant’s Appearance at Probable Cause Hearing

by Anthony W Accurso

The U.S. Court of Appeals for the Seventh Circuit ruled that Wisconsin courts denied a defendant his Sixth Amendment right to counsel by failing to appoint counsel until after he had been ordered detained by a magistrate and required to participate in an in-person lineup – that is, after his right to counsel had “attached.”

Nelson Garcia, Jr. was picked up for a parole violation on January 2, 2012, by Milwaukee Police. They received several anonymous tips identifying Garcia as the person who had robbed a Milwaukee bank the previous month.

Two days after his arrest, Detective Ralph Spano appeared in court to submit a form CR-215 to a court commissioner in Milwaukee County. This form requested the continued detention of Garcia on the basis of police having probable cause to believe he robbed the bank in question, and it included Spano’s description of the bank’s surveillance footage and the subsequent hotline tips. The court commissioner approved the request, setting bail at $50,000. Garcia was not present at this hearing, nor was there any record that he received the completed form.

A few hours after the form was processed, police conducted an in-person lineup with Garcia ...

Sixth Circuit Holds Bump Stocks Not Regulated Under Machinegun Statute

by Anthony W. Accurso

The U.S. Court of Appeals for the Sixth Circuit weighed in on the ongoing Circuit split of whether a “bump stock” – placement of which on a semiautomatic rifle enables it to function essentially like a machinegun the possession of which is a criminal offense – is a machinegun “part” under the National Firearms Act of 1934, concluding that the rule of lenity requires the Court to construe the ambiguous statute in question in favor of the defendant.

Section 922(o)(1) regulates “machine­gun[s], and any combination of parts from which a machine gun can be assembled” and defines the term “machinegun” via incorporating by reference the definition contained in 26 U.S.C. § 5845(b), which defines it as any “weapon” that can shoot “automatically more than one shot, without manual reloading, by a single function of the trigger” as well as any “part” that’s “designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun….”

Up until December 26, 2018, the ATF’s position was that bump stocks are not a machine gun part. However, after the 2018 mass shooting in Las Vegas, Nevada, in which a gunman ...

New Jersey Supreme Court: Third-Party’s Apparent Authority to Consent to Search Premises Does Not Extend to Defendant’s Personal Property Located on Premises

by Anthony W Accurso

The Supreme Court of New Jersey held that a third party, with property in a storage trailer shared with the defendant, had apparent authority to authorize a search of the trailer but not a search of a bag belonging to the defendant in which the third party has no property.

N.D. and her adult daughter contacted Borough of Highlands police on the morning of July 27, 2019. N.D. showed text messages to officers supporting the claim that her boyfriend of four years, Anthony Miranda, had threatened her and her children. She then showed them fresh bruises claiming Miranda had assaulted her. She also stated that Miranda possessed two handguns and kept them in a black bag in a residential trailer they shared.

Officers engaged the Domestic Violence Response Team and contacted a local magistrate. The magistrate authorized a restraining order, arrest warrant, and a search warrant for the trailer in which Miranda and N.D. lived.

Just before 11:00 a.m., officers arrived at the trailer and arrested Miranda, whereupon he was transported to the police station for processing into the county jail. Miranda remained in police custody during the events that transpired afterwards at the residential trailer ...

 

 

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