Thursday, June 26, 2014

Cell Phone Week

This week, the Supreme Court decided Riley v. California, unanimously holding that police must get a search warrant to look through cell phone data because "cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”  As SCOTUSBlog points out in this symposium, this decision will reach far beyond your old flip phone to recast access to cloud-based data and the third-party doctrine. The Electronic Frontier Foundation (EFF) talks about the magnitude of Riley here.

Today, the New Yorker has an article, What Your Cell Phone Can't Tell the Police, that calls into question the accuracy of cell-tower location information (this is different from the insidious GPS tracking data that live in your iPhone). Apart from reliability is the question of whether a warrant is needed to get those records. Riley probably answers that. One more point: this sort of data may be subject to a Daubert challenge.

And the Eleventh Circuit just held (not this week, but June 11), in a case of first impression, that cellphone site location information -- imprecise as it may be -- obtained under the Stored Communications Act (which does not require a warrant) actually does require a warrant. 

The question,
[W]hether [the Fourth Amendment] protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location.
The answer,  
[W]e hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.
Of course, then the defendant got Leon-ed. But this is an important case for many reasons, not the least of which is that the Court found that the Fourth Amendment demanded more than the statute required. 

Maybe the law is starting to catch up with technology. Slowly. At least the courts recognize that data is different. Quite a week for cell phones.


Wednesday, June 25, 2014

Taking Too Much For Too Long: Computer Seizures

The Second Circuit, ruling for the defense, published a decision that not only condemns unreasonable computer searches, but also calls out government bad faith and the need to deter unconstitutional conduct in the area of digital forensics. 

When the government seizes computers or other large data digital storage media, it usually removes the items from the search site to a forensics lab because, it argues, a true forensic search cannot be done in that location or in that time frame. A year or more later, perhaps there is an indictment. 

Most of the time, though, that seizure and removal encompasses more than the target of the warrant. As we know from today's decision in Riley/Wurie, technology can and does store vast amounts of personal information. How long can the government keep information seized pursuant to a lawful search but that, as it turns out, is not responsive to the warrant? How long can it keep family photos, music files, and other everyday, innocent, and usually boring detritus?

In US v. Ganias, the agents didn't actually take the computers, but made mirror image copies of three hard drives, which contained much information outside the warrant. In other words, it was not what they were after. At least not at that time. 

Another later investigation led to questions about those documents, and two-and-a-half years later, the government got a warrant for the information already in its possession. Those documents no longer existed on the defendant's computers. The issue and the answer, in short order, 
[W]hether the Fourth Amendment permits officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on that computer for use in future criminal investigations. We hold that it does not.
Then, the Court found that information should be excluded because "the agents could not have had a good-faith basis to believe the law permitted them to keep the non-responsive files indefinitely," rejecting arguments that the defense should have asked for it back and that it was too much trouble to delete the non-responsive information. 

And, finally, deterrence, the heart of the exclusionary rule. 
"[T]he benefits of deterrence in this case are great. With the Government's use of forensic mirror images becoming increasingly common, deterring its unconstitutional handling of non-responsive data has grown in importance.So while temporary retention may be reasonable, indefinite storage of intermingled information outside the scope of the warrant is not. 

From the Volokh Conspiracy, Orin Kerr's take on Ganias.

Saturday, June 21, 2014

Cutting into Paper

By guest blogger AFPD Andy McGowan,

We are usually more concerned about how much time our clients are facing than we are about the conditions of supervision. But, there is no reason not to review the conditions closely to make sure that they are warranted and that they are not too vague. The Seventh Circuit has very recently published a series of cases where they removed or modified several common special conditions of supervision because the facts of the case did not support them or because they were too vague. See United States v. Siegel, 2014 WL 2736016(7th Cir. May 29, 2014), United States v.Baker, 2014 WL 2736016 (7th Cir. June 17, 2014), United States v. Poulin, 745 F.3d 796 (7th Cir. 2014) (remand in child porn case for judge to reconsider ban on unsupervised contact with minors, including son, and prohibition on accessing and possessing adult pornography); and United States v. Shannon, 743F.3d 496 (7th Cir. 2014) (remand to reconsider complete ban on possession of material containing sexually explicit conduct in child porn case).

The conditions in the two most recent cases included a complete ban on possessing anything with nudity in a child abuse case (modified), a prohibition on consuming any “mood altering substances” (modified to include psychoactive substances that impair functioning), a complete ban on drinking alcohol (modified to prohibit excessive use of alcohol), and a ban on contact with a minor, even the defendant’s child (eliminated). By clicking the link below, you can access a bit more analysis of the most recent two cases to give you a flavor of the types of arguments that were successful and why. 

