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Criminal Legal News: August, 2022

Issue PDF
Volume 5, Number 8

In this issue:

  1. Drug Detection Dogs Are Unreliable and Reflect the Vicious Heritage of Their Slave-Hunting Dog and Police-Dog Predecessors (p 1)
  2. Texas Court of Criminal Appeals Clarifies Prejudice Standard for IAC Based on Faulty Probation Eligibility Advice Is an Effect on Defendant’s Decision Making, Not Different Outcome (p 10)
  3. Everybody’s Guilty: To the Police State, We’re All Criminals Until We Prove Otherwise (p 12)
  4. Prosecutorial Extortion: Alleged Drug Dealer Agrees to $300,000 Seizure in Face of Charges Threatened Against Entire Family (p 15)
  5. Colorado Supreme Court Announces ‘Reasonable Likelihood’ Framework for Determining Whether Trial Court’s Comments to Prospective Jurors Lowered Prosecution’s Burden of Proof (p 16)
  6. Iowa Supreme Court: Warrantless Entry Into Home for Misdemeanor Arrest Violates Both U.S. and Iowa Constitutions and Requires Suppression of Evidence (p 18)
  7. Seventh Circuit Vacates Sentence Because Government Failed to Meet Its Burden to Support Uncharged Drug Quantity Under Rule 32 (p 20)
  8. Police Often Use ‘Cover Charges’ to Mask False Arrests and Police Brutality (p 22)
  9. Eighth Circuit: Government Breached Plea Agreement by Relying on Pre-Plea Conduct to Dispute Acceptance of Responsibility Despite Acknowledging Defendant Qualified for Credit in Agreement (p 24)
  10. California Supreme Court Announces Uncharged Lesser Firearm Enhancement May Be Substituted Under § 12022.53 (p 25)
  11. California Court of Appeal: Gang Enhancements Remanded for Retrial Under AB 333; Sameness Requirement Satisfied (p 26)
  12. Maryland Court of Appeals: Kazadi Applies to Cases Where Issue Was Preserved at Trial but Appeal Not Yet Noted at Time Kazadi Decided (p 27)
  13. Third Circuit Suppresses Evidence Found After Police Created Safety Concern to Justify Prolonging Traffic Stop (p 28)
  14. Fifth Circuit: District Court Miscalculated Sentencing Guidelines Range by Implausibly Finding Defendant Would Use All Cash Proceeds of Drug Sales Seized to Purchase More Meth to Resell (p 30)
  15. California Supreme Court Announces Conspiracy to Commit Home Invasion Robbery Not Subject to Enhancement to Indeterminate Life Sentence Under Penal Code § 186.22(b)(4) (p 30)
  16. Commentary: Exploring Implications of the Supreme Court’s Expansion of Second Amendment Rights (p 32)
  17. Third Circuit: District Court’s Focus on Substance of Defendant’s Meritless Arguments in Denying Request to Represent Himself Resulted in Inadequate Inquiry Prior to Denial in Violation of Sixth Amendment (p 34)
  18. Fourth Circuit: South Carolina Marijuana Law Not a Categorical Match to Federal Law for ACCA Sentencing (p 35)
  19. Hawai’i Supreme Court Holds Randomness and Violent Nature of Crime Alone Insufficient to Establish Exigent Circumstances for Warrantless Entry Into Suspect’s Home (p 36)
  20. Tenth Circuit: Guilty Plea Not Knowing and Voluntary Because Sentencing Court Failed to Ask Follow Up Questions After Defendant Said He’s Off His Medication and ‘Mind Isn’t Right’ (p 37)
  21. Sixth Circuit: COA Not Required to Appeal Order Denying Rule 4(a)(5) Motion for Extension of Time to File Notice of Appeal (p 38)
  22. Pennsylvania Supreme Court Clarifies Ex Post Facto Analysis Focuses on When, Not Where, Crime Occurred and Does Not Require Showing of Disadvantage to Defendant (p 40)
  23. The War in Ukraine Raises Awareness About Secure Communications During a Crisis (p 41)
  24. Inflation Transforming Petty Offenses Into Felonies (p 41)
  25. Ohio Justice Calls for Plea Bargaining Reform to End ‘Sentencing by Ambush’ (p 42)
  26. Your Data Is For Sale and Anonymization Is Meaningless (p 43)
  27. Michigan Supreme Court Announces Punishment for Second-Degree Murder and Involuntary Manslaughter When Based on Same Conduct Violates Prohibition Against Double Jeopardy (p 44)
  28. NYPD Continues Its Longstanding Tradition of Thwarting Misconduct Investigations and Evading Accountability (p 44)
  29. FBI’s ‘Rich Neighborhood’ Breach Practice (p 45)
  30. Nebraska Company Providing Digital Wiretaps of Messaging Platforms to Law Enforcement Agencies (p 45)
  31. Quattrone Center Reveals Lack of Transparency Concerning Prosecutorial Misconduct Claims Report identifies over 7,000 instances of state attorney conduct that ‘did not comport’ with ethical, procedural, or legal rules (p 46)
  32. Chicago PD Emphasizing Facial Recognition for Investigations (p 47)
  33. Illinois Limits Police Access to Data Stored by Third Parties (p 48)
  34. Border Patrol Agents Track and Spy on U.S. Journalists and Unidentified Members of Congress (p 48)
  35. ‘Freedom Commons Academy’ Provides Former Prisoners Housing and Structured Re-entry Services in Syracuse (p 49)
  36. Maine’s Law Enforcement Agencies, Like Those of Most States, Don’t Track Complaints Against Police Officers (p 49)
  37. Prosecutor’s Sentencing Message to Defendant: Insist on Trial, Pay with Your Liberty (p 50)
  38. News in Brief (p 50)

