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Criminal Legal News: December, 2022

Issue PDF
Volume 5, Number 12

In this issue:

  1. The Pariah (p 1)
  2. Sixth Circuit: District Court Confused ‘Attenuation Doctrine’ and ‘Inevitable Discovery Exception’ in Applying Exclusionary Rule (p 10)
  3. Texas Court of Criminal Appeals: Under State Felon in Possession of Firearm Statute, Possessing Multiple Firearms Simultaneously Constitutes One Offense, Not Multiple (p 12)
  4. Fifth Circuit Announces Louisiana Aggravated Assault With Firearm Still Not ‘Crime of Violence’ After 2012 Amendment for Purposes of Sentencing Guidelines (p 14)
  5. Seventh Circuit: Sentencing Court’s ‘Inoculating Statement’ Regarding Potential Guidelines Miscalculation Failed to Satisfy Conditions of Abbas (p 14)
  6. Federal Habeas Corpus: Role of the Magistrate Judge (p 16)
  7. Michigan Supreme Court Announces Forfeited Structural Error Automatically Satisfies Third Prong of Plain Error Standard Without a Showing of Prejudice (p 18)
  8. Massachusetts Supreme Judicial Court Announces New Rule Governing Warrants for CSLI and Tower Dumps, Suppresses CSLI Evidence Because Warrant Lacked Particularized Facts Establishing Nexus Between Defendant’s Use of Cell Phone and Charged Crimes (p 20)
  9. Fourth Circuit: Coram Nobis Appropriate Remedy to Achieve Justice Where Petitioner Actually Innocent but Completed Sentence (p 22)
  10. DOJ: Unlawful Snitching Program Run by the Orange County, California, DA’s Office and Sheriff’s Department Compromised Unknown Number of Convictions (p 22)
  11. Pennsylvania Supreme Court Announces Challenge to Presumptively Vindictive Sentence Constitutes ‘Legality Challenge’ and Thus Cognizable Under PCRA (p 24)
  12. Ninth Circuit Clarifies Framework for Applying Minor-Role Adjustment in U.S. Sentencing Guideline § 3B1.2(b) (p 25)
  13. Washington Supreme Court Announces Race and Ethnicity Are Relevant Factors in Analysis of Whether Someone Has Been ‘Seized’ (p 26)
  14. Wyoming Supreme Court: Preventing Door From Slamming in Face of Police Officer Does Not Constitute Implied Consent to Enter Home Without a Warrant (p 28)
  15. First Circuit Announces Courts May Consider First Step Act’s Non-Retroactive Changes to Sentencing Law in Determining Whether ‘Extraordinary and Compelling’ Reason Exists for Compassionate Release in Prisoner-Initiated Motion (p 30)
  16. Louisiana Supreme Court Announces Conviction of Lesser Included Offense Subsequently Vacated as Unconstitutional Constitutes Implied Acquittal of Higher Charge; Double Jeopardy Bars Retrial on Higher Charge (p 32)
  17. Seventh Circuit Announces Adoption of Uniform Procedure to Be Followed Where Plea Agreement Includes an ‘Appeal Waiver’ and Defendant Files Notice of Appeal (p 33)
  18. Rhode Island Supreme Court: DUI Suspect Was in ‘Custody’ so Un-Mirandized Roadside Statements Properly Suppressed (p 34)
  19. Social Media Surveillance (p 35)
  20. Pennsylvania Supreme Court Announces Challenge to SORNA-Based Illegality of Sentence Claim Cannot Be Waived, Allowing for Challenge at Any Time — Even if First Raised on Appeal (p 36)
  21. IRS Continues Practice of Government Agencies Hiding Their Abuse of Civil Forfeiture Procedures (p 36)
  22. Institutional Resistance to Police Reform Continues (p 37)
  23. Next Gen Facial Recognition Identifies Your Associates, Too (p 38)
  24. Illinois Law Protects Personal Data (p 38)
  25. Study Examines Link Between Fines and Crime (p 40)
  26. New York Follows California’s Lead Becoming Second State To Require Microstamping of Semiautomatic Handguns (p 41)
  27. Location Tracking Devices Can Create the Appearance of Guilt (p 41)
  28. The Sixth Amendment Right to Assistance of Legal Counsel: An Examination of Federal Justice System Outcomes (p 42)
  29. Drone Company Is Establishing Cozy Relationship With Police (p 44)
  30. The Insidious Nexus Between Law Enforcement Budget Increases and Misdemeanor Policing (p 45)
  31. Corporate Data Brokers Help Law Enforcement Spy on Millions of Law-Abiding People (p 46)
  32. That Robotaxi Is Watching You (p 47)
  33. $175,000 Awarded to Colorado Man Tased by Cop Angered Over His ‘Fuck Bad Cops’ Placard (p 47)
  34. Predictive Policing Doesn’t Reduce Crime but Does Increase Targeting of Vulnerable Communities (p 48)
  35. Prosecutorial Misconduct Cause of More Than 550 Death Penalty Reversals and Exonerations (p 49)
  36. Michigan Makes Civil Forfeiture Easier at Airports (p 49)
  37. News in Brief (p 50)
  38. New FBI Tip Line: Further Incentive to Abuse Civil Asset Forfeiture (p 50)

