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Criminal Legal News: February, 2024

Issue PDF
Volume 7, Number 2

In this issue:

  1. Geofence Warrants: The Mass Location Surveillance and Privacy Threat Created by Google May Be Eliminated by Its Creator (p 1)
  2. Minnesota Supreme Court Announces Odor of Marijuana Alone Emanating From Vehicle Insufficient for Probable Cause to Search Under Automobile Exception (p 13)
  3. Michigan Supreme Court: Defendant’s Statements Involuntary and Inadmissible (p 14)
  4. Tales From the ‘Tails’ of Bloodstains (p 15)
  5. New Jersey Supreme Court Excludes CSLI Testimony Based on Agent’s ‘Rule Of Thumb’ Method for Determining Defendant’s Location (p 16)
  6. New Night-Vision Capable Drone Marketed to Police (p 17)
  7. Missouri Supreme Court Orders Dismissal of Pending Charges Where Trial Court Failed to Bring Prisoner to Trial Within 180-Day Limitations Period Provided for in ‘Interstate Agreement on Detainers’ (p 18)
  8. Third Circuit: Defendant Not on Rental Agreement Had Reasonable Expectation of Privacy in Car Because He Had Dominion and Control of Car Where Renter Gave Keys to Him, He Was in Possession of Them Upon Arrest, and Car Parked Nearby (p 20)
  9. NYPD Has Spent Millions of Dollars on Social Media Analysis Tools (p 21)
  10. New York Court of Appeals: Forensic Findings Establishing Possible Alternative Cause of Injuries in Sex-Crime Prosecution Admissible Under ‘Interest of Justice’ Exception to Rape Shield Law (p 22)
  11. The Diminishment of Miranda Is Leading to False Confessions and Conviction of Innocents (p 24)
  12. Fifth Circuit Announces Revocation Judgments for Violation of Supervised Release Vacated Because Underlying Sentence Vacated (p 26)
  13. FBI Works to Expand Court Authority for Its Offensive Cyber Operations (p 26)
  14. Third Circuit: Defense Counsel Ineffective Under Strickland Where Counsel Sat Silent After Judge Threatened to Charge Witness With Perjury Unless Testimony Changed (p 28)
  15. Study Raises Alarms About Inaccuracies and Bias in Gun Forensics Reporting (p 29)
  16. Ninth Circuit Announces District Courts Must Either Orally Pronounce All Discretionary ‘Standard’ Conditions of Supervised Release in the Presence of Defendant or Provide Conditions in Writing Prior to Sentencing (p 30)
  17. The Problem with Some Non-Carceral Punishments (p 31)
  18. Federal Habeas Corpus: The Savings Clause Remedy for Federal Prisoners (p 32)
  19. Researchers Find Fiber Evidence Lasts Longer Underwater Than Previously Thought (p 33)
  20. Who Let the Dogs Out? Robotic Dogs Are the Newest (and Scariest) Surveillance Tech in U.S. Police Departments (p 34)
  21. After Ohio Becomes 24th State to Legalize Recreational Marijuana, What Next? (p 35)
  22. DHS Allows CBP and ICE Officers to Create Fake Social Media Profiles to Track Subjects of Interest and Conduct Investigations (p 35)
  23. Fourth Circuit: Walking Past Unoccupied Home With Bulging Pocket and Attempting to Evade Neighborhood Tipster Insufficient for Reasonable Suspicion to Seize and Search (p 36)
  24. DEA’s Domestic Surveillance Mission Creep: Beyond Drugs, Beyond Protests (p 37)
  25. Harris County, Texas, Settles Civil Rights Case for $1.5 Million Brought by Innocent Man Shot in His Home Five Times by Trigger-Happy Deputy (p 37)
  26. New Mexico Supreme Court Announces Marquez’s Holding That ‘Crime of Shooting at or From Motor Vehicle Cannot Be Predicate Felony Supporting Charge of Felony Murder’ Is New Substantive Rule and Applies Retroactively (p 38)
  27. The Potential Privacy Threat of Generative AI (p 39)
  28. Pennsylvania Supreme Court: Testimonial References to Post-Arrest Silence Cannot Be Used Against Defendant at Trial, Pre-Arrest Harmless Error Analysis Does Not Apply (p 40)
  29. Evidence Shows When Researchers Work Alongside Cops in the Field, De-escalation Training Is Implemented and Effective (p 40)
  30. Data Mining: Law Enforcement Pays Cash for Your Private Data and Saves on the Hassle of Complying With the Fourth Amendment (p 41)
  31. Sixth Circuit Announces Due Process Right to ‘Prompt’ Post-Seizure Hearing While Government Deciding Whether to Initiate Forfeiture Proceedings and Holds Wayne County’s Vehicle Forfeiture Program Violates Due Process (p 43)
  32. Idaho Supreme Court Announces Adoption of ‘Primary Purpose’ Standard for Reviewing Police Decision to Impound Vehicles and Conduct Inventory Search to Prevent Pretextual Searches in Violation of Fourth Amendment (p 44)
  33. Steady Improvement in Techniques for the Analysis of Degraded DNA (p 45)
  34. Indiana Supreme Court Announces Civil Forfeiture Triggers Right to Jury Trial (p 46)
  35. Study Finds Public Defenders’ Heavy Workloads Prevent Effective Representation, Amendments to 50-Year-Old Guidelines Recommended (p 47)
  36. Kentucky Supreme Court: Trial Court Abused Discretion by ‘Rehabilitating’ Juror Who Indicated Could Not Be Impartial and Failing to Strike Juror (p 48)
  37. Identification Via DNA, Fingerprints, and 3D Scanning of Footwear (p 49)
  38. Vendors Late to Recognize the Serious Threat of Cell-Site Simulators (p 49)
  39. Car Culture Dramatically Increases Number of Cop Confrontations (p 50)
  40. News in Brief (p 50)

