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Criminal Legal News: November, 2022

Issue PDF
Volume 5, Number 11

In this issue:

  1. The Battle Against CSAM: The Front Line of the Government’s War on the Fourth Amendment (p 1)
  2. Illinois Supreme Court Announces Krankel’s Pro Se Posttrial IAC Procedure Applies to Juvenile Delinquency Proceedings and Clarifies That Krankel Procedure Applies to Both Appointed and Retained Counsel (p 13)
  3. Federal Habeas Corpus: Obtaining Habeas Relief After a Guilty Plea (p 14)
  4. Washington Supreme Court Clarifies Burden of Production Standard for Entrapment to Be Entitled to Jury Instruction (p 16)
  5. Seventh Circuit: Indiana Statute on Dealing Methamphetamine Facially Overbroad and Does Not Qualify as Aggravated Felony for Immigration Purposes (p 18)
  6. Sixth Circuit: Conspiracy to Commit Hobbs Act Robbery and Attempted Hobbs Act Robbery Are Not Qualifying Predicates to Sustain § 924(j) Conviction (p 19)
  7. Tenth Circuit Rules Trooper’s Hunches Insufficient to Prolong Traffic Stop, Explains ‘Rodriguez Moment,’ and Suppresses Evidence Obtained as Result of Unlawful Seizure (p 20)
  8. California Court of Appeal: Statute Allowing Noncitizens to Vacate Convictions Due to Failure to Understand Adverse Immigration Consequences Applies Retroactively to Convictions Resulting From Trials That Are Not Yet Final (p 22)
  9. Third Circuit Announces Conspiracy to Commit ‘Crime of Violence’ Not ‘Crime of Violence’ for Purposes of Sentencing Enhancement Under Guideline § 2K2.1(a)(4) (p 24)
  10. Digital Privacy and Law After Dobbs (p 24)
  11. Seventh Circuit: Fugitive’s Cell Phone Tracked to Apartment Building Does Not Establish Reasonable Suspicion of Criminal Activity for Warrantless Seizure and Search of All Occupants and Apartments in Building (p 26)
  12. Eleventh Circuit Reverses Denial of First Step Act Relief Where District Court Construed Letter Asking About Eligibility To Be Motion Requesting Relief (p 28)
  13. Fourth Circuit: Convictions Identified in PSR but Not Relied Upon as Predicates for ACCA Enhancement at Sentencing Cannot Be Substituted for Subsequently Disqualified Original Predicate Convictions on Collateral Review (p 30)
  14. Chicago’s Traffic Camera Program: Racial and Income Disparities for Black and Hispanic Drivers (p 31)
  15. Utah Supreme Court Explains Community Caretaker Exception to Warrant Requirement and Grants Motion to Suppress of Defendant Convicted of DUI Found Sleeping in Parked Car at 24-Hour Restaurant (p 34)
  16. Fifth Circuit Orders Limited Remand Where District Court’s Denial of First Step Act Relief Unclear (p 35)
  17. Fourth Circuit: Plea Agreement Barred Prosecution of Dismissed Charges After Successfully Appealing Conviction (p 36)
  18. Studies Place ‘Rationality’ of Residential Restrictions in Doubt (p 36)
  19. Book Review: Manufacturing Criminals: Fourth Amendment Decay in the Electronic Age (p 38)
  20. Oregon Supreme Court: State Sentencing Guidelines Control Repeat Sex Offender Downward Departure Sentences (p 39)
  21. California Court of Appeal Explains ‘Automobile Exception’ and ‘Plain-View Seizure’ Doctrines, Rules Warrantless Seizure of Defendant’s Vehicle Parked on Friend’s Property Violates Fourth Amendment (p 40)
  22. CBP Deploys Surveillance Blimp Over Nogales, Arizona (p 41)
  23. Drones Gaining Popularity as a Law Enforcement Tool (p 42)
  24. Eleventh Circuit Court of Appeals: Rehaif Announced New Rule of Substantive Law and Applies Retroactively to Initial § 2255 Motions (p 42)
  25. Citizen Programs Have Positive Impact for Crisis Calls, Resulting in Fewer Arrests and Hospitalizations for Mental Health Crisis Calls (p 44)
  26. Californians Now Have Say in Whether Their Local Police Force Looks Like a Military Outpost (p 44)
  27. Common Sense Changes Can Fix the Cracks in Forensic Science’s Foundation (p 45)
  28. Daniel Taylor Was Innocent. He Spent Decades in Prison Trying to Fix the State’s Mistake. (p 46)
  29. Aversion to Error: Americans View Wrongful Acquittals and Wrongful Convictions to Be Errors of Equal Magnitude (p 48)
  30. 93-Year-Old Woman Owed $2,300 in Tax Debt so Government Sold Her $40,000 Home and Kept all Proceeds (p 50)
  31. News in Brief (p 50)

