Thursday, October 26, 2017

Use of stingray device violates 4th Amendment when used without a warrant.

This blog hasn't been short on discussing a device that mimics a cell phone tower, but also tracks a person and obtains information from their phone. We discussed prior opinions related to this stingray technology in the federal circuits, where courts were faced with the intersection of these devices and the 4th Amendment, but ruled on other grounds.

Last month, the D.C. Court of Appeals took this issue on headfirst, ruling that the use of this device without a warrant violated the 4th Amendment. The court took a strong line on privacy and cell phones, holding that ruling otherwise "would also place an individual in the difficult position either of accepting the risk that at any moment his or her cellphone could be converted into tracking device or of forgoing ―necessary use of‖ the cellphone." 

The court concluded that allowing such a search without a warrant would violate an individuals "actual, legitimate, and reasonable expectation of privacy in his or her location information and is a search."

There is a good discussion of Katz and the oft-made government argument that using a cell phone holds the information out to the public which is adverse to an expectation of privacy claim. Describing the distinction as a probabilistic one (whether the public thinks it is likely the government could access the information) v. a normative one (whether our history and tradition says the government should have access to this information).

Wednesday, October 25, 2017

Block that sex-crimes testimony!

What could go wrong during a sex-crimes trial? All kinds of things, from the admission of other, uncharged bad sex acts to therapist testimony bolstering the complainant's credibility to prosecutorial misconduct.

And now we have one more case to help us explain to the judge why these errors should not be allowed. In United States v. Preston, the Ninth Circuit reversed two convictions for aggravated sexual abuse of a child because of cumulative error. Read this case if you're preparing for a sex-crimes trial.

Sunday, October 22, 2017

Cert Grant Series: And Now From Kansas . . .

Last Monday, the Supreme Court granted cert in a case arising from a 2011 marijuana trafficking prosecution in Kansas City, Kansas, tried before Judge Vratil. Brothers Los Rovell Dahda and Roosevelt Dahda asked the Court to consider this question:
Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction. 
The wiretap orders in Dahda authorized the interception of communication outside of Kansas, beyond the issuing magistrate's jurisdiction. Trial counsel unsuccessfully moved to suppress the wiretap evidence.

On appeal, the Tenth Circuit disagreed with the district court and found that the T-3 order was facially insufficient as it authorized interception of communication outside of the court's jurisdiction. But the Circuit still refused to grant relief. Instead, the Tenth Circuit read into the statute another condition: a facially insufficient order must implicate "core concerns" of Title 3--privacy and uniformity--to justify suppressing the evidence.

The  circuits are divided on this extra-statutory condition. The statute says nothing about core concerns or exceptions to the statutory suppression remedy. The Tenth Circuit decision is here.

The cert petition, filed by counsel of record at Williams & Connolly LLP in D.C., is here. Oral argument has not yet been scheduled.

Thursday, October 19, 2017

Let's talk about forensic science: week 6

After a short hiatus, it is again time to talk about forensic science. But this time less on the science and more on some practical motion/trial strategy. For those of us who have had examples of suggestive identification (a recent local example exists), only to have a judge tell us it is an issue for the jury, the process is frustrating. Luckily forensic science can help! For years courts have simply relied on the good judgment of juries to determine if someone is telling the truth or not. But  the problem of misidentification is that the witness believes they are telling the truth, but has made a mistake. So what do we do?

The forensic science exits to support a remedy from judges. A summary of the science is provided in State v. Henderson, a New Jersey Supreme Court opinion that went to great lengths (appointing a special master and all) to flush out the science in this area. Also a byproduct of DNA exonerations is that we now can isolate causes of wrongful convictions. And misidentification is the clear leading cause of wrongful convictions. Justice Sotomayor has a strong dissent in Perry v. New Hampshire that should give us some comfort that courts may soon turn in the right direction.

But what are the remedies that are available? Again, Henderson is instructive. We should still start with suppression and focus on the problem with relying on juries - the body of science that shows people are not as good as identifying people as they believe they are - who are left to determine someone is telling the truth when that person doesn't understand their flawed thinking. But we should also be looking for experts in the field to testify. Those experts can guide the court on suppression as well as testifying at trial if needed. And jury instructions are essential. Such instructions should probably be given at the time the identification is introduced AND in the final jury instructions packet. While the cases we read seem to close the door on getting a remedy for a suggestive procedure, it is time that courts catch up with the science.

Sunday, October 15, 2017

Tenth Circuit to hold special session in Topeka on October 26

We have a new feature on our website. As Tenth Circuit oral argument sessions approach, we will post a summary of the issues pending in each criminal case to be argued. You can access this summary from the main page of our website, just below our more detailed document summarizing all issues currently pending before the Circuit in criminal and postconviction appeals (see image below).

Up next is a special argument session in Topeka, Kansas on October 26, 2017, at the Robinson Moot Courtroom at Washburn Law School. Start time is 9:00 a.m. It will be a great opportunity to see the Court in action (and with an all-female panel) via Judges Briscoe, McHugh, and Moritz.

Thursday, October 12, 2017

Cert petition gets to the intersection of the 2nd and 4th Amendments.

