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A Night To Remember

Criminal Legal News: July, 2020

Issue PDF
Volume 3, Number 7

In this issue:

  1. A Nation on the Brink (p 1)
  2. Office of Homeland Security Circumventing Warrant Requirement by Buying Cellphone Location Data from Marketing Firm (p 9)
  3. From the Editor (p 10)
  4. Using Location Surveillance to Fight COVID-19 May Chill Free Speech and Association (p 11)
  5. This Is Not a Revolution. It’s a Blueprint for Locking Down the Nation (p 12)
  6. Fourth Circuit Expands Savings Clause of § 2255(e) to Include Later Retroactivity of New Rule (p 14)
  7. Seventh Circuit: Defendant’s Statement Given to Pretrial Services Can’t Be Admitted to Impeach Witness at Trial (p 16)
  8. California Court of Appeal Explains Procedural Requirements for Vacating Felony-Murder Conviction Via Section 1170.95 Petition (p 18)
  9. Police Violence Detrimental to Public Health (p 19)
  10. Congressmen File Amicus Brief Stressing Congressional Intent That First Step Act’s New Drug Laws Apply at Resentencing (p 20)
  11. Indiana Supreme Court: Removal of Police’s GPS Tracker on Suspect’s Vehicle Not Probable Cause of Theft, Suppression of Evidence (p 20)
  12. New Hampshire Supreme Court: Police Violated Miranda in Obtaining First Statement, and State Failed to Prove Second Statement Was Voluntary (p 22)
  13. 5-Year Study Shows Police Stop Black Drivers Less Often at Night When ‘Veil of Darkness’ Obscures Race (p 23)
  14. Declassified Court Ruling Details FBI Abuses of Mass Surveillance Data (p 24)
  15. Second Circuit: Three Important Rulings Under First Step Act (p 24)
  16. Marijuana Possession in Virginia Remains Illegal But Is Decriminalized (p 26)
  17. Eleventh Circuit Holds Hobbs Act Robbery Doesn’t Trigger Career Offender Enhancement (p 26)
  18. COVID-19 Creates Opportunity for Big Brother in the Sky (p 28)
  19. Biden Accuser Accused of Inflating Credentials to Qualify as Expert Witness, Calling Convictions into Question (p 28)
  20. Perjurous New York City Cop Sentenced to a Single Day in Jail (p 29)
  21. Nebraska Supreme Court: Multiple Theft Charges for Stealing Items Belonging to Several People at Same Time and Place Violates Double Jeopardy (p 30)
  22. Fourth Circuit: Standalone Rehaif Error Requires Automatic Vacatur of Guilty Plea (p 30)
  23. Is the Death Penalty Slowly Dying Across the Nation? (p 31)
  24. Joint State-Federal Task Forces Practice Rogue Justice Under Protection of Qualified Immunity (p 32)
  25. Colorado Supreme Court: Requiring Defense to Disclose Exhibits to Prosecution Before Trial Violates Due Process Rights (p 33)
  26. Iowa Supreme Court Orders Dismissal of Charges that State Brought in Breach of Plea Agreement (p 34)
  27. Justice Office Awards $145 Million in Forensic Science Grants (p 35)
  28. Carpenter Slowly Remaking Fourth Amendment Case Law (p 35)
  29. California Federal Court Rejects Plea Agreement’s Waiver of Compassionate Release Provision (p 36)
  30. Aggressive NYPD Police Tactics Spreading COVID-19 (p 36)
  31. COVID-19 Causing Some Pretrial Detainees to Spend More Time in Jail (p 37)
  32. California Supreme Court Announces Sentencing Law Changes Apply Until Revocation Sentence Becomes Final (p 38)
  33. NY Court of Appeals: Right to Review Suppression Decision When Decision Relates Solely to a Count Satisfied by Plea but Isn’t Count to Which Defendant Pled (p 38)
  34. Report: Cops Ill-Equipped to Handle Mental Illness Crisis in Hospitals (p 39)
  35. Plenty of Practice Prevents Poor Police Performance (p 40)
  36. Fifth Circuit Clarifies How ‘Pronouncement Requirement’ Applies to Supervision Conditions (p 40)
  37. First Circuit: Sentence Imposed Under 21 U.S.C. § 841(a)(1), (b)(1)(c) Is ‘Covered Offense’ Under § 404 of First Step Act (p 41)
  38. Minnesota Supreme Court: Hotel Guests Have Reasonable Expectation of Privacy in Registry Information (p 42)
  39. Sixth Circuit: Courts May Consider Good Prison Conduct in Sentence Reduction Under First Step Act (p 42)
  40. DNA Database of NYC’s Chief Medical Examiner Plagued with Errors (p 43)
  41. South Carolina Supreme Court Rejects U.S. Supreme Court’s Shifting of Burden to Defendant to Prove Absence of Exigent Circumstances in DUI Cases (p 44)
  42. Pennsylvania Supreme Court: Expired Vehicle Registration Isn’t ‘Breach of the Peace’ Justifying Traffic Stop (p 44)
  43. Report: Risk Assessment Tools not Effective, Especially When not Used (p 45)
  44. Sixth Circuit: District Court’s Refusal to Reduce Crack Sentence Under First Step Act Requires Justification (p 46)
  45. Florida Supreme Court Abandons Circumstantial Evidence Review Standard (p 46)
  46. Courts Oppose Prosecutors’ Attempts to Right Past Wrongs (p 47)
  47. No Trust Between Police and Communities They Patrol (p 47)
  48. COVID-19 May Ring in a New Era of High-Tech Private Policing (p 48)
  49. North Carolina Supreme Court: Giving Finger to Police Not Disorderly Conduct Justifying Traffic Stop (p 48)
  50. New Technique Separates Mixed DNA Evidence to Tell Suspects from Victims (p 49)
  51. Feds Ramp up Purchase of Riot Gear in Wake of COVID-19 Pandemic (p 49)
  52. Army Veteran Serving Life Without Parole for Taking $9 (p 50)
  53. Sixth Circuit Vacates Firearms Possession Conviction; Government Showed Jury Unauthenticated Prejudicial Facebook Video Not Admitted as Evidence (p 50)
  54. News in Brief (p 51)