The Battle Against CSAM: The Front Line of the Government’s War on the Fourth Amendment

by Anthony W. Accurso

Few topics elicit the level of disgust, outrage, and hyperbole as the subject of the sexual abuse of children does in America. No child should be subjected to sexual assault, but our collective efforts to prevent this harm should be mindful of other values we hold ...

Illinois Supreme Court Announces Krankel’s Pro Se Posttrial IAC Procedure Applies to Juvenile Delinquency Proceedings and Clarifies That Krankel Procedure Applies to Both Appointed and Retained Counsel

by Mark Wilson

The Supreme Court of Illinois held that the Court’s pro se posttrial ineffective assistance of counsel (“IAC”) procedure applies to juvenile delinquency proceedings and extends to IAC claims against both retained and appointed counsel. The court reversed, holding that the trial court erred in failing to conduct ...

Federal Habeas Corpus: Obtaining Habeas Relief After a Guilty Plea

by Dale Chappell

It’s long been said that a valid guilty plea goes a long way in barring post-conviction relief in the courts. While that can be true for challenges to the guilty plea itself, it’s often not true for challenges to a sentence resulting from that guilty plea. After ...

Washington Supreme Court Clarifies Burden of Production Standard for Entrapment to Be Entitled to Jury Instruction

by Matt Clarke

The Supreme Court of Washington held that a trial court erred when it refused to permit an attempted child rape defendant to introduce evidence of his lack of a criminal history to support his claim of lack of propensity to commit the crime and denied his requested ...

Seventh Circuit: Indiana Statute on Dealing Methamphetamine Facially Overbroad and Does Not Qualify as Aggravated Felony for Immigration Purposes

by Jacob Barrett

The U.S. Court of Appeals for the Seventh Circuit reversed a decision by the Board of Immigration Appeals (“BIA”) to remove Jonathan Aguirre-Zuniga for a conviction for dealing methamphetamine under Indiana code § 35-48-4-1.1, holding it did not qualify as an aggravated felony for the purpose of ...

Sixth Circuit: Conspiracy to Commit Hobbs Act Robbery and Attempted Hobbs Act Robbery Are Not Qualifying Predicates to Sustain § 924(j) Conviction

by Douglas Ankney

The U.S. Court of Appeals reversed the U.S. District Court for the Middle District of Tennessee’s denial of Dominique Cordell Wallace’s 28 U.S.C. § 2255 motion because his convictions for conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery are not qualifying predicates after United ...

Tenth Circuit Rules Trooper’s Hunches Insufficient to Prolong Traffic Stop, Explains ‘Rodriguez Moment,’ and Suppresses Evidence Obtained as Result of Unlawful Seizure

by Anthony W. Accurso

The U.S. Court of Appeals for the Tenth Circuit held that the various hunches of drug-related activity articulated by a Utah Highway Patrol Trooper were insufficient to prolong a traffic stop in order for a drug-detection dog to arrive on scene to search for drugs, that ...

California Court of Appeal: Statute Allowing Noncitizens to Vacate Convictions Due to Failure to Understand Adverse Immigration Consequences Applies Retroactively to Convictions Resulting From Trials That Are Not Yet Final

by Harold Hempstead

The Court of Appeal of California, Third Appellate District, held that Assembly Bill No. 1259’s (2021-2022 Reg. Sess.) ameliorative changes to Penal Code § 1473.7 apply retroactively to defendants who were convicted by trial as well as by plea, whose cases are not yet final, and who ...

Third Circuit Announces Conspiracy to Commit ‘Crime of Violence’ Not ‘Crime of Violence’ for Purposes of Sentencing Enhancement Under Guideline § 2K2.1(a)(4)

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit held that U.S. Sentencing Guidelines (“U.S.S.G.”) § 2K2.1 does not apply to conspiracy to commit a crime of violence.

