Criminal Law Blog

CRIMINAL LAW: Search and Seizure—Warrantless Procurement of Cell Site Location Information

Posted by Mark V. Rieber on Wed, Sep 30, 2015 @ 13:09 PM

The Lawletter Vol 40 No 8

Mark Rieber—Senior Attorney, National Legal Research Group

     The Fourth Circuit recently held that the Government's warrantless procurement of historical cell site location information ("CSLI"), for an extended period of time, recorded by the defendant's cell phone service provider, was an unreasonable search in violation of the defendant's Fourth Amendment rights, even though the CSLI records were kept by cell phone companies in the ordinary course of business. United States v. Graham, Nos. 12-4659 & 12-4825, 2015 WL 4637931 (4th Cir. Aug. 5, 2015). The court stated that the examination of a person's historical CSLI can enable the Government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Id. at *8.

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Topics: search and seizure, criminal law, Mark V. Rieber, cell site location

CRIMINAL LAW: Supreme Court Allows Use of Three-Year-Old Child's Out-of-Court Statements About Abuse

Posted by Douglas C. Plank on Tue, Jul 28, 2015 @ 08:07 AM

The Lawletter Vol 40 No 6

Doug Plank—Senior Attorney, National Legal Research Group

     In a unanimous decision, the U.S. Supreme Court recently held in Ohio v. Clark, 135 S. Ct. 2173 (2015), that statements that children have made to teachers about possible abuse can be used as evidence at criminal trials arising from the alleged abuse, even if the children are not competent to testify in court.

     The facts in Clark showed that the preschool teacher of a three-year-old boy had noticed bruises on his body, and when she asked him how he had gotten the bruises, he told her that his mother's boyfriend had hit him when his mother was not home. The teacher notified the police, and the boyfriend was ultimately charged with child abuse. At the boyfriend's trial, the State introduced into evidence the statements that the child had made to the teacher, but the child did not testify, because of a statute precluding the testimony of children under 10 years old if they "appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." Id. at 2178 (quoting Ohio R. Evid. 601(A)). The trial judge determined that pursuant to this rule, the child was not competent to testify.

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Topics: criminal law, Douglas C. Plank, The Lawletter Vol 40 No 6, out-of-court statements, evidence of abuse, three-year-old

IMMIGRATION LAW: Analyzing State Drug Paraphernalia Offense for Purposes of Removal Under INA

Posted by Suzanne L. Bailey on Thu, Jul 9, 2015 @ 10:07 AM

The Lawletter Vol 40 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") provides:

     Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i).1 In Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the U.S. Supreme Court held that INA section 237(a)(2)(B)(i) was not triggered by a Kansas state law drug paraphernalia conviction for concealing four orange tablets in a sock. The defendant acknowledged that the tablets were unprescribed Adderall, but the criminal complaint did not identify the substance as Adderall. In so holding, the Court reversed the judgment of the Eighth Circuit Court of Appeals, Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), which had affirmed the decision of the Board of Immigration Appeals ("BIA") upholding the deportation order.

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Topics: removal, immigration, The Lawletter Vol 40 No 5, controlled substance, drug paraphernalia, Suzanne Bailey, Mellouli v. Lynch, deportation

CRIMINAL LAW: Search and Seizure—Probable Cause for Search in Light of Enactment of Medical Marijuana Law

Posted by Mark V. Rieber on Thu, Jun 11, 2015 @ 15:06 PM

The Lawletter Vol 40 No 4

Mark Rieber, Senior Attorney, National Legal Research Group

      In Commonwealth v. Canning, 28 N.E.3d 1156 (Mass. 2015), the court held as a matter of first impression that with the Commonwealth's new medical marijuana law ("the Act") in effect, if the police seek a warrant to search a property where they suspect an individual is cultivating or possesses marijuana, then they must first offer information sufficient to provide probable cause to believe that the individual is not properly registered under the Act to possess or cultivate the suspected substance. The court rejected the Commonwealth's argument that any cultivation of marijuana remained illegal even under the Act. That argument further asserted that to the extent that the Act permits a limited class of properly licensed or registered persons to grow marijuana, the existence of a license or registration is an affirmative defense for a defendant charged with unlawful cultivation to raise at trial—the Commonwealth is not obligated to disprove such a status in, or to conduct a search at the outset of, the investigation.