A Nation on the Brink

How the Killing of George Floyd by Police Sparked Nationwide Protests and Calls for Systematic Change

“If one of us is not free, none of us are free.”
– Max Mills and Ayesha Muzaffar, Co-Chairs, Students Against Mass Incarceration, University of California, Davis School of Law ...

Office of Homeland Security Circumventing Warrant Requirement by Buying Cellphone Location Data from Marketing Firm

The Office of Homeland Security (“OHS”) has been purchasing “anonymized” cellphone location data for use in Customs and Border Protection (“CBP”) investigations, according to information obtained by the Wall Street Journal.

Under Carpenter v. United States, 138 S. Ct. 2206 (2018), law enforcement agents are ...

From the Editor

For virtually every person who’s seen the horrifying video of George Floyd’s final moments, his killing feels qualitatively different than the countless other police killings of unarmed individuals that plague America. True, there have been many others that were captured on video, and many involved a White ...

Using Location Surveillance to Fight COVID-19 May Chill Free Speech and Association

As governments act to contain COVID-19, tracing persons who have come in contact with infected persons is at the forefront of the move to contain the disease’s spread. Tracing people via location surveillance may prove to be an effective tool, but at what cost?

The Electronic ...

This Is Not a Revolution. It’s a Blueprint for Locking Down the Nation

by John W. Whitehead, The Rutherford Institute – Commentary

“When it gets down to having to use violence, then you are playing the system’s game. The establishment will irritate you—pull your beard, flick your face—to make you fight. Because once they’ve got you violent, then they know how to handle ...

Fourth Circuit Expands Savings Clause of § 2255(e) to Include Later Retroactivity of New Rule

The U.S. Court of Appeals for the Fourth Circuit held on March 4, 2020, that the savings clause of 28 U.S.C. § 2255(e) is available even if based on a court decision that existed earlier but was not made retroactive until after the direct appeal and first ...