Geofence Warrants: The Mass Location Surveillance and Privacy Threat Created by Google May Be Eliminated by Its Creator

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 ...

Minnesota Supreme Court Announces Odor of Marijuana Alone Emanating From Vehicle Insufficient for Probable Cause to Search Under Automobile Exception

by Anthony W. Accurso 

The Supreme Court of Minnesota ruled that the standard for probable cause to conduct a warrantless search of a vehicle requires more than the mere odor of marijuana.

Adam Lloyd Torgerson was stopped by Litchfield Police on the evening of July 5, 2021, because his “vehicle’s ...

Michigan Supreme Court: Defendant’s Statements Involuntary and Inadmissible

by Douglas Ankney

The Supreme Court of Michigan held that Joshua Lamar-James Stewart’s age and his health, along with the timing of the police interrogation and the officers’ tactics that included promises of leniency, racial slurs, a combative tone, and misrepresentation of the evidence against Stewart rendered his statements involuntary ...

Tales From the ‘Tails’ of Bloodstains

by Douglas Ankney

Protrusions that deviate from the boundaries of otherwise elliptical bloodstains—known as “tails”—may provide additional relevant crime-scene evidence, according to James Bird, scientist and co-author of a study appearing in the journal Physics of Fluids.

A group of scientists from Boston University and University of Utah demonstrated that ...

New Jersey Supreme Court Excludes CSLI Testimony Based on Agent’s ‘Rule Of Thumb’ Method for Determining Defendant’s Location

by Anthony W. Accurso

The Supreme Court of New Jersey held a lower court erred when it allowed an FBI agent to testify about cell site location information (“CSLI”) regarding defendant’s alleged location during the timeframe the charged offense occurred based on the agent’s personal “rule of thumb” approximation of ...

New Night-Vision Capable Drone Marketed to Police

by Anthony W. Accurso

Skydio, a popular drone manufacturer, released the new X10, whose main selling point is an infrared camera, which allows it to track people and fly autonomously in the dark.

The company began making hobby drones about a decade ago, selling them to athletes who wanted something ...

Missouri Supreme Court Orders Dismissal of Pending Charges Where Trial Court Failed to Bring Prisoner to Trial Within 180-Day Limitations Period Provided for in ‘Interstate Agreement on Detainers’

by Douglas Ankney

The Supreme Court of Missouri made permanent its grant of a temporary writ of prohibition and ordered dismissal of the charges pending against Steven Wishom after the Jefferson Circuit Court failed to bring Wishom to trial on those charges within the 180-day limitations period of the Interstate ...

Third Circuit: Defendant Not on Rental Agreement Had Reasonable Expectation of Privacy in Car Because He Had Dominion and Control of Car Where Renter Gave Keys to Him, He Was in Possession of Them Upon Arrest, and Car Parked Nearby

by Anthony W. Accurso

The U.S. Court of Appeals for the Third Circuit held that a defendant who possessed the keys to a rental car that was rented by his girlfriend (who gave permission to him to possess the keys and operate the car) had a reasonable expectation of privacy ...