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Topics: warrant needed for probable cause, criminal, Mark V. Rieber, search warrant, The Lawletter Vol 40, No 4, medical marijuana law

CRIMINAL LAW: Search Warrants—Good-Faith Exception

Posted by Douglas C. Plank on Mon, Apr 13, 2015 @ 17:04 PM

The Lawletter Vol 40 No 2

Doug Plank, Senior Attorney, National Legal Research Group

      In a recent case from the U.S. Court of Appeals for the Second Circuit, the court held that a search warrant obtained to search the defendant's residence for evidence of child pornography was not supported by probable cause, because the information supplied by the affiant was stale. United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015). In seeking the warrant, the affiant referenced a single incident when someone had accessed thumbnail images of child pornography on the Internet from the defendant's Internet protocol address, which had occurred nine months earlier. The affidavit also included boilerplate language about how persons who look at and collect images of child pornography generally hold on to such images indefinitely. The court concluded that the evidence was equally consistent with an innocent user inadvertently stumbling upon a child pornography website, being horrified at what he saw, and promptly closing the window, and it held that absent any facts to show that the defendant was a collector of child pornography likely to hoard pornographic files, a single incident of access did not create a fair probability that child pornography would still be found on the defendant's computer months later.

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Topics: criminal law, search warrant, good-faith exception to exclusionary rule

CRIMINAL LAW: Prosecutorial Misconduct in Closing Argument

Posted by Suzanne L. Bailey on Wed, Mar 25, 2015 @ 11:03 AM

The Lawletter Vol 40 No 1

Suzanne Bailey, Senior Attorney, National Legal Research Group

     A recent en banc decision from the Supreme Court of Washington serves as a reminder of the bedrock upon which our criminal justice system stands, that is, that every defendant is entitled to a presumption of innocence, which is overcome only when the State proves guilt beyond a reasonable doubt as determined by an impartial jury based on evidence presented at a fair trial. In State v. Walker, 341 P.3d 976 (Wash. 2015) (en banc), the defendant was charged as an accomplice to aggravated first-degree premeditated murder, first-degree felony murder, first-degree assault, first-degree robbery, first-degree solicitation to commit robbery, and first-degree conspiracy to commit robbery in connection with an armored truck robbery at the Walmart where the defendant's live-in girlfriend was employed. The defendant was convicted of all charges, and he subsequently appealed, claiming, inter alia, that he had been denied a fair trial due to prosecutorial misconduct in closing argument.

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Topics: criminal, guilt beyond reasonable doubt, prosecutorial misconduct, presumption of innocence

CRIMINAL LAW: Punitive Effect of Retroactive Application of Sex Offender Registration Requirements

Posted by Mark V. Rieber on Thu, Mar 19, 2015 @ 09:03 AM

The Lawletter Vol 39 No 12

Mark Rieber, Senior Attorney, National Legal Research Group

      Typically, the courts find that the retroactive application of sex offender registration statutes does not violate the Ex Post Facto Clause, because such statutes are found to be nonpunitive. See, e.g., Smith v. Doe, 538 U.S. 84 (2003). Recently, however, the Supreme Judicial Court of Maine held that particular amended provisions of the Maine Sex Offender Registration and Notification Act ("SORNA"), as applied to Doe, the registrant in the case before it, Doe v. Anderson, 2015 ME 3, 2015 WL 149030 (not yet released for publication), were punitive and that their retroactive application to Doe violated the bill of attainder clause in the state constitution. The amended statutory provisions at issue in Doe were a retroactively added list of offenses to which SORNA applied, including the offense for which the registrant had been convicted, and an amendment that changed the triggering event for a duty to register: That duty no longer required a court determination but only a simple notification from the court or one of the named agencies.

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Topics: criminal, retroactive application, sex offender, registration requirements

CRIMINAL LAW: Search and Seizure—Cell Phone Location Tracking

Posted by Noel King on Mon, Dec 29, 2014 @ 10:12 AM

The Lawletter Vol 39 No 10

Doug Plank, Senior Attorney, National Legal Research Group

    The Florida Supreme Court recently held that the warrantless tracking of an individual through the use of real-time cell site location information was a violation of that individual's rights under the Fourth Amendment. In Tracey v. State, No. SC11-2254, 2014 WL 5285929 (Fla. Oct. 16, 2014), the defendant had been convicted of possession of cocaine and other offenses after police officers apprehended him while he was transporting the cocaine by automobile. The evidence showed that the officers had been able to monitor the movements of the defendant and his accomplice, who was located in another city, by following the cell site location information given off by their cell phones as the defendant placed calls to the accomplice. By using the information showing the location of the accomplice, the officers were able to establish where to set up surveillance for the moment that the defendant would meet the accomplice and exchange the cocaine.

