Jason Holder, Senior Attorney, National Legal Research Group

            Early in the morning on March 16, 2008, the D.C. Police received a complaint of loud music coming from a house in Northeast D.C. District of Columbia v. Wesby, 138 S. Ct. 577, 583 (2018). When officers responded to the house, they found it in a state of disarray with beer bottles and cups of liquor all over. Id. The floor was so dirty, the officers noted, "that one of the partygoers refused to sit on it while being questioned." Id. Although it had working electricity and plumbing, the house contained no furniture aside from a few folding chairs. A further inspection of the house found the living room transformed into "a makeshift strip club," and "more debauchery upstairs." Id.

Jason Holder, Senior Attorney, National Legal Research Group

      In United States v. Carey, 836 F.3d 1092, 1093 (9th Cir. 2016), federal agents secured a wiretap order under the Wiretap Act, 18 U.S.C. §§ 2510-2522. The order was based upon evidence that Ignacio Escamilla Estrada ("Escamilla") used the number to smuggle and distribute drugs. Carey, 836 F.3d at 1093. During the seven-day wiretap, the agents realized that Escamilla was not the one using the phone. Id. Nevertheless, believing that those on the phone may be connected to Escamilla, the agents continued listening. Id. Authorities ultimately identified Michael Carey as the unknown speaker. Id. The investigation revealed that Carey was not involved with Escamilla. Id. at 1094.

     Carey moved to suppress all of the evidence derived from the use of the wiretaps, arguing that the government had unlawfully relied on the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Carey. Id. The district court denied Carey's motion, explaining that (1) the government had complied with the statute for the wiretap order against Escamilla, and (2) that there was no requirement for a separate showing of necessity once the agents concluded that T-14 was not used by Escamilla because the agents reasonably believed that the callers and calls might be affiliated with Escamilla or other offenses. Id. at 1095.

The Lawletter Vol 41 No 8

Jason Holder, Research Attorney, National Legal Research Group

     In State v. Loomis, 2016 WI 68, 881 N.W.2d 749, the Supreme Court of Wisconsin upheld the use of risk assessment tools at sentencing against a due process challenge. In doing so, however, the Loomis court noted that such tools are consistent with due process protections only if they are used properly and in accordance with certain limitations. Additionally, the court may have provided a possible road map for future challenges to the use of risk assessment tools at sentencing.

     Loomis had been charged with a number of offenses stemming from a drive-by shooting and ultimately pleaded guilty to two of the lesser offenses. A presentence investigation report was prepared and included a Correctional Offender Management Profiling for Alternative Sanctions ("COMPAS") risk assessment. In ruling out probation, the circuit court noted that it did so because "of the seriousness of the crime and because your history, your history on supervision, and the risk assessment tools that have been utilized, suggest that you're extremely high risk to re-offend." Id. ¶ 19, 881 N.W.2d at 755.