Friday, October 14, 2016

UPDATE: You don't have an expecation of privacy in everything in your wallet in a few more states.

Back in June, we posted about an Eighth Circuit case that held that a scan of the magnetic stripe on the back of a credit card is not a search that would be afforded Fourth Amendment protections. We were, however, optimistic that a strong dissent might win the day in a future case asking the same question.

Well, maybe too optimistic. Yesterday, the Fifth Circuit, in United States v. Turner, similarly held that the scanning of a gift card stripe is not a search under the Fourth Amendment. Although this is not good news for defendants, there are some practical tips that can be taken from this opinion to hopefully help stem the flow of opinions going this direction.

1. Make a thorough record. While this is always important, it is especially important in cases with a technology angle. If you aren't familiar with the technology, the court likely won't be either. We need to employ experts and make sure we are making the best record possible. The Turner Court agrees:

At this point, it is helpful to describe the electronic information encoded in the typical gift card. The record lacks much detail about this, a deficiency that hurts Turner as he bears the burden of establishing a privacy interest. Useful information can be found, however, in other cases addressing whether scanning credit or gift cards amounts to a search.

2. Technology is changing. While these opinions are certainly not good on this issue, both opinions spend time reminding us of the changing nature of technology. The new chip readers mentioned in the dissent in Briere De L'Isle aren't at issue in this case, but the opinion mentions them and leaves room for a different outcome with different technology.

So while it is certainly disconcerting to know that we don't have Fourth Amendment protections in items in our own wallets, we can find some solace in knowing that a better record, or some tech advances may save the day in a future case.

Sunday, October 9, 2016

"Inserting a probe into a woman’s vagina is plainly a search when performed by the government"

And you thought law school was humiliating. At Valencia College (a state school in Orlando), female sonography students were encouraged to submit to transvaginal ultrasounds performed by their (male and female) peers for educational purposes. Some of the women objected. They were harassed out of the program.

The women sued. Two of them who submitted to the ultrasounds claimed that the procedure amounted to an unconstitutional search in violation of their Fourth Amendment rights. The district court dismissed their claims, holding that a search is not a search for Fourth Amendment purposes if it is motivated by educational interests.

The Eleventh Circuit reversed. No investigative purpose is required for a government intrusion to violate the Fourth Amendment, said the court:

"Although the employees did not conduct the transvaginal ultrasounds to discover violations of the law, the word 'search' in the Fourth Amendment does not contain a purpose requirement."

The court relied on Soldal v. Cook, 506 U.S. 56, 69 (1992). There, the Supreme Court announced that "the reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the [Fourth] Amendment applies."

According to Valencia's website, the sonography program "offers real-life lessons to help students build skills and confidence." Real-life lessons indeed.

Tuesday, October 4, 2016

Blinded with science

Last month an executive report was prepared by the "[n]ation's leading scientists and engineers" that included "an extensive literature review" regarding the status of forensic science in criminal courts. The report includes criticisms of a number of often used fields of forensic science including "DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair." The report has some strong language regarding the lack of scientific vigor in some of these areas, describing the problem as "not just a hypothetical problem but a real and significant weakness in the judicial system."

The FBI and Department of Justice have of course, taken this opportunity to revisit scientific standards in their laboratories and make sure they meet the standards proposed by this review.

Just kidding.

Instead, the Justice Department is preparing "a packet of information [to send] to federal prosecutors regarding how to dispute this report in court.” The National District Attorney's Association accused the report authors of “scientific irresponsibility.”

This should create additional room to make Daubert challenges. A number of the "Senior Advisors" to the committee include Federal District Court and Appellate judges. Keep raising those challenges!

Antiquated notions indeed.

Sunday, October 2, 2016

DOJ: "Confidential sources can be motivated by factors other than combating crime"

Hold on to your hats. The DOJ Inspector General has published an audit of the DEA's confidential-informant program, recognizing that "confidential sources can be motivated by factors other than combating crime, including financial gain and avoidance of punishment; therefore, care must be taken to evaluate and supervise their use."
The report details a plethora of significant concerns about the DEA's use of informants. Some highlights:
  • Based on our review of DEA’s confidential source data, we estimated the DEA may have paid about $9.4 million to more than 800 deactivated sources between fiscal years (FY) 2011 and 2015.
  • Another area of concern is the DEA’s oversight of confidential sources it categorized as "Limited Use," often referred to as "tipsters," which DEA policy specifies are sources who make information available independently without direction by the DEA. The Limited Use category is regarded by the DEA as low-risk and therefore DEA policy requires the least supervision. Yet we found that Limited Use sources were some of DEA’s highest paid sources, with 477 Limited Use sources during the period of our review having received an estimated $26.8 million.
  • We also found the DEA did not appropriately track all confidential source activity; did not document proper justifications for all source payments; and, at times, did not adequately safeguard traveler information.
  • We were extremely concerned to discover the DEA condoned its confidential sources’ use of "sub-sources," who are individuals a source recruits and pays to perform activities or provide information related to the source’s work for the DEA.
  • Another significant area of concern is the limited management, oversight, and tracking of source payments by the DEA’s Intelligence Division.
  • The deficiencies we identified in this audit raise significant concerns about the adequacy of the current policies, procedures, and oversight associated with the DEA’s management of its Confidential Source Program.