Junior Abreu pleaded guilty to possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). ...

Digital Privacy and Law After Dobbs

by Anthony W. Accurso

This June, the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), a ruling that fundamentally changed the landscape of law relating to abortion access in America. This change will play out in multiple areas of the law, though several ...

Seventh Circuit: Fugitive’s Cell Phone Tracked to Apartment Building Does Not Establish Reasonable Suspicion of Criminal Activity for Warrantless Seizure and Search of All Occupants and Apartments in Building

by Anthony W. Accurso

The U.S. Court of Appeals for the Seventh Circuit held that GPS location data of a fugitive’s cell phone putting it at a particular apartment building does not establish reasonable suspicion of criminal activity by all the occupants of the building justifying the warrantless investigative seizure ...

Eleventh Circuit Reverses Denial of First Step Act Relief Where District Court Construed Letter Asking About Eligibility To Be Motion Requesting Relief

by Douglas Ankney

The U.S. Court of Appeals for the Eleventh Circuit reversed an order of the U.S. District Court for the Middle District of Florida that construed a letter from Tydearain Smith asking whether he was eligible for relief under the First Step Act of 2018 (“FSA”) and requesting ...

Fourth Circuit: Convictions Identified in PSR but Not Relied Upon as Predicates for ACCA Enhancement at Sentencing Cannot Be Substituted for Subsequently Disqualified Original Predicate Convictions on Collateral Review

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (“ACCA”) cannot be preserved on collateral review by treating as four separate qualifying predicate offenses stemming from a drug arrest that was identified ...

Chicago’s Traffic Camera Program: Racial and Income Disparities for Black and Hispanic Drivers

by Harold Hempstead

Chicago’s automated traffic enforcement camera program is one of the largest in America, with almost 300 locations around the city being monitored by cameras. The red-light camera program was introduced in 2003, by then-Chicago Mayor Richard Daley. His successor Rahm Emanuel expanded the program in 2013 to ...

Utah Supreme Court Explains Community Caretaker Exception to Warrant Requirement and Grants Motion to Suppress of Defendant Convicted of DUI Found Sleeping in Parked Car at 24-Hour Restaurant

by Douglas Ankney

The Supreme Court of Utah explained the community caretaking exception to the warrant requirement and reversed the Court of Appeals’ (“COA”) affirmance of a district court’s denial of Brett Smith’s motion to suppress evidence obtained without a warrant or applicable exception to the warrant requirement in violation ...

Fifth Circuit Orders Limited Remand Where District Court’s Denial of First Step Act Relief Unclear

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit ordered a limited remand where the U.S. District Court for the Western District of Texas denied Gabriel Perez’s petition under § 404 of the First Step Act of 2018 (“FSA”) without adequately explaining its reasons.

Perez was convicted ...

Fourth Circuit: Plea Agreement Barred Prosecution of Dismissed Charges After Successfully Appealing Conviction

by David M. Reutter

The U.S. Court of Appeals for the Fourth Circuit held that the Government was barred by a plea agreement from pursuing dismissed charges after the defendant prevailed on appeal in challenging the charge to which he entered a plea of guilty.

Shelby Petties was indicted in ...

Studies Place ‘Rationality’ of Residential Restrictions in Doubt

by Jayson Hawkins

Few terms conjure a more apprehensive reaction than “sex offender.” Yet, like those convicted of any other crimes, the vast majority of sex offenders eventually serve their sentences and return to society. Various localities have adopted policies limiting where such individuals may live, usually by barring them ...

Book Review: Manufacturing Criminals: Fourth Amendment Decay in the Electronic Age

by Anthony W. Accurso

Bonnie Burkhardt was your average tech-oriented government employee who happened to stumble across a network of law enforcement officers who regularly violate federal and Virginia state laws to enrich themselves. If this sounds like the plot of a John Grisham novel, you’ll be surprised to learn ...

Oregon Supreme Court: State Sentencing Guidelines Control Repeat Sex Offender Downward Departure Sentences

by Mark Wilson

The Supreme Court of Oregon unanimously held that upon finding that a life without parole (“LWOP”) sentence is not appropriate under Oregon’s repeat sex offense law, sentence must be imposed under the state sentencing guidelines.