The Pariah

He Declined the FBI’s Offer to Become an Informant. Then His Life Was Ruined.

by Murtaza Hussain, The Intercept

Aswad Khan didn’t understandwhypeople were congratulating him. On a February morning in 2017, rolling out of bed at his home in an upper-middle class area of Karachi, Pakistan, Khan saw a ...

Sixth Circuit: District Court Confused ‘Attenuation Doctrine’ and ‘Inevitable Discovery Exception’ in Applying Exclusionary Rule

by Anthony W. Accurso

The U.S. Court of Appeals for the Sixth Circuit vacated the U.S. District Court for the District of Western Tennessee’s denial of a defendant’s suppression motion, ruling the court applied the standard for judging exceptions to the warrant requirement under the attenuation doctrine instead of the ...

Texas Court of Criminal Appeals: Under State Felon in Possession of Firearm Statute, Possessing Multiple Firearms Simultaneously Constitutes One Offense, Not Multiple

by Douglas Ankney

The Court of Criminal Appeals of Texas held that possession of a firearm by a convicted felon is a “circumstances offense;” consequently, simultaneously possessing multiple firearms is one offense.

Floyd Woods was charged by two indictments with the offense of unlawful possession of a firearm by a ...

Fifth Circuit Announces Louisiana Aggravated Assault With Firearm Still Not ‘Crime of Violence’ After 2012 Amendment for Purposes of Sentencing Guidelines

by Matt Clarke

The U.S. Court of Appeals for the Fifth Circuit held that a prior conviction for aggravated assault with a firearm under Louisiana state law, La. R.S. 14:37.4 is not categorically a “crime of violence” as defined by U.S. Sentencing Guidelines § 4B1.2(a) and therefore could not be ...

Seventh Circuit: Sentencing Court’s ‘Inoculating Statement’ Regarding Potential Guidelines Miscalculation Failed to Satisfy Conditions of Abbas

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit remanded to the U.S. District Court for the Central District of Illinois for resentencing where that court’s inoculating statement regarding a potential Sentencing Guidelines miscalculation failed to satisfy the conditions enunciated in United States v. Abbas, 560 ...

Federal Habeas Corpus: Role of the Magistrate Judge

by Dale Chappell

District court judges in the federal courts have always had judicial assistants, in addition to law clerks, helping with their caseloads. Long before magistrate judges became what they are today, they were called “commissioners,” who were basically lawyers hired on an as-needed basis.

But in 1958, Congress ...

Michigan Supreme Court Announces Forfeited Structural Error Automatically Satisfies Third Prong of Plain Error Standard Without a Showing of Prejudice

by Douglas Ankney

The Supreme Court of Michigan announced that a forfeited structural error automatically satisfies the third prong of the plain error standard without a showing of prejudice and creates a rebuttable presumption that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

On the ...