Tuesday, September 20, 2016

Third Circuit grants as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(1).

It may be time to dust off those Second Amendment challenges to felon-in-possession prosecutions. In Binderup v. Attorney General United States, Nos. 14-4549 & 14-4550 (3d Cir. Sept. 7, 2016),  the Third Circuit granted as-applied Second Amendment challenges to 18 U.S.C. § 922(g)(1), holding that two challengers could not be forever prohibited from possessing firearms based on prior convictions for non-violent misdemeanors (punishable by more than one year’ imprisonment) that never resulted in any jail time.

Binderup was based on D.C. v. Heller, 554 U.S. 570 (2008) (establishing the personal right to possess firearms under the Second Amendment) in which the Supreme Court explained that firearms prohibitions like those for “felons and the mentally ill” were presumptively lawful regulatory measures. Id. at 627 n. 26 . In Binderup, the Third Circuit explained that because the lawfulness of a ban on possession of firearms by felons is just a presumption, this means the presumption can be rebutted. Slip op., at 28.
In granting the as-applied challenges, the court explained:
The Challengers’ isolated, decades-old, non-violent misdemeanors do not permit the inference that disarming people like them will promote the responsible use of firearms. Nor is there any evidence in the record to show why people like them remain potentially irresponsible after many years of apparently responsible behavior. Without more, there is not a substantial fit between the continuing disarmament of the Challengers and an important government interest. Thus, § 922(g)(1) is unconstitutional as applied to them.
Slip op., at 39. The court heard the case en banc, and the 184-page opinion was highly fractured.
Lyle Dennison explains that this is the first time a federal appeals court has granted a Second Amendment challenge when the person was plainly prohibited from possessing firearms under 18 U.S.C. § 922(g). He also explains that the Supreme Court has not taken an as-applied challenge under the Second Amendment post-Heller, leading to a possibility that this could be the case.
Importantly, a bloc of five judges in the majority concluded that 18 U.S.C. § 922(g)(1) is unconstitutional when used against anyone whose crime did not involve violence or any other signs that it was a serious offense. Thus, under this rationale, if a defendant does not have a prior violent crime in their past, then there is an argument that 18 U.S.C. § 922(g) cannot permanently prohibit the defendant from exercising their Second Amendment rights.

Sunday, September 18, 2016

Just Between Us

As has been widely reported (here, here, and here, for instance), this summer the federal criminal-defense bar learned that the Kansas United States Attorney's Office was in possession of video recordings of attorney-client meetings at CCA, and audio recordings of attorney-client telephone calls from CCA.

Links to orders and other papers from the ensuing litigation are now available at our website, along with our suggestions for protecting your attorney-client communications at all federal detention centers. This information will remain on our site for the foreseeable future, and we will update it as necessary. In the meantime, be vigilant.

Sunday, September 11, 2016

Government's "protected discovery practices" under fire by the courts

Practitioners in Kansas City know the drill: The government conditions discovery on a promise not to give copies to the defendant, or on an agreement that defense counsel may only view the discovery in the government's office under strict conditions.

These days are coming to an end.

Earlier this summer, Tenth Circuit Judge Holmes, joined by Judge Kelley, issued a concurring opinion in an unpublished case to express "significant concern regarding the ethical or legal propriety" of conditioning discovery on an agreement not to give copies to the defendant.

And last week, Kansas District Court Judge Robinson granted a motion under both Rule 16 and a standard pretrial discovery order to compel the government to give defense counsel copies of videos of controlled buys from the defendant.

In United States v. Perez-Madrigal, defense counsel requested copies of these videos and was told, simply, "no." The government insisted that counsel would have to review the videos in the government's office, without his client present (at least "initially"). After hearing from the parties, Judge Robinson rejected all of the government's justifications (informant safety; evidence safekeeping) for not allowing counsel to have copies, and for excluding the defendant from counsel's initial review of the evidence.

Judge Robinson then went further, pointing out that the government's protected discovery practices "significantly interfere" with the defendant's Sixth Amendment right to prepare a defense; they "undermine[] the fostering of trust between a defendant and his attorney"; and they make it "difficult for counsel to provide effective prepresentation [with respect to plea bargaining], and for the Court to accept a defendant's plea knowing that it was made voluntarily and with knowledge of the factual basis for the plea." Finally, Judge Robinson emphasized that it is "not the responsibility or duty of the USMS" to transport defendants to the government's office to review discovery.

In the end, the Court rejected the government's practice of "applying protective discovery as a default rule to an entire genre of cases." If the government has good cause to restrict discovery in a particular case, it may request a protective order.