Seventh Circuit: Defendant’s Statement Given to Pretrial Services Can’t Be Admitted to Impeach Witness at Trial

In a case of first impression, the U.S. Court of Appeals for the Seventh Circuit ruled that it is impermissible to admit a statement made by the defendant to Pretrial Services for the purpose of impeaching the testimony of a witness at trial.

In August 2014, Detective ...

California Court of Appeal Explains Procedural Requirements for Vacating Felony-Murder Conviction Via Section 1170.95 Petition

The Court of Appeal of California, Sixth Appellate District has explained the procedural requirements for adjudication of petitions filed pursuant to Penal Code § 1170.95.

In the middle of the night of June 14, 1991, John Lewis Drayton and three other men entered the Wards’ home with ...

Police Violence Detrimental to Public Health

by Douglas Ankney

The 25,000-member American Public Health Association (“APHA”) issued a statement addressing police violence that begins: “Law enforcement violence is a critical public health issue.” And in what could be termed a “typical case in support,” Joseph Goldstein of The New York Times reported the tragic stories of ...

Congressmen File Amicus Brief Stressing Congressional Intent That First Step Act’s New Drug Laws Apply at Resentencing

Courts often look to Congress when interpreting the meaning of a law. They look at Congress’ intent behind the law and any statements made by legislators in drafting the law. This is the “legislative history” of the law and one of the main tools courts use to ...

Indiana Supreme Court: Removal of Police’s GPS Tracker on Suspect’s Vehicle Not Probable Cause of Theft, Suppression of Evidence

The Supreme Court of Indiana suppressed all evidence resulting from search warrants obtained on the basis that the sheriff’s department concluded a suspect “stole” the GPS device being used to track him when it failed to transmit its location for 10 days.

Derek Heuring was suspected of ...

New Hampshire Supreme Court: Police Violated Miranda in Obtaining First Statement, and State Failed to Prove Second Statement Was Voluntary

The Supreme Court of New Hampshire affirmed a superior court’s decision suppressing the initial incriminating statements made by Dominic Carrier because police violated the protections of Miranda v. Arizona, 384 U.S. 436 (1966). The Court also affirmed the suppression of additional statements because the State failed ...

5-Year Study Shows Police Stop Black Drivers Less Often at Night When ‘Veil of Darkness’ Obscures Race

In the largest-ever study of racial profiling by police during traffic stops, Stanford University has shown that Black people are much less likely to be stopped after sunset when “a veil of darkness” masks their race. The five-year study analyzed 95 million traffic-stop records that had been ...

Declassified Court Ruling Details FBI Abuses of Mass Surveillance Data

The government declassified a court order from October 2018 that details the FBI’s misuse of its access to mass surveillance data collected in partnership with large tech and communications companies.

The order detailed what many Americans suspect: Federal agencies misuse mass surveillance in contravention of controls Congress ...

Second Circuit: Three Important Rulings Under First Step Act

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit made three important favorable rulings on April 24, 2020, concerning relief under the First Step Act for career offenders, those who get released while their motion is pending, and the proper avenue for relief.

The case came before ...

Marijuana Possession in Virginia Remains Illegal But Is Decriminalized

On May 21, 2020, the Commonwealth of Virginia became the 16th state to decriminalize possession of marijuana when Governor Ralph Northam signed Senate Bill 2 and House Bill 972.

The law, which becomes effective July 1, 2020, creates a civil penalty of no more than $25 for ...

Eleventh Circuit Holds Hobbs Act Robbery Doesn’t Trigger Career Offender Enhancement

The U.S. Court of Appeals for the Eleventh Circuit held on March 24, 2020, that substantive Hobbs Act robbery is “too broad” and doesn’t qualify to require a sentencing enhancement under the career offender provision of the United States Sentencing Guidelines (“USSG”).

In a consolidated direct appeal ...

COVID-19 Creates Opportunity for Big Brother in the Sky

Now that COVID-19 has brought about new public enforcement policies, a dystopian world where government agencies watch our every move may not be as far in the future as we might think. With the intent of observing crowd activities in public places (and private ones as ...