Massachusetts Supreme Judicial Court Announces New Rule Governing Warrants for CSLI and Tower Dumps, Suppresses CSLI Evidence Because Warrant Lacked Particularized Facts Establishing Nexus Between Defendant’s Use of Cell Phone and Charged Crimes

by Anthony W. Accurso

The Supreme Judicial Court (“SJC”) of Massachusetts validated one warrant for cell site location information (“CSLI”) while finding a second deficient for failure to establish probable cause, and it issued prospective guidelines for CSLI warrants going forward.

Seven businesses around the Boston area were subject to ...

Fourth Circuit: Coram Nobis Appropriate Remedy to Achieve Justice Where Petitioner Actually Innocent but Completed Sentence

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that coram nobis relief is the appropriate remedy to achieve justice where the petitioner had completed service of the sentence imposed on conviction of offense for which he was actually innocent.

In November 2011, Brooks Prentice Lesane ...

DOJ: Unlawful Snitching Program Run by the Orange County, California, DA’s Office and Sheriff’s Department Compromised Unknown Number of Convictions

by Jo Ellen Nott

The U.S. Department of Justice (“DOJ”) issued a bombshell report on October 13, 2022, revealing that the Orange County District Attorney’s Office and the Orange County Sheriff’s Department “systematically violated criminal defendants’ Sixth Amendment right to counsel and Fourteenth Amendment right to due process of law” ...

Pennsylvania Supreme Court Announces Challenge to Presumptively Vindictive Sentence Constitutes ‘Legality Challenge’ and Thus Cognizable Under PCRA

by Harold Hempstead

The Supreme Court of Pennsylvania held that a vindictive sentencing claim pursuant to North Carolina v. Pearce, 395 U.S. 711 (1969), meets the definition of a legality challenge that is cognizable under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

In 2007, Mark Prinkey was ...

Ninth Circuit Clarifies Framework for Applying Minor-Role Adjustment in U.S. Sentencing Guideline § 3B1.2(b)

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit clarified the framework for application of the minor-role adjustment of U.S. Sentencing Guideline (“U.S.S.G.”) § 3B1.2(b).

A man identified as “Gordo” overheard Jesus Ezequiel Rodriguez complaining that employment was hard to find during the COVID-19 pandemic. Gordo offered ...

Washington Supreme Court Announces Race and Ethnicity Are Relevant Factors in Analysis of Whether Someone Has Been ‘Seized’

by Jacob Barrett

In a case of first impression in Washington, the Supreme Court of Washington clarified its seizure analysis by expressly holding that race and ethnicity are relevant factors in determining whether a person has been seized.

In April 2019, Pierce County Sheriff’s Deputy Mark Rickerson was on patrol ...

Wyoming Supreme Court: Preventing Door From Slamming in Face of Police Officer Does Not Constitute Implied Consent to Enter Home Without a Warrant

by Anthony W. Accurso

In a case of first impression, the Supreme Court of Wyoming held that the district court erred in ruling an officer had implied consent to enter a suspect’s home without a warrant because the totality of circumstances would not lead a reasonable officer to believe he ...

First Circuit Announces Courts May Consider First Step Act’s Non-Retroactive Changes to Sentencing Law in Determining Whether ‘Extraordinary and Compelling’ Reason Exists for Compassionate Release in Prisoner-Initiated Motion

by Jacob Barrett

In a case of first impression in the
circuit, the U.S. Court of Appeals for the First Circuit held that District Courts adjudicating a prisoner-initiated motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) are not bound by the Sentencing Commission’s current policy statement in U.S. Sentencing ...

Louisiana Supreme Court Announces Conviction of Lesser Included Offense Subsequently Vacated as Unconstitutional Constitutes Implied Acquittal of Higher Charge; Double Jeopardy Bars Retrial on Higher Charge

by Jacob Barrett

In a case of first impression, the Supreme Court of Louisiana held double jeopardy bars the reinstatement and retrial of a defendant on a higher charge when he has been lawfully convicted of a lesser included offense, even though the conviction was later vacated, and further held ...