Drug Detection Dogs Are Unreliable and Reflect the Vicious Heritage of Their Slave-Hunting Dog and Police-Dog Predecessors

by Matt Clarke
LAW ENFORCEMENT OFFICIALS OFTEN deploy trained dogs to detect drugs, but how accurate are the canine sniffs? Since the dog cannot testify, the courts have simply accepted that a certified drug dog is sufficient to provide probable cause for a search when the dog alerts its handlers, ...

Texas Court of Criminal Appeals Clarifies Prejudice Standard for IAC Based on Faulty Probation Eligibility Advice Is an Effect on Defendant’s Decision Making, Not Different Outcome

by Mark Wilson

The Court of Criminal Appeals of Texas clarified the correct ineffective assistance of counsel (“IAC”) standard in cases of erroneous probation eligibility advice. It is not necessary to show a different outcome, only that the erroneous advice impacted the defendant’s decision-making, the Court instructed.

Timothy Aaron Swinney ...

Everybody’s Guilty: To the Police State, We’re All Criminals Until We Prove Otherwise

by John W. Whitehead & Nisha Whitehead

“In a closed society where everybody’s guilty, the only crime is getting caught.”

—Hunter S. Thompson

The burden of proof has been reversed.

No longer are we presumed innocent. Now we’re presumed guilty unless we can prove our innocence beyond a reasonable ...

Prosecutorial Extortion: Alleged Drug Dealer Agrees to $300,000 Seizure in Face of Charges Threatened Against Entire Family

by David M. Reutter

When civil asset forfeiture laws were made applicable to criminal defendants, the purpose was to ensure criminals lost the illicit gains from their criminal activities after conviction. A case in Kentucky shows how prosecutors can use their unbridled charging discretion to force defendants to agree to ...

Colorado Supreme Court Announces ‘Reasonable Likelihood’ Framework for Determining Whether Trial Court’s Comments to Prospective Jurors Lowered Prosecution’s Burden of Proof

by Douglas Ankney

In companion cases, the Supreme Court of Colorado adopted the functional “reasonable likelihood” framework for determining whether a trial court’s comments to prospective jurors lowered the prosecution’s burden of proof.

During jury voir dire at Ernest Joseph Tibbels trial on charges that included possession of contraband, the ...

Iowa Supreme Court: Warrantless Entry Into Home for Misdemeanor Arrest Violates Both U.S. and Iowa Constitutions and Requires Suppression of Evidence

by Mark Wilson 

The Supreme Court of Iowa held that the warrantless entry of an apartment to arrest the occupant on a misdemeanor charge was unlawful, requiring suppression of evidence of cocaine possession obtained from the unlawful entry.

Ames, Iowa, police officer Jamie Miller was dispatched to a fourplex apartment ...