Biden Accuser Accused of Inflating Credentials to Qualify as Expert Witness, Calling Convictions into Question

Tara Reade, who has accused presumptive Democratic presidential nominee Joe Biden of sexually assaulting her in 1993 when she worked for him as an aide, now faces accusations that she inflated her academic credentials to win certification as a prosecution expert witness on domestic violence in several ...

Perjurous New York City Cop Sentenced to a Single Day in Jail

Pedro Barbosa lives in New York City. Michael Bergmann is a former New York City cop who was fired from the force for providing false testimony in court that could have sent Barbosa to prison for up to 15 years.

“They [referring to Bergmann and his partner] ...

Nebraska Supreme Court: Multiple Theft Charges for Stealing Items Belonging to Several People at Same Time and Place Violates Double Jeopardy

In a case of first impression, the Nebraska Supreme Court held on March 13, 2020, that theft from multiple owners “at the same and in the same place … constitutes a single offense,” and thus multiple theft charges violates the Double Jeopardy Clause of both the Nebraska ...

Fourth Circuit: Standalone Rehaif Error Requires Automatic Vacatur of Guilty Plea

The U.S. Court of Appeals for the Fourth Circuit held that the district court’s failure to give a defendant notice that he belonged to a class of persons prohibited from possessing a firearm during his plea colloquy constitutes a structural error that requires his guilty plea ...

Is the Death Penalty Slowly Dying Across the Nation?

In 1972, the Supreme Court of the United States (“SCOTUS”) in Furman v. Georgia eliminated the death penalty. The Court, in striking down state-sanctioned killing, identified problems such as racism, arbitrary application, and the fact that ending people’s lives did little to nothing in the way of ...

Joint State-Federal Task Forces Practice Rogue Justice Under Protection of Qualified Immunity

Hundreds of rogue joint state-federal task forces—accountable to no one, and acting as units of vigilante justice—continually violate the constitutional rights of individuals while hiding behind the aegis of “qualified immunity.”

The concept of the “joint task force” was first initiated by President Richard Nixon in ...

Colorado Supreme Court: Requiring Defense to Disclose Exhibits to Prosecution Before Trial Violates Due Process Rights

Ending what had been a “standard case-management practice,” the Supreme Court of Colorado held that a trial court may not order a defendant to turn over his defense exhibits to the prosecution prior to trial under the discovery rule because it violates a defendant’s constitutional rights under ...

Iowa Supreme Court Orders Dismissal of Charges that State Brought in Breach of Plea Agreement

The Supreme Court of Iowa ordered the dismissal of charges after determining the State breached a plea agreement wherein the State had promised the charges would not be brought.
A fire on January 26, 2018, burned a pole barn in Powshiek County. Poweshiek County Sheriff’s Deputy Steve ...

Justice Office Awards $145 Million in Forensic Science Grants

The Office of Justice Programs at the Department of Justice recently announced grants of more than $145 million being awarded through various programs it helps to fund. These grants will cover initiatives centered on forensic science.

Notable inclusions from this total are:

• $78 million to state ...

Carpenter Slowly Remaking Fourth Amendment Case Law

The U.S. Supreme Court issued a landmark decision in 2018, which has been slowly changing the way courts interpret the Fourth Amendment of the U.S. Constitution in our era of mobile technology — and impacting the day-to-day investigative efforts of police.

In Carpenter v. United States, ...

California Federal Court Rejects Plea Agreement’s Waiver of Compassionate Release Provision

The U.S. District Court for the Northern District of California rejected the plea agreement that required the defendant to waive his right to seek compassionate relief unless he exhausted all administrative rights of appeal for the Bureau of Prisons’ (“BOP”) failure to bring such a motion ...

Aggressive NYPD Police Tactics Spreading COVID-19

Like a scene out of Will Smith’s movie, Legend, one of the most iconic visual images during the New York City lockdown in the wake of COVID-19 is a photo of a lone policeman on horseback patrolling a deserted downtown street. Juxtaposed to that image ...

COVID-19 Causing Some Pretrial Detainees to Spend More Time in Jail

In New York, persons accused of felonies are brought before a judge who decides whether to impose bail. Then prosecutors must present the evidence before a grand jury within six days and obtain an indictment. If the prosecutor fails in this process, the person can plead with ...