Seventh Circuit Announces Adoption of Uniform Procedure to Be Followed Where Plea Agreement Includes an ‘Appeal Waiver’ and Defendant Files Notice of Appeal

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit clarified its uniform procedure for disposition of cases in which a plea agreement includes an appeal waiver and the defendant nevertheless files a notice of appeal.

Dinish Watson pleaded guilty to federal charges pursuant to the terms of ...

Rhode Island Supreme Court: DUI Suspect Was in ‘Custody’ so Un-Mirandized Roadside Statements Properly Suppressed

by Mark Wilson

The Supreme Court of Rhode Island upheld a lower court’s suppression of un-Mirandized statements made to police, finding that the defendant was in custody at the scene of an automobile collision.

On October 23, 2018, Joseph Corcoran’s vehicle struck a light pole on a Rhode Island ...

Social Media Surveillance

by Jayson Hawkins

Big Brother is still watching. Amid a growing chorus of troubling reports about the extraordinarily effective efforts of the police state in China to spy on its citizens’ online activity, evidence continues to accumulate showing that police excel at snooping around social media in America, too. In ...

Pennsylvania Supreme Court Announces Challenge to SORNA-Based Illegality of Sentence Claim Cannot Be Waived, Allowing for Challenge at Any Time — Even if First Raised on Appeal

by Anthony W. Accurso

The Supreme Court of Pennsylvania held that challenges to the legality of an imposed sentence — including registration requirements under SORNA — cannot be waived and can thus be brought at any time.

For various sexually-related offenses, Shaune Jarel Thorne, Sr. was sentenced on April 9, ...

IRS Continues Practice of Government Agencies Hiding Their Abuse of Civil Forfeiture Procedures

by Douglas Ankney

During the 13-year period from 2001 to 2014, Lyndon McLellan worked hard, expanding his small, roadside convenience store to include a restaurant and lunch counter. He’d managed to save a little over $107,000. But in less than 13 seconds, the IRS took all of McLellan’s savings — ...

Institutional Resistance to Police Reform Continues

by Jayson Hawkins

Public scrutiny of police behavior in recent years has mostly failed to bring about substantive change in the way police operate in America. Many causes have been put forward to explain the institutional resistance to change, from racism to police intransigence. A recent paper by Max M. ...

Next Gen Facial Recognition Identifies Your Associates, Too

by Anthony W. Accurso

A company called Ventra in February 2022 presented its new facial recognition software that rapidly searches voluminous video footage for a face and then identifies the faces of other people who came in contact with the target.

The relevant portion of the presentation to surveillance research ...

Illinois Law Protects Personal Data

by Jayson Hawkins

A new Illinois statute is the first in the nation to require police to have a search warrant or the owner’s permission before accessing their data on a personal device. The Protecting Household Privacy Act, which went into effect on January 1, 2022, is intended to establish ...

Study Examines Link Between Fines and Crime

by Jayson Hawkins

A new study published in the American Sociological Review (“ASR”) challenges the efficacy and rationale of the growing body of fees and fines being imposed for minor offenses in courts across the U.S. The study asserts that these fines have no deterrent value and simply punish, or ...

New York Follows California’s Lead Becoming Second State To Require Microstamping of Semiautomatic Handguns

by Douglas Ankney

On June 6, 2022, Governor Kathy Hochul signed legislation that made New York the second state to require microstamping of semiautomatic pistols. It took ten years from its proposal to be enacted, but the new law requires semiautomatic pistols manufactured and sold in the state to be ...

Location Tracking Devices Can Create the Appearance of Guilt

by Benjamin Tschirhart

In a recent review of new location tracking tech, New York Times writer Kashmir Hill tested several tools with the help of her husband Trevor Timm, who is also executive director of the Freedom of the Press Foundation.

They concluded that these tools are easy to use ...