NYPD Has Spent Millions of Dollars on Social Media Analysis Tools

by Jo Ellen Nott

The New York City Police Department (“NYPD”) has spent millions of dollars of taxpayers’ money buying products from tech company Voyager Labs that claims it can analyze social media to track and even predict crimes. The NYPD’s 2018 contract with Voyager Labs, worth nearly $9 million, ...

New York Court of Appeals: Forensic Findings Establishing Possible Alternative Cause of Injuries in Sex-Crime Prosecution Admissible Under ‘Interest of Justice’ Exception to Rape Shield Law

by David M. Reutter

The New York Court of Appeals held a trial court erroneously applied New York’s Rape Shield Law to exclude forensic evidence proffered by the defendant to demonstrate that someone else caused the complainant’s injuries.

Sergio Cerda, who was 60 at the relevant time, was charged with ...

The Diminishment of Miranda Is Leading to False Confessions and Conviction of Innocents

by David M. Reutter

False confessions are a problem as old as policing. The Supreme Court of the United States (“SCOTUS”) promulgated rules in 1966 with its holding in Miranda v. Arizona, 384 U.S. 436 (1966), that were designed to create a coercion-free interrogation room. SCOTUS rulings over the last ...

Fifth Circuit Announces Revocation Judgments for Violation of Supervised Release Vacated Because Underlying Sentence Vacated

by Anthony W. Accurso

The U.S. Court of Appeals for the Fifth Circuit held that a defendant’s revocation sentences were nullified after the underlying sentence of which they were a part was vacated.

Eddie Lipscomb was convicted in 2008 of being a felon in possession of a firearm under 18 ...

FBI Works to Expand Court Authority for Its Offensive Cyber Operations

by Anthony W. Accurso

The FBI’s effort to disable an army of zombie computers being used for cyber-crime is pretty mediagenic, but it is the latest step in the DOJ’s plan to render jurisdictional limits on law enforcement power obsolete.

For the last two decades or so, the internet has ...

Third Circuit: Defense Counsel Ineffective Under Strickland Where Counsel Sat Silent After Judge Threatened to Charge Witness With Perjury Unless Testimony Changed

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit ruled that Ronald Rogers was denied effective assistance of counsel when his attorney sat silent after the trial judge admonished a prosecution witness that if he did not change his testimony to implicate Rogers, then the witness would ...

Study Raises Alarms About Inaccuracies and Bias in Gun Forensics Reporting

by Jo Ellen Nott

An October 2023 study from Iowa State University reveals a troubling trend among firearms experts reporting on cartridge-case comparisons. The authors of the study, Gary Wells and Andrew Smith, state that gun forensic examiners are improperly labeling mismatches as “inconclusive,” potentially concealing evidence that could convict ...

Ninth Circuit Announces District Courts Must Either Orally Pronounce All Discretionary ‘Standard’ Conditions of Supervised Release in the Presence of Defendant or Provide Conditions in Writing Prior to Sentencing

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit, sitting en banc, held that U.S. District Courts must either orally pronounce all discretionary conditions of supervised release, including those referred to as “standard” in U.S. Sentencing Guidelines (“U.S.S.G.”) § 5D1.3(c), in the presence of the defendant at sentencing ...

The Problem with Some Non-Carceral Punishments

by Carlos Difundo

By 2007, the incarceration rate in the U.S. had skyrocketed to about 767 per 100,000 people. That statistic leads the free world and compares unfavorably with Russia’s 450 to 600 per 100,000 people. Many people see the problem with incarcerating nearly 1% of the population at a ...

Federal Habeas Corpus: The Savings Clause Remedy for Federal Prisoners

by Dale Chappell

When the remedy under 28 U.S.C. § 2255 cannot be used to correct a major defect that arises later on in a federal prisoner’s case, most federal courts have recognized the use of the “savings clause” to fix the problem. § 2255(e). But in order to use this remedy, ...

Researchers Find Fiber Evidence Lasts Longer Underwater Than Previously Thought

by Jo Ellen Nott

People have long looked to bodies of water as safe places to dispose of and forever hide evidence of their crimes. They believed that by tossing murder weapons or victims into the depths of rivers, lakes, and oceans, they could escape punishment. However, advancements in forensic ...

