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Articles by Douglas Ankney

Eighth Circuit Announces ‘Categorical Approach’ Applies to SORNA Tier Analysis

by Douglas Ankney

In a case of first impression, the U.S. Court of Appeals for the Eighth Circuit announced that the categorical approach applies to the tier analysis of the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a).

Michael Ryan Coulson was convicted by court martial of “forcible pandering” in violation of Article 120c(b) of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. § 920c(b) (2012). He subsequently failed to register as a sex offender in Iowa and pleaded guilty to violating SORNA. At his sentencing for the SORNA violation, Coulson argued that the categorical approach applied. And because his forcible pandering conviction is defined as forcible “prostitution,” which is further defined as “compelling another person to engage in sexual abuse or sexual contact” (10 U.S.C. § 920c(d)(1)), he argued it is a Tier I offense.

The U.S. District Court for the Northern District of Iowa determined that the categorical approach applied but also found that “the possibility of a prostitution conviction arising from mere sexual contact over the clothing was so unlikely as to be speculative or hypothetical.” The District Court determined that Coulson’s UCMJ conviction is comparable to sexual abuse, 18 U.S.C. § 2242, which is a Tier ...

New York Court of Appeals Declines to Adopt Per Se Rule That Handcuffed Person Is Always ‘In Custody’ for Miranda Purposes, but Holds the Handcuffed Defendant Was ‘In Custody’ and Suppress Incriminating Statements

by Douglas Ankney

The Court of Appeals of New York declined to adopt a per se rule that a handcuffed person is “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). Nevertheless, the Court held that the handcuffed and un-Mirandized defendant was in custody for purposes of Miranda, so incriminating statements that he made must be suppressed.

Acting on a tip from South Carolina police that Ramon Cabrera was transporting firearms into New York without a New York State Carry Permit (“NYS Permit”), Detective Kevin Muirhead and Lieutenant Peter Carretta of the New York City Police Department and Special Agent Adam Schultz of the Bureau of Alcohol, Tobacco, Firearms and Explosives staked out the home of Cabrera’s mother. When Cabrera arrived at about 10:00 p.m., the officers pulled in behind his vehicle.

As Cabrera exited his vehicle, the officers approached him and identified themselves as police officers. In response to Muirhead’s questions, Cabrera identified himself and explained that the home belonged to his mother. Cabrera was handcuffed at that point. When asked for identification, Cabrera directed the officers to his wallet in his car’s console. When removing Cabrera’s driver’s license, the officers observed a Florida Concealed Carry ...

Fifth Circuit: Admission of DHS Investigation Form G-166F at Trial Where Preparer of Form Did Not Testify Violates Confrontation Clause and Rule Against Hearsay

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit held that the admission of Department of Homeland Security (“DHS”) Investigation Form G-166F (“G-166F”) at Nicole Elizabeth Foreman’s trial where the preparer of the G-166F did not testify violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and violated Federal Rules of Evidence (“FRE”) 801, 802, 803, and 805.

A Culberson County Sheriff’s Deputy initiated a traffic stop of a white Pontiac SUV. The driver of the SUV was Ira Cannon. Foreman was a passenger in the front seat. Nine men who appeared to be of Latin American descent were squeezed into the back. The deputy contacted Customs and Border Patrol (“CBP”). An agent from CBP interviewed the nine men and reported on the G-166F that they were all Mexican nationals. CBP also determined that Cannon was the leader of a human-smuggling operation and that Foreman was his assistant.

CBP turned the case over to DHS, which ultimately charged Foreman with Count 1: transportation of illegal aliens for financial gain (in violation of 8 U.S.C. § 1324(a)(1)(A)(ii)) and Count 2: conspiracy to transport aliens (in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I)).

Over Foreman’s objections, the trial court ...

Does the Fourth Amendment Protect Cellphones at the Border?

by Douglas Ankney

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Those hallowed words enshrined in the Fourth Amendment to the U.S. Constitution were, and are, intended to protect citizens from abusive, harassing, and over-intrusive policing. The Fourth Amendment does not protect citizens from all searches, but it protects against unreasonable searches. Carroll v. United States, 267 U.S. 132 (1925). And all searches conducted without a warrant are presumptively unreasonable—unless the government can justify the warrantless search under one of the carefully crafted exceptions to the warrant requirement. Riley v. California, 573 U.S. 373 (2014).

