The Lawletter Vol 46 No 7

Mark Rieber—Senior Attorney, National Legal Research Group

            In Doe v. Wasden, No. 1:20-CV-00452-BLW, 2021 WL 4129144 (D. Idaho Sept. 8, 2021), appeal filed (9th Cir. Oct. 1, 2021), the court granted the two offenders' (John Doe and Randall Menges) motion for preliminary injunction challenging the requirement of their registration for the Idaho Sex Offender Registry because of Doe's conviction under a Crime Against Nature statute and Menges's conviction under Idaho's Crime Against Nature statute for engaging in consensual oral or anal sex. The court held that both offenders were likely to prevail on their claims that Idaho was violating their constitutional rights, which included a substantive due process claim, a procedural due process claim, and an equal protection claim. The court found that Idaho could have no legitimate interest in requiring offenders to register as sex offenders for engaging in private, consensual sexual acts and that the offenders had a protected liberty interest in both engaging in private consensual sexual activity and being free from the burdens of sex offender registration.

The Lawletter Vol 46 No 5

Mark Rieber—Senior Attorney, National Legal Research Group

            In Andrus v. Texas, 140 S. Ct. 1875 (2020), the Supreme Court vacated the opinion of the Texas Court of Criminal Appeals denying habeas relief to the petitioner challenging his death sentence and claiming that his counsel was ineffective in failing to investigate and present mitigating evidence at the penalty phase of trial. At the guilty phase of defendant's capital murder trial, defense counsel essentially conceded guilt and indicated he would "be fighting" at the punishment phase. Counsel, however, presented limited evidence at sentencing and failed to investigate and overlooked "vast tranches of mitigating evidence." Id. at 1881. Counsel also failed to investigate the State's aggravating evidence. At the habeas hearing, counsel offered no tactical rationale for such failure, which was "all the more alarming given that counsel's purported strategy was to concede guilt and focus on mitigation." Id. at 1883. The Court easily found that counsel was ineffective at the penalty phase, despite the Texas state court's summary dismissal of such claim.

The Lawletter Vol 42 No 8

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.

            Mauricio found that these same considerations also applied to digital cameras and thus determined that the reasoning of Riley presented a compelling basis to exclude digital cameras from the reach of the search incident to arrest exception. The court rejected the Commonwealth's argument that Riley did not apply because digital cameras, lacking the ability to function as computers, were not analogous to cell phones for Fourth Amendment purposes. The court observed that although digital cameras do not allow storage of information as diverse and far ranging as a cell phone, "they nevertheless possess the capacity to store enormous quantities of photographs and often video recordings, dating over periods of months and even years, which can reveal intimate details of an individual's life." Mauricio, 477 Mass. at 593, 80 N.E.3d at 323.

The Lawletter Vol 42 No 4

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 (2Tex. Crim. App. Mar. 22, 2017).  The drug-sniffing dog had been brought 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. 

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 § 4B1.2(a) of the Sentencing Guidelines and, therefore, it was unconstitutionally vague.

The Lawletter Vol 41 No 8

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.

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. In State v. Linze, No. 42321, 2016 WL 90669 (Idaho Ct. App. Jan. 8, 2016), the court held that where the police extended a routine traffic stop (that lasted 19 minutes) by only approximately another two and a half minutes to conduct a dog sniff (or canine sweep) of the vehicle, such delay was unlawful and violated the driver's Fourth Amendment rights. The court therefore ruled that the illegal drugs subsequently seized from the vehicle after the drug dog alerted on the vehicle during the canine sweep had to be suppressed.

The Lawletter Vol 40 No 12

Mark Rieber, Senior Attorney,  National Legal Research Group

     Two recent opinions in Arizona have come to different conclusions about the significance of the smell of marijuana in the determination of probable cause in light of the passage of the Arizona Medical Marijuana Act ("AMMA"), albeit in very different factual situations. In State v. Sisco, 359 P.3d 1 (Ariz. Ct. App. 2015) the court held that with the passage of the AMMA, the mere scent of marijuana coming from a warehouse, standing alone, was insufficient to provide probable cause for the issuance of a search warrant to search the warehouse. The court observed that its holding accorded "with well-reasoned jurisprudence from several other jurisdictions." Id. at 8, ¶ 29 (citing cases).

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.

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.