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Articles by Anthony Accurso

Third Circuit: Pennsylvania Second-Degree Aggravated Assault of a Protected Individual Not a ‘Violent Felony’ Under ACCA, Court Acknowledges ‘Bizarre Result’

by Anthony W. Accurso

The U.S. Court of Appeals for the Third Circuit held that second-degree aggravated assault of a protected individual in violation of 18 Pa. Cons. Stat. § 2702(a)(3) is not a “violent felony,” for purposes of the Armed Career Criminal Act (“ACCA”), reversing a defendant’s sentence enhanced thereunder.

In 2008, Samuel Jenkins pleaded guilty to a violation of 18 U.S.C. §§ 922(g)(1) and 924(3) for possessing a firearm as a convicted felon. He also had two prior drug convictions and a conviction in Pennsylvania for second-degree aggravated assault of a protected individual under § 2702(a)(3). His sentence was enhanced under the ACCA and sentenced to 15 years in prison with five years of supervision.

In 2015, the U.S. Supreme Court issued its ruling in Johnson v. United States, 576 U.S. 591 (2015), declaring the residual clause of the ACCA unconstitutional, which was made retroactive in Welch v. United States, 578 U.S. 120 (2016).

Jenkins submitted a habeas motion under 28 U.S.C. § 2255, claiming that, under Johnson, § 2702(a)(3) is not a “violent felony” upon which an ACCA enhancement can stand because the statute of conviction can be violated without the use, attempted use, or ...

Roadside Drug Tests: Failed Technology From the Failed War on Drugs

by Anthony Accurso

Field test kits are touted as an easy way for law enforcement to determine if an unknown substance is in fact a narcotic. Millions are used each year by police during traffic stops, so they are commonly referred to as “roadside drug tests.” But revelations about the accuracy (or lack thereof) of these tests have called into question their usefulness for law enforcement purposes, causing a push to reform their role in prosecutions and elsewhere.

On the last day of 2015, Dasha Fincher was arrested in Monroe County, Georgia, during a traffic stop. Fincher was a passenger in the vehicle, and officers found an unknown substance attributed to her during a search. Deputies used a roadside drug test kit which indicated the substance contained methamphetamines. She would spend the next three months in jail on a $1 million bond because of the suspicion that she was a drug trafficker, largely based on the roadside test.

A subsequent lab test would reveal the substance was actually cotton candy. Though there were several reasons why the system failed Fincher, much of her trouble stemmed from the field test kit which misidentified a harmless substance as a narcotic.

A Known ...

California Supreme Court Announces Warrantless Search Parole Condition Does Not Dissipate Taint of Unlawful Detention and Subsequent Search, Suppresses Evidence

by Anthony W Accurso

In resolving a split among the state Courts of Appeal, the Supreme Court of California held that, unlike an outstanding arrest warrant, a condition of a suspect’s parole allowing for warrantless and suspicionless searches does not dissipate the taint of an unlawful detention and that any evidence obtained as a result of the subsequent search must be suppressed.

Officer Matthew Croucher of the San Jose Police Department responded to a report of a possible vehicle burglary in a business parking lot on an evening in January 2017. A security guard on the premises “told him she had seen two suspicious individuals on bikes shining flashlights into parked cars.”

After finding nothing suspicious in the commercial lot, Croucher then drove through an adjacent lot. He noticed one of the vehicles was occupied by Duvanh Anthony McWilliams, who “did not appear to be sleeping, just hanging out.”

Croucher called for backup, then approached the vehicle, and instructed McWilliams to exit, ostensibly for “safety reasons.” A records check showed McWilliams was “on active and searchable [California Department of Corrections] parole.” Croucher then conducted a search of McWilliams and the vehicle, “from which he seized a firearm, drugs, and drug ...

The Inevitability of Central Bank Digital Currencies and Their Threat to Human Rights

by Anthony Accurso

Bitcoin is rapidly changing the way we function as individuals in a global and interconnected economy. Even though any individual person may not own or use it directly, it is reshaping economics across the planet. It is, in many ways, the best solution to a unique problem in banking enabled by the digital age.

The rise of Bitcoin and other cryptocurrencies has shaken many governments out of their complacent view with regards to the prevailing economic order, and they are reacting in varying ways to the threat. Many countries and economic zones are now considering creating their own digital currencies to compete, both with Bitcoin and each other.

The choices made by government producers of Central Bank Digital Currencies (“CBDCs”), in the forms these new monies will take, have the potential to irrevocably disrupt the relationship between governments and their citizens. To understand the implications of this seismic shift in technology and policy, we have to understand what purposes money serves in society and the conditions that led to the proliferation of cryptocurrencies.

Money as a Tool

Tools are things that people use to solve problems. Money is a tool, and understanding money requires understanding the problems ...

