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    Criminal Law Blog

    Mark Rieber

    Recent Posts

    Fourth Amendment Applies to Cell Site Location Information

    Posted by Mark Rieber on Mon, Nov 26, 2018 @ 11:11 AM

    Mark Rieber, Senior Attorney, National Legal Research Group

     

            Cell-site location information ("CSLI") is location information generated by cellular phone providers that indicates which cell tower a particular phone was communicating with when a communication was made. United States v. Curtis, No. 17-1833, 2018 WL 4042631, at *1 (7th Cir. Aug. 24, 2018). It is capable of pinpointing a phone's location within 50 meters. Id. Because cell phones are in constant communication with the nearest cell siteoften affixed to a cell towerthey can collect CSLI as frequently as several times a minute. Id.

     

                In June 2018, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court extended Fourth Amendment protection to CSLI and held that the government conducts a "search" when it accesses historical cell phone records that provide a comprehensive chronicle of the user's past movements. The Court concluded that the government must generally obtain a warrant supported by probable cause before acquiring such records and rejected application of the "third-party doctrine," even though the records at issue were held by a wireless carrier.

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    Topics: Mark Rieber, criminal procedure, cell-site location information, Fourth Amendment

    Was Traffic Stop Unlawfully Prolonged in Violation of Rodriguez?

    Posted by Mark Rieber on Wed, May 9, 2018 @ 09:05 AM

    Mark Rieber—Senior Attorney

                Ever since Rodriguez v. United States, 135 S. Ct. 1609 (2015), courts have had to decide whether evidence discovered during routine traffic stops should be suppressed on the ground that the police unreasonably prolonged the traffic stop, even for a short time, to investigate matters unrelated to the purpose of the stop, and what should be considered matters unrelated to the purpose of the stop.  A good example is the recent decision in Lerma v. State, No. PD-1229-16, 2018 WL 525427 (Tex. Crim. App. Jan. 24, 2018), in which the court reversed the Court of Appeals’ decision suppressing evidence discovered on a passenger of a vehicle during a routine traffic stop.  Contrary to the Court of Appeals’ holding, the Court of Criminal Appeals (Texas' highest court for criminal cases) determined that the officer conducting the traffic stop had reasonable suspicion to pat-down the passenger and that by questioning the passenger and patting him down, the officer did not unduly prolong the stop in violation of the holding in Rodriguez or the holding in St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007), upon which the Court of Appeals relied. Read More

    Topics: criminal, prolonged traffic stop, reasonable suspicion

    Digital Cameras Held Outside Scope of Search Incident to Arrest Exception

    Posted by Mark Rieber on Thu, Oct 26, 2017 @ 11:10 AM

    Mark Rieber, Senior Attorney, National Legal Research Group 

                In Commonwealth v. Mauricio, 477 Mass. 588, 80 N.E.3d 318 (2017), the court held that, under the Massachusetts Constitution, the search of data contained in digital cameras falls outside the scope of the "search incident to a lawful arrest" exception to the warrant requirement.  In so holding, the court found the reasoning set forth in Riley v. California, 134 S. Ct. 2473 (2014), applicable to digital cameras.  In Riley, the U.S. Supreme Court held that the search incident to arrest exception did not apply to cell phones. Riley found that applying the exception to the search of digital data on a cell phone served neither of the two justifications for the exception: prevention of harm to officers and prevention of destruction of evidence. Riley also recognized the privacy interests at stake, since cell phones "place vast quantities of personal information literally in the hands of individuals." Id.  at 2485.

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    Topics: criminal law, search of digital cameras, outside scope of search incident to arrest

    CRIMINAL LAW: Texas Good-Faith Exception to Exclusionary Rule Applied to Illegal Drug Sniff

    Posted by Mark Rieber on Mon, Jun 12, 2017 @ 10:06 AM

    Mark Rieber, Senior Attorney, National Legal Research Group

                Generally, a lawful search warrant may not be procured by the use of illegally obtained information.  E.g., State v. Cuong Phu Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 819 (2016).  As a matter of first impression, however, the Texas Court of Criminal Appeals held that the Texas good-faith exception to the statutory exclusionary rule applied to a search executed pursuant to a search warrant that was based on information obtained from an illegal drug sniff.  McClintock v. State, No. PD-1641-15,2017 WL 1076289 (Tex. Crim. App. Mar. 22, 2017).  The drug-sniffing dog had been brougcrimcht by police to the door of the defendant's upstairs residence, where the dog alerted police to the presence of drugs.  This information was used as the basis for a search warrant for the residence, and there would have been no probable cause without the information.  Execution of the warrant resulted in the seizure of marijuana.  While the case was pending on appeal, the United States Supreme Court held that such dog sniffs constituted an unconstitutional search under the Fourth Amendment.  See Florida v. Jardines, 133 S. Ct. 1409 (2013).  Prior to the holding in Jardines, according to McClintock, it was not clear that the dog sniff used in McClintock was illegal. 