Oregon lawmakers enacted ORS 137.719 in 2001. Section 1 requires a presumptive ...

California Court of Appeal Explains ‘Automobile Exception’ and ‘Plain-View Seizure’ Doctrines, Rules Warrantless Seizure of Defendant’s Vehicle Parked on Friend’s Property Violates Fourth Amendment

by Anthony W. Accurso

The Court of Appeal of California, Third Appellate District, ordered the suppression of evidence obtained from defendant’s vehicle parked on private property belonging to a family friend after police seized it without a warrant for that location, concluding that the automobile exception to the warrant requirement ...

CBP Deploys Surveillance Blimp Over Nogales, Arizona

by Anthony W. Accurso

Customs and Border Patrol (“CBP”) launched its 17th surveillance blimp in June 2022, this time in a stationary location over Nogales, Arizona.

CBP put out a press release about the blimp the day before it was launched, though it did not directly notify the residents of ...

Drones Gaining Popularity as a Law Enforcement Tool

by Casey J. Bastian

Police departments across the U.S. have been increasingly reliant on drones for a variety of law enforcement duties. The Huntsville Police Department (“HPD”) in Alabama has seen a 300 percent year-over-year increase in drone usage since 2017. The HPD drone program has been hailed as a ...

Eleventh Circuit Court of Appeals: Rehaif Announced New Rule of Substantive Law and Applies Retroactively to Initial § 2255 Motions

by David M. Reutter

The U.S. Court of Appeals for the Eleventh Circuit held that Rehaif v. United States, 139 S. Ct. 2191 (2019), “announced a new rule of substantive law that applies retroactively” to an initial 28. U.S.C. § 2255 motion.

The Court’s opinion was issued in an ...

Citizen Programs Have Positive Impact for Crisis Calls, Resulting in Fewer Arrests and Hospitalizations for Mental Health Crisis Calls

by David M. Reutter

Several police departments have turned to trained citizens to respond to crisis calls. The results have been positive, as there have been fewer arrests and hospitalizations in these jurisdictions.

The St. Petersburg, Florida, Police Department in 2020 decided not to hire more officers and instead diverted ...

Californians Now Have Say in Whether Their Local Police Force Looks Like a Military Outpost

by Douglas Ankney

With the passage of A.B. 481, Californians have a say as to whether their local police agency looks like a military outpost.

For years, the U.S. military has given local law enforcement agencies weapons of war that are designed to engage foreign adversaries on the battlefield, including ...

Common Sense Changes Can Fix the Cracks in Forensic Science’s Foundation

by Jacob Barrett

There is no universal requirementin forensic science to be an accredited laboratory, and instead of accrediting an entire lab, many accreditation vendors allow labs to choose which sections to accredit, e.g., just DNA or firearms. That is a problem, says Brian Gestring, forensic scientist and consultant.

Gestring ...

Daniel Taylor Was Innocent. He Spent Decades in Prison Trying to Fix the State’s Mistake.

He was in police custody at the time of the murders, but a dubious confession led to his wrongful conviction while Chicago police and prosecutors turned a blind eye to inconvenient facts that eventually exonerated him.

by Steve Mills, ProPublica

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up ...

Aversion to Error: Americans View Wrongful Acquittals and Wrongful Convictions to Be Errors of Equal Magnitude

by Casey J. Bastian

As we evolve our systems of criminaljustice, it becomes apparent that we must first agree what constitutes “justice.” And when we focus on what is justice within the criminal procedures for adjudicating guilt, an old maxim is frequently cited by many people — it is “better ...

93-Year-Old Woman Owed $2,300 in Tax Debt so Government Sold Her $40,000 Home and Kept all Proceeds

by Ashleigh N. Dye

Geraldine Tyler, 93, of Minneapolis owed the government nearly $15,000 in tax debt, so the government sold her home for $40,000 and kept the proceeds. Tyler left her condominium in 2010 after gun violence in her neighborhood and dangerous situations left her feeling unsafe. She was ...

News in Brief

Arkansas: A Mulberry police officer and two sheriff’s deputies from Crawford County were suspended after a video surfaced appearing to show them beating a man suspected of making violent threats. Maine Public Radio reported that the three officers were videoed by a bystander as they held down Randall Worcester, ...

 

 

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