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Criminal Legal News: April, 2024

Issue PDF
Volume 7, Number 4

In this issue:

  1. Electronic Monitoring: An Alternative to Incarceration or a Troubling Extension of Punishment? (p 1)
  2. Cellebrite Asks Law Enforcement Clients to Keep Its Phone Hacking Tech Secret (p 11)
  3. California Court of Appeal: Traffic Stop Prolonged for Drug Dog Sniff Search Unrelated to ‘Mission’ of Stop Violates Fourth Amendment (p 12)
  4. Maine Supreme Court: Defense Counsel Ineffective for Opening Door to Otherwise Inadmissible Evidence of Bad Character (p 14)
  5. Eighth Circuit Announces ‘Categorical Approach’ Applies to SORNA Tier Analysis (p 16)
  6. Pharmacies Are Giving Your Prescription Data to Police Without a Warrant (p 17)
  7. What Happens When Prosecutors Offer Opposing Versions of the Truth? (p 21)
  8. New York Court of Appeals Declines to Adopt Per Se Rule That Handcuffed Person Is Always ‘In Custody’ for Miranda Purposes, but Holds the Handcuffed Defendant Was ‘In Custody’ and Suppress Incriminating Statements (p 24)
  9. Research Shows It Makes Sense to Hire Individuals with Criminal Records (p 25)
  10. Fifth Circuit: Admission of DHS Investigation Form G-166F at Trial Where Preparer of Form Did Not Testify Violates Confrontation Clause and Rule Against Hearsay (p 26)
  11. AI Disrupts Established Forensic Fingerprint Analysis—Not Every Fingerprint Is Unique (p 27)
  12. Does the Fourth Amendment Protect Cellphones at the Border? (p 28)
  13. New York Governor Signs Law Sealing Millions of Criminal Records From Public View (p 30)
  14. Massachusetts Supreme Judicial Court Announces Constructive Denial of Right to Counsel Where Defense Counsel Sleeps for Significant Portion or During Important Aspect of Trial (p 31)
  15. California Attorney General Issues Memo Prohibiting Out-of-State Sharing of ALPR Data (p 33)
  16. Utah Supreme Court Announces Communication of Cellphone Passcode Protected by Fifth Amendment and Rules Advising Jury of Defendant’s Refusal to Disclose Passcode Violates Privilege Against Compelled Self-Incrimination (p 34)
  17. Tracking Your Cellphone Might Be Easier Than You Think (p 35)
  18. Vermont Supreme Court Announces Prejudice Determination for IAC Claim Based on Rejected Plea Offer Limited to Evidence Available at Time Plea Considered—Not Any Subsequent Evidence (p 36)
  19. Time Served Under the First Step Act: Reduction, Not Revolution (p 37)
  20. One Year of New Orleans Police Department Facial Recognition Data (p 39)
  21. Police Bodycams: If You Film It … (p 40)
  22. The FBI’s Rapidly Expanding DNA Database (p 41)
  23. Federal Habeas Corpus: Understanding Second or Successive Petitions for State Prisoners (p 42)
  24. ‘Trail ’Em, Nail ’Em, and Jail ’Em’: Issues Private Probation and Parole (p 44)
  25. New York Court of Appeals: Admission of Prior Bad Acts Evidence to Prove Propensity to Commit Crime Harmful Error (p 45)
  26. Potential Dangers of Medical Monitors (p 46)
  27. FBI’s Bias for Keywords (p 46)
  28. Crime Scene Context: Bridging the Gap Between Evidence and Reconstruction (p 47)
  29. Taxpayers Foot the Bill for Police Training on How to Violate Constitutional Rights (p 48)
  30. Massachusetts State Police Facing Possible Class Action Lawsuit for Illegal Recordings (p 49)
  31. News in Brief (p 50)
  32. ‘Blatant Miscarriage of Justice’: Oklahoma Man Exonerated of Wrongful Conviction After 35 Years Despite Former Prosecutor’s Attempt to Perpetuate Injustice (p 50)

Electronic Monitoring: An Alternative to Incarceration or a Troubling Extension of Punishment?

by David M. Reutter

It is often said that life imitates art. When it comes to electronic monitoring (“EM”), your friendly, neighborhood Spiderman was a major influence for the idea to use an electronic device to track the location of persons entangled within the criminal justice and immigration systems. The ...