The Sixth Amendment Right to Assistance of Legal Counsel: An Examination of Federal Justice System Outcomes

by Casey J. Bastian

Among an individual’s rights enshrined in the U.S Constitution is their Sixth Amendment right to assistance of legal counsel. The principle ensures an accused person in America is able to defend against a criminal prosecution. This right has been expanded by the Supreme Court of the ...

Drone Company Is Establishing Cozy Relationship With Police

by Anthony W. Accurso

The revolving door between government agencies and private corporations has been well documented in industries like healthcare, defense, and fossil fuels, along with the democracy-eroding effects of such relationships. A worrying new trend shows surveillance companies and law enforcement agencies establishing such relationships.

While Amazon recently ...

The Insidious Nexus Between Law Enforcement Budget Increases and Misdemeanor Policing

by Casey J. Bastian

The murder of George Floyd in 2020 resulted in massive Black Lives Matter protests and vigorous calls to defund the police. Politicians across the country seemed to respond to those demands. Budgets were slashed, and cities reduced policing while implementing community-based alternatives. It appears the heat ...

Corporate Data Brokers Help Law Enforcement Spy on Millions of Law-Abiding People

by Anthony W. Accurso

The shady economy of data brokers vacuums up personal data from hundreds of millions of people — mostly in the U.S. but also in other countries­ — and this data is sold to anyone willing to pay for it, including law enforcement, intelligence agencies, and the ...

That Robotaxi Is Watching You

by Anthony W. Accurso

Police are tapping into a new source for their insatiable desire to collect video footage of innocent citizens — autonomous vehicles.

Cops don’t like being filmed. Despite citizens having a right to capture officers on camera during the performance of their official duties in public, some ...

$175,000 Awarded to Colorado Man Tased by Cop Angered Over His ‘Fuck Bad Cops’ Placard

by Douglas Ankney

Commerce City, Colorado, paid $175,000 to settle a suit alleging police officer Chris Dickey tased Joshua Condiotti-Wade because Dickey was angered by Condiotti-Wade’s placards that read “Fuck Bad Cops” and “Blue Lives Murder.”

Dickey’s bodycam showed him approaching Condiotti-Wade and another man holding the placards while protesting ...

Predictive Policing Doesn’t Reduce Crime but Does Increase Targeting of Vulnerable Communities

by Casey J. Bastian

Our society is increasingly reliant on data and technology in nearly every sector, both public and private. Law enforcement and public safety institutions are regular consumers of data offerings. Tech companies like Accenture, Microsoft, Oracle, HunchLab, ShotSpotter, and PredPol are maximizing financial opportunities by “improving” policing. ...

Prosecutorial Misconduct Cause of More Than 550 Death Penalty Reversals and Exonerations

by Jacob Barrett

A study by the Death Penalty Information Center (“DPIC”) found more than 550 death penalty reversals and exonerations were the result of extensive prosecutorial misconduct. DPIC reviewed and identified cases since the U.S. Supreme Court overturned existing death penalty laws in 1972. That amounted to over 5.6% ...

Michigan Makes Civil Forfeiture Easier at Airports

by Jayson Hawkins

Civil forfeiture, the government confiscation of cash or assets believed to be related to criminal activity, has been a favorite tool of police since the early days of the war on drugs. The process requires a low burden of proof, the money goes directly to police budgets, ...

News in Brief

Alabama: Court documents revealed the week of Oct. 3, 2022, show that a former Brookside police chief, Mike Jones, was indicted by a grand jury for speeding and impersonating an officer. AL.com reported that Jones had resigned from his post as the town’s Chief of Police on Jan. 25, ...

New FBI Tip Line: Further Incentive to Abuse Civil Asset Forfeiture

by Casey J. Bastian

A recent ad campaign in Charlotte, North Carolina, asks viewers to “Shine a light on drug trafficking.” A new tip line was introduced, purportedly intended to help agents intercept massive drug shipments coming into the Charlotte metro area. People are incentivized to call through promises of ...

 

 

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