Here's Doug Berman's post on US v. Seigal, calling it a must-read for all federal criminal defense practitioners.

Andy's long(er)-form analysis follows:

Sunday, June 8, 2014

There and Back Again

Is a prior conviction from Kansas a felony for purposes of federal law? Yes, if the conviction is one that is punishable by a term of imprisonment exceeding one year. But when is a conviction from Kansas punishable by a term of imprisonment exceeding one year? This seemingly simple question has caused confusion in the Tenth Circuit, confusion rooted in Kansas’s sentencing guidelines scheme. 

Similar to the federal guidelines, the Kansas scheme is based on the crime of conviction and the defendant’s criminal history; the two merge in a grid, and that grid provides presumptive punishments in particular cases. In 2005, the Tenth Circuit, in United States v. Plakio, 433 F.3d 692, held that the numbers in this grid set the statutory maximum sentences for a particular offense. Thus, if the highest number in the grid (there are three) is 12 (or less than 12), the conviction is not a federal felony (because it is not punishable by a term of imprisonment of more than one year). 

Simple enough. Or not. In 2008, the Tenth Circuit changed course, overruling Plakio in United States v. Hill, 539 F.3d 1213. The Tenth Circuit thought Plakio incorrect in light of a decision from the Supreme Court – United States v. Rodriguez, 553 U.S. 377 (2008). But two years later the Supreme Court expanded upon Rodriguez in Carachuri–Rosendo v. Holder, 560 U.S. 563 (2010), an important case in which the Supreme Court rejected a “hypothetical approach” to recidivist statutes in favor of an approach rooted in the realities of a particular case. So, if a defendant is a recidivist, but was not subject to a recidivist punishment, then the recidivist punishment is irrelevant, even if the defendant could have been charged as a recidivist.

In a decision published last week -- United States v. Brooks, __ F.3d __,2014 WL 2443032 (10th Cir. June 2, 2014) – the Tenth Circuit came full circle, overruling Hill in light of the Supreme Court’s decision in Carachuri-Rosendo. The case is a must read for any attorney that practices in the Tenth Circuit, and particularly in Kansas. It makes clear the statutory maximum sentence for a prior Kansas conviction is the presumptive sentence under the Kansas guidelines grid. If the grid produces a presumptive sentence of 12 months or less, the conviction is not a felony for purposes of federal law. 

As one might imagine, the decision has serious and far-reaching consequences. 
Predicate convictions for felony statutes, including the felon-in-possession statute, 18 U.S.C. § 922(g), and its Armed Career Criminal counterpart, 18 U.S.C. § 924(e), no longer include the many Kansas convictions with presumptive sentences of 12 months or less. The same holds true for the numerous recidivist enhancements in the Sentencing Guidelines (think 2K2.1, 4B1.1, and 2L1.2, to name a few). Moving forward, it is imperative that we scrutinize any Kansas conviction used to enhance a sentence in federal court. We’ve also begun to review the many prior convictions and sentences that might be affected by the decision in Brooks. Do not hesitate to contact us if you have a Brooks-related issue come up in one of your cases.

-- Post by Daniel Hansmeier, AFPD in the District of Kansas, Kansas City office.

Tuesday, June 3, 2014


Yesterday, in US v. Brooks, the Tenth Circuit decided that any Kansas conviction that is not punishable by more than 12 months is, generally, not a felony for federal purposes -- not for felon-in-possession cases, aggravated re-entry cases, Armed Career Criminal, some 851 enhancements, and a plethora of guideline factors. If 12 is the top number in the box, your client is probably good.

We are working on the retroactive application. For now, think about the prospective use of Brooks because prior felony convictions have far-reaching and serious consequences.

A couple of examples:

Under USSG 2K2.1(a)(1)-(4), the base offense level for felon-in-possession increases for one or more prior convictions for certain felonies. A Kansas conviction for those offenses may not qualify if the client did not face a sentence of greater than 12 months. Moreover, under (b)(6), a four-level enhancement can apply if the weapon was used or possessed "in connection with another felony offense." The offense must be specified, and under Brooks may not be a felony.

Think about supervised release violations, too. The grade of the violation, as defined by USSG 7B1.1, determines the guideline range. Both Grade A and B violations may consider conduct that constitutes a felony -- an "offense punishable by a term of imprisonment exceeding one year." Again, that conduct must be identified. If it happens to fall into a grid box where the top number is 12, your client falls from a Class A to a Class C violation. 

Even if the crime itself is defined as a "crime of violence," like fleeing-and-eluding for career offender purposes, it still may not be a federal felony.

For quick reference (and thanks to David Freund),

More on Brooks later.