Thursday, February 23, 2017

Can the government force your thumbprint to unlock your phone?

No, at least for one Federal District Court Judge in the Northern District of Illinois. In this case the government sought a warrant to search a particular place for various computer based technologies and also, as is relevant here, to force “any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device.”

The Judge rejected that portion of the warrant. Interestingly, one basis the Judge rejected the warrant is on 5th Amendment grounds:
The connection between the fingerprint and Apple’s biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phone’s contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

 Professor Orin Kerr at George Washington Law School blogged on this case as well. He agreed with the outcome, but for a different reason. For Prof. Kerr, a
warrant has to state where the police can search and what they can seize there. But what else happens when the warrant is executed is a matter of case-by-case reasonableness, and magistrates shouldn’t try to insert themselves into that by imposing blanket reasonableness determination ex ante when they have no idea what the facts will turn out to be.
With changes in technology and courts finally tackling privacy issues in relation to the new landscape, hopefully decisions like this one (limiting the governments ability to search) become a little more common.

Tuesday, February 21, 2017

Why Police Lie Under Oath

From Michelle Alexander, an article in the New York Times Sunday Edition:

Speaking of Michelle Alexander, she is featured in  Ava DuVernay's documentary 13th, which every public defense lawyer must watch and then proselytize.

And her book The New Jim Crow is also mandatory reading.

Correction: Goings On, CLE Dates

The correct dates for the March Immigration CLE are March 9 in Wichita and March 10 in Kansas City.

Monday, February 20, 2017

Goings On

First, check out the new Kansas Federal Public Defender website at, which replaces both the old FPD and the Kansas CJA websites.

Second, we will offer a CLE on the intersection of criminal defense and immigration on March 9 in Wichita and March 10 in Kansas City. More details here. [Corrected dates].

Third, The Pitch published a feature story about CJA panel attorney Cheryl Pilate's efforts to free Lamont McIntyre (who was wrongly convicted of murder and sentenced to life in prison when he was just 17 years old) and how the KCK police department tolerated and even protected the lead detective's persistent and pervasive misconduct.

And for all of the opera lovers reading this, the Kansas City Lyric Opera will present Dead Man Walking, based on Sister Helen Prejean's book about her work on death row. Opening night is March 4, details here.
 That's all for now.--Melody

Wednesday, February 15, 2017

Race + criminal history + common name ≠ probable cause

April Smith was arrested, held in police custody for 80 days, and lost her job because an officer looking for a drug-dealing skinny black female named "April Smith" randomly selected her from three "April Smiths" with criminal records in a police database.

She sued for false arrest.

The district court dismissed her suit, finding that the arresting officers had probable cause to believe that she was the "April Smith" they sought. The Fourth Circuit reversed, emphasizing the arresting officer's failure to make any effort to connect the April Smith he chose from the database with the "April Smith" who sold drugs to an informant:

"His only information about Smith was that she had previously been convicted for selling drugs years past, that she was a black woman, and that she was 'near' the site of the drug sale because her home address was eleven miles away."

"If this amount of evidence were sufficient for probable cause, then officers would have probable cause to obtain arrest warrants for any local residents who fit the generic description of the day--be it 'black woman,' 'black man,' or otherwise--so long as they had a criminal history and an unfortunately common name. Such scant evidence barely meets the threshold of 'mere suspicion,' let alone the threshold of probable cause."

Image result for name smith common

Sunday, February 12, 2017

The Fourth Year of Second Chair

We are wrapping up our third year-long term of the Second Chair Program, and preparing for the fourth class. The Second Chair Program is a FPD training and mentoring program for attorneys who want to practice in federal court or apply for the CJA panel, but may lack the requisite experience. 

As we become more experienced in presenting and organizing the program, we realized that we need to make some adjustments. First, the program will be 18 months rather than 12--there is just too much to cover and our guest speakers have been incredibly generous with their time and knowledge. Second, we can only offer the program in one city at a time; two venues are simply more than our staff and resources can cover. So this coming year, it will be in Wichita.  

Otherwise, the fourth class will operate much the same as the previous three. The program includes an intensive monthly orientation that covers all phases of a federal criminal case and sentencing guideline workshops. Attendance at these sessions is mandatory for continued participation in the program and for consideration for panel appointment. 

Each participant will be assigned to a more experienced mentor attorney to shadow on selected cases. Participants should plan to commit about 8-10 hours per month. Materials and compensation ($70 per hour) are provided courtesy of the Bench-Bar Committee. Participants may also be requested to assist current FPD clients, pro bono, with representation on basic legal matters related to their criminal case.

Only a limited number of full participants are accepted. Other attorneys can audit the training sessions, lectures, and workshops, with prior approval from the FPD.

The 2017-18 program will take place in Wichita and will begin July 1, 2017. If you would like to apply, please send a letter of interest, resume, and the three references to Laura Shaneyfelt, CJA Resource Counsel, at Deadline is May 15, 2017. 

Thursday, February 9, 2017

Police: "Will you stop walking?" Tenth Circuit: That's a seizure.

You are walking home on a cool October evening. The days are getting shorter, and so it is already dark by 7:45 p.m. The street is unlit, and you are wearing black clothes and carrying two backpacks. As you pass a construction site near a housing project, a police cruiser carrying two cops pulls up alongside you. Nobody else is around.

Can we talk to you?

Yeah, what's up?

Where are you coming from? What are you doing?

I'm coming from my grandmother's house. I'm just trying to get home.

What is your grandmother's address?

I don't know her address.

Maybe you're cold. Maybe you're tired. Maybe it's been a long day. Maybe you just don't like being pestered by the police as you're minding your own business trying to get home. Maybe, having been inundated with stories of police shootings in recent years, you feel intimidated being alone on a dark street with two police officers following you. You keep walking, and the cruiser keeps cruising alongside.

Will you stop so we can talk to you?

. . .

This was a seizure, said the Tenth Circuit this week in United States v. Hernandez, affirming the district court's suppression order:

"Considering the totality of the circumstances here, that there were [1] two [2] uniformed police officers [3] driving closely alongside Mr. Hernandez [4] in the dark with [5] no one else around, and that Mr. Hernandez [6] did not stop walking until one officer asked him to stop even though he was answering the officers’ questions, the district court did not err in concluding there was a show of authority by Officers Morghem and Walton sufficient to constitute a seizure under the Fourth Amendment."

And the officers had no reasonable suspicion to support the seizure. The Tenth Circuit agreed with the district court's meticulous rebuttal of all of the government's arguments on this point:

But high-crime area! "The location of the stop in a high-crime area is ‘not sufficient by itself to support a reasonable suspicion’ that the individual himself is engaged in criminal activity."

But he wasn't using the sidewalk! "Mr. Hernandez might well have decided to take a shorter route to his destination, or to see the progress of the neighborhood’s latest highrise development . . . [t]he government did not explain why suspicious persons are less likely to choose the sidewalk."

But his clothing was black! And he had backpacks! If "black clothing were sufficient to confer reasonable suspicion, it could subject the ambling public (or, at least its Hispanic members) ‘to virtually random seizures, inquisitions to obtain information which could then be used to suggest reasonable suspicion, and arbitrary exercises of police power.'"

But he didn't know his own granny's address! "Ordinary experience tells us that a grandchild who knows the familiar way to his grandmother's house may well not know her exact street address."