Seventh Circuit Vacates Sentence Because Government Failed to Meet Its Burden to Support Uncharged Drug Quantity Under Rule 32

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit admonished that “sentencing proceedings are not a free-for-all” and vacated Edward Gibbs’ sentence where the requirements of Federal Rule of Criminal Procedure 32 (“Rule 32”) were not followed when determining the amount of methamphetamine (“meth”) attributable to Gibbs ...

Police Often Use ‘Cover Charges’ to Mask False Arrests and Police Brutality

by Casey J. Bastian

Across America, “cover charges” are frequently alleged against citizens during encounters with police—especially when it’s a questionable “use of force” situation. Experts have identified a typical pattern involving this abusive tactic. A police officer will use excessive force, unnecessarily injure that person, and then create a ...

Eighth Circuit: Government Breached Plea Agreement by Relying on Pre-Plea Conduct to Dispute Acceptance of Responsibility Despite Acknowledging Defendant Qualified for Credit in Agreement

by Richard Resch

The U.S. Court of Appeals for the Eighth Circuit held the Government breached its plea agreement with the defendant by advocating against an agreed-upon reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

Tommy Collins pleaded guilty on February 7, 2020, to sex trafficking of children. For ...

California Supreme Court Announces Uncharged Lesser Firearm Enhancement May Be Substituted Under § 12022.53

by Mark Wilson

The Supreme Court of California held that sentencing courts have the authority to strike a firearm enhancement and substitute a lesser uncharged statutory enhancement.

California Penal Code § 12022.53, the state’s  “Use a Gun & You’re Done”  law, establishes a tiered system of sentencing enhancements for certain ...

California Court of Appeal: Gang Enhancements Remanded for Retrial Under AB 333; Sameness Requirement Satisfied

The court of appeal of California, Fifth Appelate District, struck gang and firearm enhancements based upon the retroactive application of Assembly Bill 333 (2021–2022 Reg. Sess.)(“AB333”). The Court also concluded that retrial of the enhancements on remand would not violate double jeopardy prohibitions because the “sameness requirement” was satisfied by ...

Maryland Court of Appeals: Kazadi Applies to Cases Where Issue Was Preserved at Trial but Appeal Not Yet Noted at Time Kazadi Decided

by Douglas Ankney

The Court of Appeals of Maryland (“MCOA”) held that its holding in Kazadi v. State, 223 A.3d 554 (Md. 2020) applies to cases where a defendant had not yet noted an appeal when Kazadi was issued but had preserved a Kazadi issue at trial.

In Kazadi ...

Third Circuit Suppresses Evidence Found After Police Created Safety Concern to Justify Prolonging Traffic Stop

by Anthony W. Accurso

The U.S. Court of Appeals for the Third Circuit held that prolonging a traffic stop, even for a short period of time, to ensure an officer’s safety is unreasonable where the officer himself created the safety risk through his actions.

Around 2:00 a.m. in the early ...

Fifth Circuit: District Court Miscalculated Sentencing Guidelines Range by Implausibly Finding Defendant Would Use All Cash Proceeds of Drug Sales Seized to Purchase More Meth to Resell

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit held that the U.S. District Court for the Western District of Texas erred in its drug quantity attribution by implausibly finding that Zaira Valenzuela Lujan would have used all of the $10,694 seized from her to purchase additional ...

California Supreme Court Announces Conspiracy to Commit Home Invasion Robbery Not Subject to Enhancement to Indeterminate Life Sentence Under Penal Code § 186.22(b)(4)

by Matt Clarke

The Supreme Court of California held that conspiracy to commit home invasion robbery is not subject to enhancement to an indeterminate life sentence under California Penal Code § 186.22(b)(4).

Police investigating the Norteño criminal street gang had wire taps and live surveillance in place as Pedro Lopez ...

Commentary: Exploring Implications of the Supreme Court’s Expansion of Second Amendment Rights

by Douglas A. Berman

This content was originally published on sentencing.typepad.com, as three distinct blog postings on June 23 and 24, 2022, and included several embedded hyperlinks to research referenced. The posts have been combined and reprinted here with permission.

 

On June 23, The Supreme Court handed down ...

