by Anthony W. Accurso

The Fourth Amendment to the U.S. Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and requires that warrants be issued only “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

This language was crafted in response to general warrants issued in pre-revolutionary American colonies which allowed officers to conduct a “general, exploratory rummaging” through the homes and businesses of any person remotely suspected of criminal activity. Coolidge v. New Hampshire, 403 U.S. 443 (1971). While such warrants were not strictly legal under English law, the structures of judicial oversight were often rigged against the colonists.

Sometimes known as “writs of assistance,” these warrants were “widely used by British officials to search colonists’ imported goods to ensure compliance with the tax code.” In an 1817 letter, Founding Father and future President John Adams referred to a speech (which condemned such abuses) given by James Otis, a young lawyer from Boston, as “the birth of America’s struggle for independence.”

The wording of the Fourth Amendment with respect to ...

by Douglas Ankney

The California Court of Appeal, Third Appellate District, reversed Dwayne Lamont Burgess’ felony murder conviction because the evidence was insufficient to support the underlying predicate felony of attempted robbery.

In December 1990, Burgess was a participant in a crime that ended in the death of a drug dealer. The plan was to cheat the victim by giving him some real money wrapped around a wad of fake bills in exchange for marijuana. But after Burgess handed the fake money to the victim, the victim called the deal off. Burgess fired his gun into the air to scare him and then ran off. Burgess heard another gunshot when his cousin shot and killed the victim.

Burgess was convicted by a jury of attempted robbery and first-degree felony murder. The jury also found he personally used a firearm in the commission of each offense. He was sentenced to prison for a term of 29 years to life on the murder and its enhancement while the sentence for the attempted robbery and its enhancement was stayed.

Burgess subsequently petitioned for resentencing under California Penal Code § 1172.6 and was granted a hearing under subdivision (d)(3). (Note: All statutory references are ...

by Douglas Ankney

Gersh Kuntzman, editor of Streetsblog, spent the first quarter of 2023 documenting New York Police Department (“NYPD”) officers who defaced their license plates, making the plates unreadable to the city’s speed, red-light, and bus-lane violation cameras. The results of the investigations into his complaints reveal none of the offending officers were disciplined.

Sergeant Ronald Paulin earned more than $228,000 in 2022. Kuntzman photographed Paulin’s new Tesla that had no front license plate or registration. But the investigator who interviewed Paulin stated Paulin no longer owned the vehicle. However, the investigator indicated that the vehicle Paulin no longer owned was a 2019 Nissan Altima. There was no follow-up investigation concerning the new Tesla displaying Paulin’s license plate in the rear but no front plate.

Detective Christopher McGuinness – who was paid $177,773 last year – had a license plate with the “D” and “V” scratched off, rendering the plate illegible. Lt. Juan Solla reported that he informed McGuinness that the plate had some peeled paint, and should it deteriorate further, it would need to be replaced. 

Lieutenant Craig Baco, who was paid $179,000 in 2022, scraped off the last four digits of his front plate. According to the ...

by Douglas Ankney

The New York Court of Appeals held that until the jury returns to the courtroom and publicly announces and confirms the verdict, the defendant is still presumed innocent, so the constitutional prohibition on restraining a defendant without explanation remains in force.

Oscar Sanders was tried by jury on several charges, including attempted assault in the first degree and assault in the second degree. After the jury advised the trial court it had reached a verdict but had not yet returned to the courtroom, defense counsel observed the defendant in handcuffs and made the following objection:

“I understand that it’s this court’s policy, I just learned this minutes ago, to keep my client in handcuffs while the jury comes out and renders their verdict. But it’s my understanding that the law allows for the defense and Prosecution to poll the jury with the idea in mind that perhaps unanimity of the jury can be questioned when the foreperson announces a unanimous jury. And with that in mind, being that the defendant is in handcuffs while they announce that verdict, especially in the case of it’s a verdict of guilty, lends pressure to anyone who might dissent during that ...

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit vacated two 18 U.S.C. § 924 convictions that were predicated on attempted Hobbs Act robbery because attempted Hobbs Act robbery is not categorically a crime of violence.

In 2018, Dwaine Collymore pleaded guilty to four counts, viz., conspiracy to commit Hobbs Act robbery (Count 1); attempted Hobbs Act robbery (Count 2); using, brandishing, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (ii), (iii), and (2) (Count 3); and murdering a person with a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(j)(1) and (2) (Count 4). The predicate “crime of violence” sustaining the convictions of Counts 3 and 4 was the attempted Hobbs Act robbery of Count 2. The U.S. District Court for the Southern District of New York sentenced Collymore to 525 months in prison, and he timely appealed.

The Second Circuit affirmed, but in 2022, the U.S. Supreme Court vacated the judgment and remanded to the Second Circuit for further consideration in light of United States v. Taylor, 142 S. Ct. 2015 (2022).

Collymore argued that ...

by Douglas Ankney

The Supreme Court of California held that after amendments to the Three Strikes law, trial courts retain the concurrent sentencing discretion that was first enunciated in People v. Hendrix, 941 P.2d 64 (Cal. 1997), when sentencing on qualifying offenses committed on the same occasion or arising from the same set of facts.