Cellebrite Asks Law Enforcement Clients to Keep Its Phone Hacking Tech Secret

by Jo Ellen Nott

Cellebrite—the Israeli digital intelligence company that provides data extraction tools for law enforcement to collect, analyze, and manage digital data—is asking its customers to keep the technology a secret.

For years, Cellebrite has tried to keep the technology of its products secret and has urged law ...

California Court of Appeal: Traffic Stop Prolonged for Drug Dog Sniff Search Unrelated to ‘Mission’ of Stop Violates Fourth Amendment

by Anthony W. Accurso

The Court of Appeal of California, Fourth Appellate District, overturned the denial of a defendant’s motion to suppress, holding that the officer impermissibly extended a traffic stop to conduct a drug dog sniff around the exterior of the defendant’s vehicle.

Officer Anthony McGlade of the Anaheim ...

Maine Supreme Court: Defense Counsel Ineffective for Opening Door to Otherwise Inadmissible Evidence of Bad Character

by Matt Clarke

The Supreme Judicial Court of Maine reversed a defendant’s domestic violence conviction after finding her attorney was ineffective for opening the door to prejudicial evidence about her parenting and failing to object to the prosecutor’s improper introduction of evidence about having a child removed from her home. ...

Eighth Circuit Announces ‘Categorical Approach’ Applies to SORNA Tier Analysis

by Douglas Ankney

In a case of first impression, the U.S. Court of Appeals for the Eighth Circuit announced that the categorical approach applies to the tier analysis of the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a).

Michael Ryan Coulson was convicted by court martial of “forcible ...

Pharmacies Are Giving Your Prescription Data to Police Without a Warrant

by Anthony W. Accurso

Following a congressional investigation, some lawmakers wrote a letter to the Department of Health and Human Services (“HHS”) about how the eight largest pharmacy chains provide patient prescription information to police without requiring a warrant, and only one regularly notifies customers when it discloses this private ...

What Happens When Prosecutors Offer Opposing Versions of the Truth?

by Ken Armstrong, ProPublica

An unusual recent court decision offered harsh criticism of a behavior that has left dozens of men condemned to death since the 1970s, spotlighting cases where prosecutors offered claims that contradicted what they said elsewhere.

This story was originally published by ProPublica.

 

When Baltimore police ...

New York Court of Appeals Declines to Adopt Per Se Rule That Handcuffed Person Is Always ‘In Custody’ for Miranda Purposes, but Holds the Handcuffed Defendant Was ‘In Custody’ and Suppress Incriminating Statements

by Douglas Ankney

The Court of Appeals of New York declined to adopt a per se rule that a handcuffed person is “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). Nevertheless, the Court held that the handcuffed and un-Mirandized defendant was in custody for purposes of ...

Research Shows It Makes Sense to Hire Individuals with Criminal Records

by Jo Ellen Knott

Rand, a nonprofit research organization, published a research brief on January 9, 2024, that proves hiring individuals with criminal records is not risky and has benefits for the employer, the individual seeking employment post-incarceration, and society.

The brief titled “Resetting the Record: The Facts on Hiring ...

Fifth Circuit: Admission of DHS Investigation Form G-166F at Trial Where Preparer of Form Did Not Testify Violates Confrontation Clause and Rule Against Hearsay

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit held that the admission of Department of Homeland Security (“DHS”) Investigation Form G-166F (“G-166F”) at Nicole Elizabeth Foreman’s trial where the preparer of the G-166F did not testify violated the Confrontation Clause of the Sixth Amendment to the ...