Cops Aren’t Just Murdering People With Impunity – They Also Conduct Bogus Traffic Stops

by Anthony W. Accurso

Police are tasked with upholding the law, but current case law has created a system where officers are actually incentivized to break the law by making bogus traffic stops.

The Fourth Amendment to the U.S. Constitution provides that citizens will be free from unreasonable searches and seizures. The Supreme Court has found it reasonable for a police officer to initiate a traffic stop for even the most minor of traffic infractions and has provided police with the presumption of truthfulness such that their testimony can only be undermined by clear evidence that contradicts their testimony (such as video footage).

Though the Court has attempted to place limitations on police authority by requiring probable cause or consent for searches and limiting traffic stops to their essential purpose, too many officers abuse this authority too often.

Perversely, there are social and financial incentives for doing so. When an officer concocts a pretext for initiating a traffic stop that results in the seizure of narcotics, weapons, or a wanted person, they are rewarded for protecting the community. Further, law enforcement agencies conduct large-scale operations where officers are encouraged to identify as many traffic violations as possible in a short ...

Ohio Supreme Court: Good-Faith Exception to Exclusionary Rule Inapplicable to Warrant Based on Affidavit Stating Cellphones Found at Scene of Traffic Crash ‘May’ Contain Evidence

by Anthony W. Accurso

The Supreme Court of Ohio held that the Court of Appeals erred in applying the good faith exception to the exclusionary rule where the search warrant for cellphones found at the scene of a traffic accident stated that evidence of a crime “may” be found on the defendant’s cellphone.

A vehicle being driven by Alan Schubert crossed the center line, striking another vehicle. Only Schubert survived, and while he was unconscious and receiving care at a nearby hospital, investigators determined that his blood tested positive for amphetamine, methamphetamine, and fentanyl.

Shortly thereafter, police sought a search warrant to inspect three cellphones they recovered at the scene of the accident. The affidavit accompanying the warrant stated that the phones “may” contain additional evidence in connection with the investigation, so police wanted to obtain “personal identifiers” and metadata for “incoming and outgoing calls, text messages and/or internet browsing information,” including any of this information that could be obtained from “cloud storage,” on the premise that this information “may contain evidence … to the crime” of aggravated vehicular homicide. (emphasis supplied)

While searching Schubert’s phone, police discovered pictures of nude juveniles sufficient to support multiple counts of pandering ...

California Court Rejects Geofence Warrant

by Anthony W Accurso

A California trial court held that ageofence warrant obtained by the San Francisco PD violated the Fourth Amendment and the recently enacted California Electronic Communications Privacy Act (“CalECPA”), requiring future warrants to be more narrowly tailored.

People v. Dawes, Court No. 19002022, SW# 42739, involved a 2018 burglary for which the police had difficulty identifying a suspect. Police obtained a warrant to obtain location data from Google’s Location History database, which enabled police to identify Laquan Dawes.

For those unfamiliar with the details of geofence warrants, these usually involve a three-step process. First, Google returns advertising IDs and location history for all the Google-tracked devices in an area during a specific window of time. In the second step, police narrow the list of devices but may expand the geographic area and time window to track the movements of the devices of interest. The third step involves narrowing the list of devices further, and Google then provides detailed user info on the remaining devices.

In this era of mass incarceration and the surveillance state, most courts simply approve tech-oriented warrants without understanding what they are authorizing police to do. However, a growing number of judges are ...

Wisconsin Supreme Court: Riding Same Make of Motorcycle as Reported by Police Speeding and Driving Erratically Does Not Constitute Reasonable Suspicion to Initiate Traffic Stop

by Anthony W Accurso

THe Supreme Court of Wisconsin held that the information upon which an officer relied to conduct an investigatory stop was insufficiently particularized to constitute reasonable suspicion because it consisted only a vehicle’s make – a Harley-Davidson motorcycle.

On a Saturday night in April, a sheriff’s deputy ...

California Court Rejects Geofence Warrant

by Anthony W Accurso

A California trial court held that a geofencewarrant obtained by the San Francisco PD violated the Fourth Amendment and the recently enacted California Electronic Communications Privacy Act (“CalECPA”), requiring future warrants to be more narrowly tailored.

People v. Dawes, Court No. 19002022, SW# 42739, involved ...

Wyoming Supreme Court Rules Officer’s Conduct Prior to Traffic Stop for Traffic Violation Rendered Stop Unreasonable

by Anthony W. Accurso

The Supreme Court of Wyoming held that a state trooper’s actions prior to observing a traffic violation rendered the traffic stop unreasonable under both the Wyoming and U.S. Constitutions.

On August 28th, 2018, Wyoming Highway Patrol Trooper Shane Carraher observed a black Nissan Rogue traveling eastbound ...

 

 

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