But in the context of forensic searches of cellphones, i.e., searches of the contents of cellphones, at America’s borders, are those hallowed words and intended protections merely impotent splatters of ink on parchment? Cellphones are unique in many respects. With nearly every person in the U.S. owning and carrying one, the Supreme Court of the United States (“SCOTUS”) has ...

New York Governor Signs Law Sealing Millions of Criminal Records From Public View

by Douglas Ankney

In late 2023, New York Governor Kathy Hochul signed the Clean Slate Act into law, permitting millions of criminal convictions to be sealed. “With the signing of this law, it adds to our momentum to get people back to work, give them those opportunities,” said Hochul.

Under the Clean Slate Act’s provisions, criminal convictions in the state of New York will automatically be sealed from public view once the convicted person completes a waiting period after incarceration (set at three years for misdemeanors; eight years for felonies). Sealing of the records means they are hidden from potential employers and housing providers.

However, sex offenses and Class A felonies are excluded from the Clean Slate Act. Furthermore, some state, local, and federal agencies will be permitted to view the sealed records in limited circumstances. And “[s]chools, police agencies, and facilities dealing with vulnerable groups will also have access to sealed convictions for employment purposes.” The Clean Slate Act becomes effective in November 2024 with the New York State Office of Court Administration having up to three years to seal all eligible records.   



‘Blatant Miscarriage of Justice’: Oklahoma Man Exonerated of Wrongful Conviction After 35 Years Despite Former Prosecutor’s Attempt to Perpetuate Injustice

by Douglas Ankney

Perry Lott was exonerated in Ada, Oklahoma, of a 1987 rape and burglary conviction after 35 years—30 of which Lott spent in prison—in spite of former District Attorney Paul Smith’s attempts to perpetuate such a gross miscarriage of justice.

In November 1987, a white woman was raped inside her home and her assailant took $120 from her purse. Police took the victim to the Ada Hospital where a rape kit was collected. The victim told police her assailant was a clean-shaven Black man with gold teeth. Later, while filming a Crime Stoppers reenactment video, a detective spotted Lott in his car parked across the street. Upon questioning, Lott told the detective he had been with his girlfriend during the time of the crime, and Lott agreed to accompany the detective to the Ada police station for a lineup. But none of the other men in the lineup had gold teeth. Instead, the other men placed gold foil over their teeth. This meant Lott was the only one who could open his mouth and show gold teeth. The victim identified Lott as her assailant after about 30 minutes. Lott was arrested and eventually convicted of rape and burglary ...

Studying Ant Bites on Cadavers May Advance Criminal Investigations

by Douglas Ankney

Forensic entomology generally focuses on the activity of blowflies and beetles in estimating the time of death. But Professor Paola Magni of Australia’s Murdoch University is a leading forensic entomologist urging forensic professionals to consider the activity of other insects, including ants.

Magni is the lead author ...

Illinois Supreme Court Announces § 9-1.2(d) Sets Range of Sentences for Intentional Homicide of Unborn Child but Does Not Convert Offense Into Murder for Life-Sentence Enhancement

by Douglas Ankney

The Supreme Court of Illinois held that 720 ILCS 5/9-1.2(d) (West 2006) (“section 9-1.2(d)”) sets the range of sentences available for intentional homicide of an unborn child but does not convert that offense into murder for sentence enhancement purposes and that 730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 2006) (“section ...

Seventh Circuit Orders District Court to Hold Evidentiary Hearing Where Record Insufficient to Permit Review of State Prisoner’s Section 2254 Habeas Petition Alleging Ineffective Assistance of Counsel

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit made the rare decision to order an evidentiary hearing be held in the U.S. District Court for the Southern District of Indiana upon finding that the record was insufficient to permit review of Ryan T. McMullen’s 28 U.S.C. ...

Audit Finds LAPD’s Frivolous Use of Helicopters Flunks Cost/Benefit Analysis

by Douglas Ankney

An audit released by Los Angeles (“LA”) City Controller Kenneth Mejia revealed that the Los Angeles Police Department’s (“LAPD”) frivolous use of helicopters from the Air Support Division (“ASD”) cost taxpayers far more than any benefits received. The ASD employs more than 90 people and operates over ...



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