Who Let the Dogs Out? Robotic Dogs Are the Newest (and Scariest) Surveillance Tech in U.S. Police Departments

by Jo Ellen Nott

After months of debate, the Los Angeles City Council approved the donation of a $280,000 robotic police dog in late May of 2023 in a rowdy public meeting that saw disruptive protestors ejected and banners displayed that read “No Robot Dogs.”

The Boston Dynamics robotic canine ...

After Ohio Becomes 24th State to Legalize Recreational Marijuana, What Next?

by Jordan Arizmendi

Back on November 7, Ohio voters supported Issue 2, which legalized the sale, purchase and possession of cannabis for Ohioans 21 and older. However, it appeared on the ballot as an initiated statute, which means state lawmakers have the final say on what the recreational marijuana law ...

DHS Allows CBP and ICE Officers to Create Fake Social Media Profiles to Track Subjects of Interest and Conduct Investigations

by Jo Ellen Nott

The Brennan Center for Justice, a civil rights non-profit law and public policy group, has learned that authorities in several Department of Homeland Security (“DHS”) law enforcement agencies are using fake accounts on social media platforms to conduct investigations. Civil rights groups and some legislators criticize ...

Fourth Circuit: Walking Past Unoccupied Home With Bulging Pocket and Attempting to Evade Neighborhood Tipster Insufficient for Reasonable Suspicion to Seize and Search

by Anthony W. Accurso

The U.S. Court of Appeals for the Fourth Circuit overruled the U.S. District Court for the Northern District of West Virginia’s denial of a defendant’s suppression motion, ruling that police lacked reasonable suspicion to detain him based on the tip that he was acting suspiciously and ...

DEA’s Domestic Surveillance Mission Creep: Beyond Drugs, Beyond Protests

by Jo Ellen Nott

An ongoing investigation reveals that the Drug Enforcement Agency’s (“DEA”) involvement in domestic surveillance operations far exceeds its drug enforcement mandate.

Documents obtained through a Freedom of Information Act request by the Cato Institute in its litigation against the FBI and the Department of Justice show ...

Harris County, Texas, Settles Civil Rights Case for $1.5 Million Brought by Innocent Man Shot in His Home Five Times by Trigger-Happy Deputy

by Jo Ellen Nott

On December 19, 2023, the Harris County Texas Commissioners Court approved a $1.5 million settlement in Joshua Coucke’s case against Harris County, Texas. Coucke, 35, was an innocent bystander in his own home when he was shot five times by a Harris County Sheriff’s Office deputy. ...

New Mexico Supreme Court Announces Marquez’s Holding That ‘Crime of Shooting at or From Motor Vehicle Cannot Be Predicate Felony Supporting Charge of Felony Murder’ Is New Substantive Rule and Applies Retroactively

by Douglas Ankney

The Supreme Court of New Mexico held that the holding of State v. Marquez, 376 P.3d 815 (N.M. 2016), wherein the Court ruled that “the crime of shooting at or from a motor vehicle may not serve as the predicate felony in support of a felony murder ...

The Potential Privacy Threat of Generative AI

by Michael Dean Thompson

Police are increasingly looking to corporations for help solving crimes. Google is accustomed to providing lists of users who happened to be physically near a crime. In addition, it has provided the identities of people who had misfortune to search for certain keywords to law enforcement. ...

Pennsylvania Supreme Court: Testimonial References to Post-Arrest Silence Cannot Be Used Against Defendant at Trial, Pre-Arrest Harmless Error Analysis Does Not Apply

by Anthony W. Accurso

The Supreme Court of Pennsylvania reversed a defendant’s conviction in which his post-arrest silence was mentioned multiple times at trial, and it was not harmless beyond a reasonable doubt. In doing so, the Court reiterated that there is a different harmless error standard for pre-arrest versus ...

Evidence Shows When Researchers Work Alongside Cops in the Field, De-escalation Training Is Implemented and Effective

by Douglas Ankney

Traditionally, police officers are taught to take control of a volatile encounter, ensuring the safety of all officers present by approaching an unstable situation with weapons drawn. The underlying message is: “Make sure that you and your partner go home safe tonight.”

De-escalation training, by contrast, teaches ...