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Topics: Fourth Amendment, search and seizure, cell phone, warrantless, tracking

CRIMINAL LAW: Warrantless Search of Cell Phones

Posted by Gale Burns on Tue, Aug 12, 2014 @ 12:08 PM

The Lawletter Vol 39 No 6

Doug Plank, Senior Attorney, National Legal Research Group

     In what some commentators have described as the most important criminal law decision of its 2013-2014 Term, the U.S. Supreme Court ruled unanimously in Riley v. California, 134 S. Ct. 2473 (2014), that before police may search the contents of a cell phone seized after an arrest, they must first obtain a search warrant. In reaching this determination, which is a departure from the Court's general rule that a person's belongings may be searched without a warrant incident to an arrest of that person, the Court found that "[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person." Id. at 2489. In fact, the Court noted, many cell phones are actually minicomputers that also happen to have the capacity to be used as a telephone, and they could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. The Court found that because cell phones are both a repository of sensitive personal data, with immense storage capacity, and a portal to private records stored on remote servers, they simply could not fairly be said to be analogous to physical containers under the search-incident-to-arrest rule.

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Topics: legal research, cell phone, warrantless search, U.S. Supreme court, Doug Plank, criminal law, not analogous to physical containers, Riley v. California, only case-specific exceptions applicable

CRIMINAL LAW: Driving Under the Influence of a Proscribed Drug or "Its Metabolite"

Posted by Gale Burns on Tue, Jul 22, 2014 @ 10:07 AM

The Lawletter Vol 39 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Arizona is one of seven states that make it unlawful for a driver to be in actual physical control of a motor vehicle while there is a proscribed drug or "its metabolite" in the operator's body. Ariz. Rev. Stat. § 28-1381(A)(3). (The other six zero-tolerance jurisdictions are Delaware, Georgia, Indiana, Minnesota, Pennsylvania, and Utah. Joshua C. Snow, The Unconstitutional Prosecution of Controlled Substance Metabolites Under Utah Code § 41-6a-517, 2013 Utah L. Rev. OnLaw 195, 212 n.14 (2013).) In State ex rel. Montgomery v. Harris, 322 P.3d 160 (Ariz. 2014), the Supreme Court of Arizona was asked to determine whether the phrase "its metabolite" includes Carboxy-Tetrahydrocannabinol ("Carboxy-THC"), a nonimpairing metabolite of marijuana, which is a drug proscribed by statute. The court concluded that it does not.

     In Montgomery, the driver was stopped for speeding and making unsafe lane changes. After admitting to smoking some "weed" the night before, the driver voluntarily submitted to a blood test that revealed Carboxy-THC in his blood. He was charged with driving under the influence of a drug, in violation of section 28-1381(A)(1), and driving while a metabolite of a proscribed drug was in his body, in violation of section 28-1381(A)(3). The justice court dismissed the charge based on the presence of "its metabolite," and the State voluntarily dismissed the driving-under-the-influence charge. The superior court affirmed the justice court, but the court of appeals reversed, finding that the statute included the metabolite Carboxy-THC and that inclusion was not overbroad. State ex rel. Montgomery v. Harris ex rel. County of Maricopa, 301 P.3d 580 (Ariz. Ct. App. 2013). The state supreme court vacated the opinion of the court of appeals and affirmed the dismissal of the "its metabolite" charge, with one justice dissenting.

     The court found "its metabolite" to be ambiguous because it could mean all of a proscribed drug's metabolites, some of its metabolites, or only metabolites that cause impairment. The driver argued that the phrase referred to only Hydroxy-THC, the initial product of the metabolism of THC. The State insisted that the statute referred to all metabolites, including the nonimpairing Carboxy-THC, which was tested for. Significantly, the impairing Hydroxy-THC does not remain in the blood for very long and quickly converts to Carboxy-THC, which is why the State tests for Carboxy-THC but not for Hydroxy-THC. Carboxy-THC, on the other hand, can remain in the body for as many as 28 to 30 days after the ingestion of marijuana.

     Looking to the legislative history, which demonstrated an intent to prevent impaired driving, the court concluded that "its metabolite" is limited to metabolites capable of causing impairment. To hold otherwise could lead to the absurd result that a driver could be found guilty regardless of how long the metabolite remained in his or her body or whether it had an impairing effect. Furthermore, given that Arizona legalizes marijuana for medicinal purposes, the State's overinclusive reading could criminalize legitimate use after the impairing effects have worn off. Finally, a broad reading of "its metabolite" could allow the prosecution of an individual who drives after ingesting a legal substance that shares a nonimpairing metabolite with a proscribed substance.

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Topics: legal research, John Buckley, criminal law, proscribed drug, metabolite, zero tolerance, Arizona Supreme Court, State ex rel. Montgomery v. Harris, "metabolite" definition ambiguous in sta, driving under the influence, narrow reading of statute, The Lawletter Vol 39 No 5

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