Level Omega Henderson hit Daniel Tillett in the head with the butt of his gun and punched him with his other hand. Henderson then pointed his gun at Tillett’s girlfriend and at William Aguilar. Police were summoned, and officers saw Henderson strike Tillett several times.

Henderson was charged with assault by means of force likely to produce great bodily injury, possession of a firearm by a felon, and two counts of assaulting Tillett and Aguilar with a semiautomatic firearm. Additionally, the information alleged Henderson had received four prior strikes and two prior serious felony convictions and that he had served four prior prison terms. The jury found him guilty as charged, and in a bifurcated proceeding, the judge found true the prior conviction allegations. The trial court struck all of the prior conviction allegations, except for one strike and one prior serious felony conviction. The ...

by Douglas Ankney

Vehement opposition by law ­enforcement stopped the passage of a 2022 Colorado bill that would have banned police from lying to juvenile suspects while attempting to extract confessions. Lawmakers projecting a “tough on crime” image called the bill “anti-law enforcement” and “pro-criminal.” But mounting evidence proves that minors are highly susceptible to giving false confessions.

Wrongful convictions have revealed that teenagers are less likely to understand their Miranda rights than adults are and that teenagers tend to focus more on immediate rewards instead of long-term consequences. The Innocence Project reports that nearly 30 percent of DNA exonerations involved false confessions and roughly one-third of the defendants in those cases were 18 or younger when they falsely confessed.

Lorenzo Montoya testified in favor of the now thwarted Colorado bill. Montoya was 14 years old when he confessed to being at the scene of a murder after two Denver police detectives had badgered him for two hours. Although Montoya’s mother was present for the initial portion of the interrogation, she eventually left him alone with detectives. Montoya, without any physical evidence linking him to the scene, was convicted of first-degree felony murder and served 13 years in prison before ...

by Douglas Ankney

According to Tracey Leigh Dowdeswell, forensic genetic genealogy (“FGG”) has solved 545 cases as of December 31, 2022. Dowdeswell is a professor of criminology and legal studies at Douglas College in Canada and is the first to put a number on cases solved using FGG. Dowdeswell is also the first to construct a sufficient sample frame for further research into FGG.

The birth of FGG is often tied to the arrest of Golden State Killer Joseph DeAngelo in April of 2018. Since then, investigators across the globe have repeatedly turned to FGG in attempting to solve some of their coldest cases. But FGG is not limited to only identifying perpetrators of crime. Unidentified deceased bodies have been identified, such as Joseph August Zarelli who was previously known as the Boy in the Box and
America’s Unknown Child.

Dowdeswell wrote in her paper (the “Forensic Genetic Genealogy Project V. 2022”): “I hope that this research will assist in our understanding this burgeoning investigative technique, and provide information to academic and public authorities seeking to better understand forensic genetic genealogy and formulate public polices surrounding its development and use.”

The Forensic Genetic Genealogy Project can be found on Mendeley ...

by Douglas Ankney

The Supreme Court of Colorado ruled that when a party has had an opportunity at trial to present race-neutral justifications for a challenged peremptory strike under the second step of Batson v. Kentucky, 476 U.S. 79 (1986), that party is later barred from introducing new race-neutral justifications on remand.

During the jury selection at Theodore Israel Madrid’s murder trial, the prosecutor peremptorily struck a prospective Black juror identified as J.T. In response, Madrid raised a Batson challenge. The prosecution then offered the following as justification for the peremptory strike:

“Judge, first of all, he’s being replaced by another African-American juror. So, I don’t think that they can really claim that this is not race neutral. But the real problem is we don’t know very much about him. He has a hearing issue it appears, and he’s sort of completely non responsive. We have very little information on him from the questionnaire and no time really to have a very detailed conversation with him. Terribly uncomfortable with him where we have very little information.”

The trial court repeated the prosecutor’s race-neutral justifications but cast doubt on whether J.T. was hard of hearing. The trial court then espoused its ...

by Douglas Ankney

The Supreme Court of Arizona held that the word “person” in the state’s self-defense justification statute, A.R.S. § 13-404(A), applies only to a defendant’s conduct, not the victim’s as well.

Jordan Christopher Ewer and two others confronted two people identified as “Gilbert” and “Emily.” Ewer drew his gun, and Emily threatened to hit him with a golf club. The two groups threw rocks at one another. Ewer and his companions backed away from the scene. Emily and Gilbert pursued them, and Ewer fired in their direction. Gilbert was struck in the back and died at the scene. Ewer was charged with second degree murder.

Prior to trial, Ewer requested the jury be instructed using the Revised Arizona Jury Instructions (“RAJI”) for justified use of deadly force in self-defense – RAJI 4.04 and 4.05; defense of a third person – RAJI 4.06; and crime prevention – RAJI 4.11. The State proposed that the word “defendant” in each of the instructions be replaced by the word “person.” The State argued that the jury could apply the justification instructions to Gilbert’s conduct as well as to Ewer’s. Over Ewer’s objection, the trial court obliged the State’s requested modifications to the ...