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    Topics: criminal law, illegal drug sniff, good-faith exception to exclusionary rule

    CRIMINAL LAW: Sentencing—New Rule in Johnson Was Substantive as Applied to Advisory Sentencing Guidelines

    Posted by Mark Rieber on Wed, Feb 15, 2017 @ 11:02 AM

    The Lawletter Vol 42 No 1

    Mark Rieber, Senior Attorney, National Legal Research Group

          In Johnson v. United States, 135 S. Ct. 2551 (2015), the U.S. Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), which defines a "violent felony" to include a felony that "involves conduct that presents a serious potential physical injury to another," 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. The Supreme Court subsequently announced that the rule in Johnson was "a new substantive rule that has retroactive effect in cases on collateral review." Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

          In Carpio v. United States, No. C16-0647JLR, 2016 WL 6395192 (W.D. Wash. Oct. 28, 2016), the court applied the holdings in Johnson and Welch to the defendant's claim, in a 28 U.S.C. § 2255 petition challenging his U.S. Sentencing Guidelines sentence, that the identically worded residual clause in U.S.S.G. § 4B1.2(a), defining "crime of violence," used to enhance the defendant's sentence, was unconstitutionally vague. The court in Carpio held that the Johnson holding applied with equal force to the residual clause in section 4B1.2(a) of the Sentencing Guidelines and, therefore, it was unconstitutionally vague.

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    Topics: criminal law, Mark V. Rieber, advisory sentencing guidelines, Johnson v. United States

    CONSTITUTIONAL LAW: Use of Cell-Site Simulator Constitutes a Search

    Posted by Mark Rieber on Mon, Oct 3, 2016 @ 17:10 PM

    Mark Rieber, Senior Attorney, National Legal Research Group

         In United States v. Lambis, No. 15CR734, 2016 WL 3870940 (S.D.N.Y. July 12, 2016), a federal court, apparently for the first time, suppressed evidence obtained as the result of the warrantless use of a cell-site simulator to locate a target's cell phone. The court explained that a cell-site simulator—sometimes referred to as a "StingRay," "Hailstorm," or "TriggerFish"—is a device that locates cell phones by mimicking the service provider's cell tower (or "cell-site") and forcing cell phones to transmit "pings" to the simulator. The device then calculates the strength of the "pings" until the target phone is pinpointed.

         The court's holding relied mainly on Kyllo v. United States, 533 U.S. 27 (2001), which held that a Fourth Amendment search occurred when government agents used a thermal-imaging device to detect infrared radiation emanating from a home. In Kyllo, the Supreme Court reasoned that "[w]here . . . the Government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a search warrant." Id. at 40.

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    Topics: constitutional law, Mark V. Rieber, cell-site simulator, warrentless use, StingRay

    CRIMINAL LAW: Search and Seizure—Traffic Stop—Length of Detention

    Posted by Mark Rieber on Tue, May 3, 2016 @ 11:05 AM

    The Lawletter Vol 41 No 4

    Mark Rieber, Senior Attorney, National Legal Research Group

         In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the U.S. Supreme Court recently stressed that a seizure justified only by a police-observed traffic violation becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. The stop may not exceed the time needed to handle the matter for which the stop was made. In Rodriguez, the issue was raised in the context of whether the police unnecessarily extended the traffic-violation stop to conduct a dog sniff of the exterior of the vehicle for drugs.

         Lower courts applying Rodriguez have had the difficult task of determining whether a vehicle stop for a traffic violation was unnecessarily and unlawfully prolonged by police so that they could pursue unrelated suspicions, usually related to illegal drugs. While the courts often observe that there is no rigid time limit for determining when a detention has lasted longer than necessary to effectuate the purposes of the stop, they nevertheless often look to the total time of the stop and the length of what is deemed the unnecessary delay in determining whether the police conduct was lawful.

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    Topics: search and seizure, criminal law, Mark V. Rieber, length of detention, traffic stop

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