California Supreme Court Announces Sentencing Law Changes Apply Until Revocation Sentence Becomes Final

The Supreme Court of California announced an extension of its prior rule of when to allow application of an amended sentencing statute, such that it may be applied to a defendant’s sentence still under appeal even though that sentence resulted when his probation was revoked.

In November ...

NY Court of Appeals: Right to Review Suppression Decision When Decision Relates Solely to a Count Satisfied by Plea but Isn’t Count to Which Defendant Pled

The Court of Appeals of New York held that N.Y. Crim. Proc. Law (“CPL”) 710.70(2) grants a defendant the right to appellate review of a decision on a suppression motion when the decision relates solely to a count that was satisfied by a plea of guilty but ...

Report: Cops Ill-Equipped to Handle Mental Illness Crisis in Hospitals

by Ed Lyon 

The U.S. Department of Labor ranks hospitals as one of the most dangerous workplaces for a person to work. It seems that hospitals are even more dangerous a venue for a mentally ill person seeking treatment, particularly when police are involved.

“Cops are not trained in best ...

Plenty of Practice Prevents Poor Police Performance

It is a rare week to pass without a report of an accidental shooting by police.

The reason for better than 99 percent of these accidental weapon discharges is the lack of ongoing firearm training after a law enforcement officer completes initial academy training.

Most firearms training ...

Fifth Circuit Clarifies How ‘Pronouncement Requirement’ Applies to Supervision Conditions

The U.S. Court of Appeals for the Fifth Circuit clarified how the requirement that a district court pronounce its sentence in the presence of the defendant applies to conditions of supervised release.

After Rosie, Walter, and Anita Diggles were convicted by a jury of fraud in connection ...

First Circuit: Sentence Imposed Under 21 U.S.C. § 841(a)(1), (b)(1)(c) Is ‘Covered Offense’ Under § 404 of First Step Act

The U.S. Court of Appeals for the First Circuit held that a conviction for violation of 21 U.S.C. § 841(a)(1) is a “covered offense” under § 404 of the First Step Act where the defendant was sentenced under 21 U.S.C. § 841(b)(1)(c).

In January 2007, Carl Smith ...

Minnesota Supreme Court: Hotel Guests Have Reasonable Expectation of Privacy in Registry Information

In a case of first impression in the Supreme Court of Minnesota, the Court held that hotel guests have a reasonable expectation of privacy in the sensitive location information found in hotels’ guest registries, and police must have a reasonable, articulable suspicion of wrongdoing to search those ...

Sixth Circuit: Courts May Consider Good Prison Conduct in Sentence Reduction Under First Step Act

The U.S. Court of Appeals for the Sixth Circuit held on April 14, 2020, that a sentencing court may consider a prisoner’s good conduct in fashioning a lower sentence in light of the First Step Act.

The ruling came after John Allen filed under the First Step ...

DNA Database of NYC’s Chief Medical Examiner Plagued with Errors

Darrell Harris was arrested for a home burglary that occurred in December 2018.

A detective from the New York Police Department (“NYPD”) told Harris his DNA had been recovered from a window of the home. Even though the arrest cost Harris his job at the John F. ...

South Carolina Supreme Court Rejects U.S. Supreme Court’s Shifting of Burden to Defendant to Prove Absence of Exigent Circumstances in DUI Cases

by Douglas Ankney

The Supreme Court of South Carolina rejected the U.S. Supreme Court’s ruling in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), to the extent that Mitchell shifts to the defendant the burden to prove the absence of exigent circumstances to justify a warrantless blood draw.

Kathryn ...

Pennsylvania Supreme Court: Expired Vehicle Registration Isn’t ‘Breach of the Peace’ Justifying Traffic Stop

The Supreme Court of Pennsylvania described the contours of “breach of the peace” and held that operation of a motor vehicle with an expired registration sticker is a traffic violation that does not qualify as a breach of the peace justifying a traffic stop.

Victor Lee Copenhaver ...

Report: Risk Assessment Tools not Effective, Especially When not Used

by Kevin Bliss

Risk assessment tools are not effectively reducing pretrial detention or prejudicial profiling practices in determining bail. In addition, few counties concern themselves with the effectiveness of such programs, not even bothering to monitor their results.