Third Circuit: District Court’s Focus on Substance of Defendant’s Meritless Arguments in Denying Request to Represent Himself Resulted in Inadequate Inquiry Prior to Denial in Violation of Sixth Amendment

by Matt Clarke

The U.S. Court of Appeals for the Third Circuit held that U.S. District Court for the Western District of Pennsylvania erred when it denied a federal criminal defendant’s request to represent himself without first conducting an adequate inquiry.

Donte Taylor was serving parole after having been ...

Fourth Circuit: South Carolina Marijuana Law Not a Categorical Match to Federal Law for ACCA Sentencing

by David M. Reutter

The U.S. Court of Appeals for the Fourth Circuit held that a defendant’s convictions under South Carolina law for possession of marijuana with intent to distribute in proximity to a school are not a categorical match under the Armed Career Criminal Act (“ACCA”) because the state’s ...

Hawai’i Supreme Court Holds Randomness and Violent Nature of Crime Alone Insufficient to Establish Exigent Circumstances for Warrantless Entry Into Suspect’s Home

by Anthony W. Accurso

The Supreme Court of Hawai’i ruled that the apparent randomness and violent nature of the offense for which a suspect was being investigated is insufficient to justify the warrantless entry of his home under the exigent circumstances exception, even though there was probable cause to arrest ...

Tenth Circuit: Guilty Plea Not Knowing and Voluntary Because Sentencing Court Failed to Ask Follow Up Questions After Defendant Said He’s Off His Medication and ‘Mind Isn’t Right’

by David M. Reutter

The U.S. Court of Appeals for the Tenth Circuit vacated a defendant’s guilty plea after finding the U.S. District Court for the Northern District of Oklahoma failed to ensure that his plea was knowingly and voluntarily made.

John Michael McIntosh pleaded guilty to five counts of ...

Sixth Circuit: COA Not Required to Appeal Order Denying Rule 4(a)(5) Motion for Extension of Time to File Notice of Appeal

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that a Certificate of Appealability (“COA”) is not required when appealing a district court’s order denying a motion for an extension of time to file a notice of appeal brought pursuant to Federal Rule of Appellate Procedure ...

Pennsylvania Supreme Court Clarifies Ex Post Facto Analysis Focuses on When, Not Where, Crime Occurred and Does Not Require Showing of Disadvantage to Defendant

by Douglas Ankney

The Supreme Court of Pennsylvania held that the state’s sex-offender registry law constitutes punishment when imposed retroactively to sex offenders who committed their offenses prior to the law’s enactment and whose triggering offenses occurred in another state and thus amounts to an unconstitutional ex post facto law. ...

The War in Ukraine Raises Awareness About Secure Communications During a Crisis

by Anthony W. Accurso

While many people in the U.S. see their government as nosy, but largely benign when compared to oppressive regimes such as North Korea or Iran, the people of Ukraine and Russia are learning hard lessons about the importance of secure messaging, especially when it concerns the ...

Inflation Transforming Petty Offenses Into Felonies

by Douglas Ankney

In the recent collective memory of Americans, $200 purchased almost 100 gallons of gasoline. Today, fewer than 50 gallons of gas can be purchased with that same $200. Two years ago, theft of that 50 gallons of gas in New Jersey was a misdemeanor. Today, that same ...

Ohio Justice Calls for Plea Bargaining Reform to End ‘Sentencing by Ambush’

by David M. Reutter

In an article that appeared in the Akron Law Review, Ohio Supreme Court Justice Michael P. Donnelly detailed his experience, concerns, and solutions to create a fair playing field in the arena of plea bargaining. He called for an end to “sentencing by ambush” after ...

Your Data Is For Sale and Anonymization Is Meaningless

by Anthony W. Accurso

Data brokers exist to buy bulk user data collected by advertising tech companies and resell it to other companies, government agencies, and the public. They claim this practice is harmless since the data has been “anonymized”—meaning a user’s name has been replaced by a random advertising ...

Michigan Supreme Court Announces Punishment for Second-Degree Murder and Involuntary Manslaughter When Based on Same Conduct Violates Prohibition Against Double Jeopardy

by Anthony W. Accurso

The Supreme Court of Michigan ruled that the Legislature intended that no person be punished under both the state’s second-degree murder statute, MCL 750.317, and the involuntary manslaughter statute, MCL 750.329, when both convictions result from the death of a single person.