Data Mining: Law Enforcement Pays Cash for Your Private Data and Saves on the Hassle of Complying With the Fourth Amendment

by Douglas Ankney

According to an investigation by The Wall Street Journal, a company known as Near Intelligence purchases individuals’ private data from brokers who usually sell the data to advertisers, but Near Intelligence sells the data to government contractors who then pass the data along to federal military and ...

Sixth Circuit Announces Due Process Right to ‘Prompt’ Post-Seizure Hearing While Government Deciding Whether to Initiate Forfeiture Proceedings and Holds Wayne County’s Vehicle Forfeiture Program Violates Due Process

by Matt Clarke

The U.S. Court of Appeals for the Sixth Circuit held that the policies and practices of Wayne County, Michigan, in pursuing the civil forfeiture of vehicles seized by police violate the Fourteenth Amendment’s Due Process Clause because prosecutors took months to decide whether to proceed with forfeiture ...

Idaho Supreme Court Announces Adoption of ‘Primary Purpose’ Standard for Reviewing Police Decision to Impound Vehicles and Conduct Inventory Search to Prevent Pretextual Searches in Violation of Fourth Amendment

by Anthony W. Accurso

The Supreme Court of Idaho overturned a district court’s denial of a defendant’s suppression motion, instructing on remand that the court determine whether the primary purpose for which the officers impounded the defendant’s vehicle was to conduct a search for contraband under the Court’s newly adopted ...

Steady Improvement in Techniques for the Analysis of Degraded DNA

by Douglas Ankney

DNA, while remarkably resilient, may be degraded by exposure to ultraviolet radiation, extreme temperatures, humidity, and microbial activity. These exposures may result in “single-strand and double-strand breaks, depurination, deamination, and crosslinks.” Consequently, the DNA “becomes fragmented, diminishing its suitability for traditional forensic analysis methods that rely on ...

Indiana Supreme Court Announces Civil Forfeiture Triggers Right to Jury Trial

by Matt Clarke

The Supreme Court of Indiana held that civil forfeiture triggers the right to a jury trial.

As Alucious Kizer fled from a traffic stop, he discarded 74 grams of methamphetamine, 67 grams of fentanyl,12 grams of cocaine, and 10 grams of crack cocaine. Police recovered the drugs ...

Study Finds Public Defenders’ Heavy Workloads Prevent Effective Representation, Amendments to 50-Year-Old Guidelines Recommended

by Douglas Ankney

The National Public Defense Workload Study (“Study”) examined the guidelines created by the National Advisory Committee in 1973 (“NAC Standards”) that determine the recommended number of cases annually that a public defender should handle. The Study was conducted by a team of attorneys and researchers from the ...

Kentucky Supreme Court: Trial Court Abused Discretion by ‘Rehabilitating’ Juror Who Indicated Could Not Be Impartial and Failing to Strike Juror

by David M. Reutter

The Supreme Court of Kentucky concluded a trial court abused its discretion by failing to find a juror had evinced “a reasonable ground to believe he or she will be partial.” The Court reversed the defendant’s conviction and remanded for a new trial.

Before the Court ...

Identification Via DNA, Fingerprints, and 3D Scanning of Footwear

by Douglas Ankney

Eyewitness identifications of possible perpetrators of crime are often unreliable. Scientific identifications by comparison of DNA profiles and fingerprint exemplars are, by far, more trustworthy. But coming soon may be identifications made by analysis of 3D-scanned footwear.

Analysis of footwear impressions left at crime scenes has long ...

Vendors Late to Recognize the Serious Threat of Cell-Site Simulators

by Michael Dean Thompson

Cell-site simulators (“CSS”), also known by the brand name Stingray and more generically as IMSI Catchers, have permitted governments to spy on each other, hackers to install zero-click malware, and stalkers to track the location of their targets. They work by taking advantage of some of ...

Car Culture Dramatically Increases Number of Cop Confrontations

by Matt Clarke

In the early 20th century, mass production of automobiles caused a fundamental shift in American culture. One aspect of the emergent Car Culture was an increased number of interactions between police and the public that was largely absent during the horse-and-buggy era. Many of the police interactions ...

News in Brief

Arkansas: On November 15, 2023, Hot Spring County Sheriff Derek Scott Finkbeiner, 46, was indicted on obstruction of justice and concealing a crime. About two weeks before that, Finkbeiner was arrested by the FBI, according to an affidavit obtained by USA TODAY. The affidavit details that between April and May, ...

 

 

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