Two organizations looking to make the government more transparent, Media Mobilizing Project ...

Sixth Circuit: District Court’s Refusal to Reduce Crack Sentence Under First Step Act Requires Justification

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held on May 15, 2020, that the refusal by the U.S. District Court for the Eastern District of Kentucky to reduce a crack cocaine sentence under the First Step Act required the court to justify why it wouldn’t ...

Florida Supreme Court Abandons Circumstantial Evidence Review Standard

by David M. Reutter

In affirming the conviction and death sentence of Sean Alonzo Bush, the Supreme Court of Florida announced it is abandoning the different standard for reviewing wholly circumstantial evidence cases.

Bush was convicted of the brutal attack on his estranged wife Nicole Bush. The couple was separated ...

Courts Oppose Prosecutors’ Attempts to Right Past Wrongs

by Douglas Ankney

Over the past 10 years, a growing number of reform-minded prosecutors has emerged across the U.S., seeking not only to reform current tough-on-crime practices but also to acknowledge mistakes of the past. For example, in 2018, the Wayne County prosecutor’s office opened a Conviction Integrity Unit (“CIU”) ...

No Trust Between Police and Communities They Patrol

by Kevin Bliss

The $14 billion invested in police equipment and community policing in the U.S. has not helped instill trust and camaraderie between the police and black communities, says writer and activist Philip McHarris, in an article published in The Appeal.

In fact, it only offers more opportunity ...

COVID-19 May Ring in a New Era of High-Tech Private Policing

by Michael Fortino, Ph.D.

Rand Corporation, a prominent think tank known for its ability to forecast future trends, describes a post-COVID-19 era where police departments experience reduced, if not curtailed power, and are rendered nearly obsolete as a protectorate of the public from risk of a coronavirus outbreak.

Retired Police ...

North Carolina Supreme Court: Giving Finger to Police Not Disorderly Conduct Justifying Traffic Stop

by Dale Chappell

A unanimous Supreme Court of North Carolina held on May 1, 2020, that waving the middle finger at the police was not disorderly conduct to justify a traffic stop and subsequent charges stemming from that stop.

Trooper Paul Stevens of the North Carolina Highway Patrol was assisting ...

New Technique Separates Mixed DNA Evidence to Tell Suspects from Victims

by Dale Chappell

When 17-year-old Barbara Blatnik was found dead in December 1987, Cleveland police found DNA under her fingernails, but it was a mixture of hers and her killer’s. At the time, DNA techniques couldn’t separate mixed DNA, and the case went cold.

However, a new technique used by ...

Feds Ramp up Purchase of Riot Gear in Wake of COVID-19 Pandemic

by Douglas Ankney

In preparation for what may aptly be described as “Mad Max Meets COVID-19,” the federal government has submitted “expedited purchase orders” for disposable cuffs, gas masks, ballistic helmets, riot gloves, and other protective equipment for the federal police assigned to guard Veterans Affairs (“VA”) facilities.

According to ...

Army Veteran Serving Life Without Parole for Taking $9

by Douglas Ankney

Willie Simmons became addicted to drugs while in the Army and stationed abroad. In 1982, he was in Alabama and “in need of a quick fix.”

Simmons wrestled a man to the ground and took his wallet that contained nine dollars. Police arrested him a few blocks ...

Sixth Circuit Vacates Firearms Possession Conviction; Government Showed Jury Unauthenticated Prejudicial Facebook Video Not Admitted as Evidence

by Matt Clarke

In March 27, 2020, the U.S. Court of Appeals for the Sixth Circuit vacated a firearms possession conviction from the U.S. District Court for the Northern District of Ohio because the Government showed the jury a social-media video of a masked person it alleged was the defendant ...

News in Brief

California: The death of David Glen Ward of Petaluma was declared a homicide by the Marin County coroner in May 2020, followed by a lawsuit from David’s mother, Ernestine Ward, alleging wrongful death, excessive force and negligent supervision by Sonoma County sheriff’s deputies. Leading up to the fatal encounter, ...

 

 

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