In the early morning ...

NYPD Continues Its Longstanding Tradition of Thwarting Misconduct Investigations and Evading Accountability

by Douglas Ankney

New York City’s Police Department (“NYPD”) has been described by journalists as being worse than the CIA and FBI when it comes to record requests. According to techdirt.com, the FBI and the CIA say the NYPD is worse than a rogue state when it comes to ...

FBI’s ‘Rich Neighborhood’ Breach Practice

by Jayson Hawkins

A judge hearing oral arguments in an insurance fraud appeal on April 7, 2022, stopped the proceedings when she discovered a “deeply troubling” item in the record: when serving a search warrant in a rich Washington, D.C. neighborhood, the FBI decided not to break down the front ...

Nebraska Company Providing Digital Wiretaps of Messaging Platforms to Law Enforcement Agencies

by Anthony W. Accurso

PenLink, a Nebraska company, is filling the void in the U.S. of private companies that help law enforcement agencies—mostly federal, but some local as well—accomplish the digital equivalent of wiretapping communications that occur over social media messaging services.

The company got its start in 1987 by ...

Quattrone Center Reveals Lack of Transparency Concerning Prosecutorial Misconduct Claims Report identifies over 7,000 instances of state attorney conduct that ‘did not comport’ with ethical, procedural, or legal rules

by Casey J. Bastian

Prosecutors are charged with the solemn duty to ensure our criminal justice systems function in an impartial, fair, and faithful manner. To that end, prosecutors are afforded broad discretionary powers concerning the implementation of their sacred duties: who to charge and with what crimes, requesting ...

Chicago PD Emphasizing Facial Recognition for Investigations

by Anthony W. Accurso

A report from Business Insider made public an internal Chicago Police Department (“CPD”) presentation that emphasizes the increasing use of facial recognition to identify suspects in investigations.

Law enforcement agencies have been making a lot of noise about end-to-end encryption (“E2EE”) of private messaging applications, all ...

Illinois Limits Police Access to Data Stored by Third Parties

by Anthony W. Accurso

Illinois recently passed the Protecting Household Privacy Act (“PHPA”), which limits state law enforcement access to data stored by third parties, i.e., companies like Google and Facebook, requiring warrants in most circumstances, and establishing disclosure and retention limitations.

Both the Fourth Amendment to the U.S. Constitution ...

Border Patrol Agents Track and Spy on U.S. Journalists and Unidentified Members of Congress

by Douglas Ankney

The Associated Press (“AP”) confirmed a Yahoo News report revealing that in 2017, Department of Homeland Security’s (“DHS”) Customs and Border Patrol (“CBP”) unit identified as the Counter Network Division used government databases designed for tracking terrorists to investigate as many as 20 U.S.-based journalists, congressional staffers, ...

‘Freedom Commons Academy’ Provides Former Prisoners Housing and Structured Re-entry Services in Syracuse

by Casey J. Bastian

Phyllis Riles’ daily life is the embodiment of her favorite Gandhi quote: “Where there’s love, there’s life.” Such a belief is the place from which her life’s work at the Freedom Commons Academy (“FCA”) springs forth. The housing development is for those recently released from incarceration ...

Maine’s Law Enforcement Agencies, Like Those of Most States, Don’t Track Complaints Against Police Officers

by Douglas Ankney

The WMTW 8 Investigates Team partnered with the Maine Freedom of Information Coalition to review hundreds of documents and other data obtained from 135 Maine law enforcement agencies (“Agencies”). The Agencies were asked to provide the number of citizen complaints against officers and the details on any ...

Prosecutor’s Sentencing Message to Defendant: Insist on Trial, Pay with Your Liberty

by David M. Reutter

For persons inexperienced with the criminal justice system, it seems incomprehensible that an innocent person would plead guilty. The threat of a trial penalty, however, pushes many innocents to do just that. The cases of Pamela Moses and Levonta Barker illustrate how prosecutors abuse their discretion ...

News in Brief

California: The Daily News reported that two former police officers from Fullerton and Anaheim were indicted on counts of kidnapping while working illegally as bounty hunters. The former officers were Rodger Corbett, 49, formerly of the Fullerton PD and Kevin Pedersen, 34, formerly of the Anaheim PD. The two were ...

 

 

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