AI Disrupts Established Forensic Fingerprint Analysis—Not Every Fingerprint Is Unique

by Jo Ellen Knott

On January 10, 2024, Forensic Mag delivered astonishing news: Research out of Columbia University and the University at Buffalo radically challenged the long-held belief that fingerprints from different fingers of the same person are always unique and unmatchable.

The research team, led by Columbia Engineering undergraduate ...

Does the Fourth Amendment Protect Cellphones at the Border?

by Douglas Ankney

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and ...

New York Governor Signs Law Sealing Millions of Criminal Records From Public View

by Douglas Ankney

In late 2023, New York Governor Kathy Hochul signed the Clean Slate Act into law, permitting millions of criminal convictions to be sealed. “With the signing of this law, it adds to our momentum to get people back to work, give them those opportunities,” said Hochul.

Under ...

Massachusetts Supreme Judicial Court Announces Constructive Denial of Right to Counsel Where Defense Counsel Sleeps for Significant Portion or During Important Aspect of Trial

by David M. Reutter

In a case of first impression, the Massachusetts Supreme Judicial Court held that “a defendant constructively is deprived of his or her constitutional right to counsel under art. 12 [of the Massachusetts Declaration of Rights] where trial counsel sleeps for a significant portion of during an ...

California Attorney General Issues Memo Prohibiting Out-of-State Sharing of ALPR Data

by Anthony W. Accurso

Rob Bonta, the Attorney General for the state of California, issued a memo to law enforcement agencies in the state, which interprets SB 34 and forbids them from sharing with out-of-state agencies data collected from automated license plate readers (“ALPRs”).

ALPRs are controversial. They record license ...

Utah Supreme Court Announces Communication of Cellphone Passcode Protected by Fifth Amendment and Rules Advising Jury of Defendant’s Refusal to Disclose Passcode Violates Privilege Against Compelled Self-Incrimination

by Anthony W. Accurso

In a case of first impression, the Supreme Court of Utah held that production of a cellphone passcode is “testimonial” for purposes of the Fifth Amendment and that the State violated the defendant’s privilege against self-incrimination rights when it mentioned his refusal to disclose the passcode ...

Tracking Your Cellphone Might Be Easier Than You Think

by Michael Dean Thompson

The University of Toronto’s Citizen Lab investigated weaknesses in the manner with which cellphones and their locations are passed from tower to tower. What they found was that it was remarkably easy for a state agency, telephone company, and others to track cellphones using the archaic ...

Vermont Supreme Court Announces Prejudice Determination for IAC Claim Based on Rejected Plea Offer Limited to Evidence Available at Time Plea Considered—Not Any Subsequent Evidence

by David M. Reutter

In a case of first impression, the Vermont Supreme Court held “that in determining whether the criminal court would have accepted a plea agreement,” the Post-Conviction Relief (“PCR”) “court can consider only evidence that was available to the criminal court at the time it would have ...

Time Served Under the First Step Act: Reduction, Not Revolution

by Jo Ellen Knott

The First Step Act (“FSA”), a 2018 law designed to curb recidivism among formerly incarcerated individuals on the federal level, is showing modest but positive results in reducing the amount of time people serve in the federal Bureau of Prisons (“BOP”) system.

An analysis performed by ...

One Year of New Orleans Police Department Facial Recognition Data

by Michael Dean Thompson

About a year after the New Orleans Police Department (“NOPD”) performed its first facial recognition scan under a new policy that reauthorized its use, they have little to show for it. That is according to NOPD’s own data, which was analyzed by Politico. The new policy ...

Police Bodycams: If You Film It …

by Michael Dean Thompson

One hundred petabytes is a difficult quantity to comprehend. In plain English, that is about 113 quadrillion or 113 followed by 15 zeroes. According to ProPublica, that is the rough data equivalent of 25 million copies of the movie Barbie. One hundred petabytes is also approximately ...

The FBI’s Rapidly Expanding DNA Database

by Anthony W. Accurso

The FBI has amassed over 20 million DNA profiles in its database and has requested Congress double its budget for handling DNA samples “to process the rapidly increasing number of DNA samples collected.”