There is a clear move in this country towards an expansion of 2nd Amendment rights. But at the same time 4th Amendment protections seem to be going the other direction. What happens when these two trends intersect?

That question is at the heart of a cert petition before the Supreme Court. In United States v. Robinson the court may decide to consider:

Whether, or under what circumstances, in a state that permits residents to legally carry firearms while in public, an officer's belief that a person is armed allows the officers to infer for purposes of a Terry v. Ohio search that the person is “presently dangerous.”
Below, the 4th Circuit determined that all that was required was for the officer "reasonably suspect that the person was armed." But, as the Petitioner points out, Terry seems to require more - either reasonable suspicion that the person committed or is about to commit a crime, or evidence that the person is armed and presents a present danger.

Because Kansas is such a state with expanded gun rights, we should be raising this issue and keeping an eye on this interesting petition.

Wednesday, October 11, 2017

Racial profiling leads to suppression

Lamar, Missouri, a small town in Southwest Missouri (pop. 4,532, per the 2010 census), is known as the birthplace of President Harry S. Truman. Scholars credit Truman with being the first president after Lincoln to address racial inequality in America. He desegregated the military after a civil rights commission he established published a report titled "To Secure These Rights" ("We need to guarantee the same rights to every person regardless of who he is, where he lives, or what his racial, religious or national origins are.").

Related imageOn or around March 20, 2016, there was a robbery in Lamar. A local sheriff's deputy knew that the police department was "looking for a black or Hispanic male in his early twenties" in connection with the crime. Weeks later, on April 9, 2016, the deputy saw a man walking down the street and suspected that he might be the robber, "because there are not a lot of younger black or Hispanic males in Lamar."*

The deputy stopped the man, discovered that he had two active warrants out of Oklahoma, arrested him, and searched his belongings, finding drug paraphernalia and a gun. The man was charged in federal court with transporting a firearm, and moved to suppress the evidence. Earlier this summer, a magistrate held a hearing and recommended suppression. Last week, the district court adopted the magistrate's recommendation. The case is United States v. Hernandez, No. 16-05031-01-CR-SW-MDH,2017 WL 4391713 (W.D. Mo. July 25, 2017), adopted in full at 2017 WL 4401635 (W.D. Mo. Oct. 2, 2017), and it's a good one to keep in your suppression toolkit.

After emphasizing that "[r]ace alone is not sufficient to create reasonable suspicion," the court held that the discovery of the warrants did not purge the stop of its illegality even under the attenuation doctrine as applied in Strieff. The third prong of the attenuation doctrine asks about the flagrancy of law enforcement's misconduct. The officers in Strieff were merely negligent. But here the deputy's conduct "in stopping and seizing Defendant, with nothing more suspicious than the color of Defendant's skin, amounts to racial profiling."

And so go forth, and be not afraid to call racial profiling what it is.

*According to the 2010 census, 86 Hispanics or Latinos and 31 African Americans live in Lamar.

Sunday, October 8, 2017

Cert Grant Series: Football and Rental Car Searches

Football and beer and . . . . standing. The police suspect that some football fans may drink, and sobriety checkpoints tend to pop up close to stadiums (or stadia, for those of you care) around game time. Cars get searched, without warrants, without probable cause, or even without reasonable suspicion. Then it becomes really important who made it to the Super Bowl that year, as the cert petition in Byrd v. United States explains. 

The Byrd petition couched the circuit split in these terms--football attendees have different Fourth Amendment protections based on which teams made the Super Bowl that year. In some circuits, such as the Third where Byrd originates, a rental-car driver stopped at one of those checkpoints cannot challenge the search unless she is an authorized driver on the rental car agreement, even if  1) she is licensed, 2) has the renter's permission to drive, and 3) the renter is present in the car.  In other circuits, like the Ninth, where Arizona hosted Super Bowl 49,  it is a different story. 

This circuit split caught the Supreme Court's interest, and it wants to answer this question:
Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement?
Image result for rental car search by policeWe see this most often in interstate drug-interdiction 'traffic' stops. And we care about this question because the Tenth Circuit is on the wrong side of the split: "[A]n unlisted driver does not have a reasonable expectation of privacy in a rental car because he does not have the rental company’s permission to operate the car." United States v. Obregon, 748 F.2d 1371, 1374–75 (10th Cir. 1984). 

Oral argument is not yet scheduled.

Cert brought to you by the Federal Public Defender in MDPa.

-- Melody

Tuesday, October 3, 2017

Clean Slate Clearinghouse

Want to help a client expunge a record in Utah, Virginia, or Guam, but don't know where to start? The Council of State Governments (with help from a number of other organizations and agencies) has just launched the Clean Slate Clearinghouse to help support juvenile and adult criminal-record clearance around the country. The Clearinghouse's stated goals are:

•Providing people with criminal records and non-legal service providers with accurate, up-to-date information on record clearance and mitigation as well as contact information for legal service providers in all U.S. states and territories;

•Supporting legal service providers currently engaged in record clearance work and giving new legal service providers the tools and resources they need to develop record clearance programs; and
•Giving policymakers the information they need to compare their state’s record clearance policies to those of other states and to learn about best practices.

Check it out, and spread the word.

Image result for clean slate