The Combined DNA Index System, or CODIS, is the FBI’s centrally searchable repository ...

Federal Habeas Corpus: Understanding Second or Successive Petitions for State Prisoners

by Dale Chappell

In the name of finality, federal courts are reluctant to undo criminal judgments of the state courts—especially repeated attempts by petitioners to do so under federal habeas corpus. When the Antiterrorism and Effective Death Penalty Act (“AEDPA”) came along in 1996, codifying longstanding rules prohibiting multiple attempts ...

‘Trail ’Em, Nail ’Em, and Jail ’Em’: Issues Private Probation and Parole

by Jo Ellen Nott

Vince Schiraldi talks private probation and parole in his new book Mass Supervision: Probation, Parole, and the Illusion of Safety and Freedom. When Schiraldi was selected to run the troubled New York Department of Corrections (“DOC”) during the COVID pandemic crisis, the New York Times called ...

New York Court of Appeals: Admission of Prior Bad Acts Evidence to Prove Propensity to Commit Crime Harmful Error

by David M. Reutter

The Court of Appeals of New York held a trial court erred in admitting evidence of prior bad acts evidence. It further concluded the error was not harmless and reversed, ordering a new trial.

Sebastian Telfair was arrested in June 2017 after a traffic stop, during ...

Potential Dangers of Medical Monitors

Michael Dean Thompson

Modern medical science has delivered some remarkable lifesaving technologies. Included in the list of modern marvels are pacemakers equipped with telemetry systems that permit remote monitoring but also remote modification of their operating parameters. With such a pacemaker, a technician can monitor how the patient’s heart responds ...

FBI’s Bias for Keywords

by Carlos Difundo

In September of 2021, then-Assistant Director for Counterterrorism Jill Sanborn told the Senate that the FBI did not monitor publicly available social media conversations. “It’s not within our authorities,” she told them, adding that the First Amendment barred them from doing so. It turns out that statement ...

Crime Scene Context: Bridging the Gap Between Evidence and Reconstruction

by Jo Ellen Nott

F.D. Zigan, a veteran crime scene investigator who specializes in fingerprint analysis for the Roswell Police Department in suburban Atlanta, Georgia, writes about the disconnect between evidence collection and scene reconstruction in Forensic Magazine, November 2023.

Zigan points out that in a world of specialization, a ...

Taxpayers Foot the Bill for Police Training on How to Violate Constitutional Rights

by Anthony W. Accurso

Until recently, police departments in New Jersey were covering expenses for their officers to attend training sessions conducted by Street Cop Training (“SCT”), an organization that encourages “a hypervigilant warrior mentality” and trains officers to consider an arbitrary and contradictory list of behaviors as reasons to ...

Massachusetts State Police Facing Possible Class Action Lawsuit for Illegal Recordings

The Massachusetts State Police (“MSP”) is the defendant in a potential class action lawsuit alleging that troopers secretly recorded nearly 200 individuals during criminal investigations, many of them drug cases. These recordings made by a phone app called Callyo violate federal and state laws and potentially jeopardize criminal cases across ...

News in Brief

News in Brief

Colorado: On February 28, 2024, Chiara Wuensch, a DNA Analyst for the Weld County Sheriff’s Office at the Northern Regional Forensic Lab for more than 10 years was fired. The termination was the result of a roughly one-month internal investigation, which concluded that Wuensch’s case work had ...

‘Blatant Miscarriage of Justice’: Oklahoma Man Exonerated of Wrongful Conviction After 35 Years Despite Former Prosecutor’s Attempt to Perpetuate Injustice

by Douglas Ankney

Perry Lott was exonerated in Ada, Oklahoma, of a 1987 rape and burglary conviction after 35 years—30 of which Lott spent in prison—in spite of former District Attorney Paul Smith’s attempts to perpetuate such a gross miscarriage of justice.

In November 1987, a white woman was raped ...

 

 

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