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Archive: 2024

May

• Stinging Back: Resisting Government Surveillance of Cellphones by Anthony Accurso (p 1)
• Cellular Roaming’s Inadequate Security by Michael Thompson (p 14)
• California AB 2773 Requires Police to State Reason for Traffic Stops Before Questioning by Jo Ellen Nott (p 17)
• Fourth Circuit: Maryland’s First-Degree Assault Statute Is Indivisible so Conviction Is Not an ACCA Predicate for Sentencing Enhancement Purposes by Douglas Ankney (p 18)
• Report Finds Bad Forensic Evidence Leads to More Wrongful Convictions and Establishes Forensic Errors Typology by Matthew Clarke (p 19)
• Washington Supreme Court: Nonexceptional Consecutive Terms of ‘Community Custody’ May Not Exceed Aggregate Term of 24 Months by Sam Rutherford (p 20)
• SCOTUS: Reiterates Jury Verdict of Acquittal for Any Reason Bars Retrial Under Double Jeopardy Clause of Fifth Amendment by Richard Resch (p 22)
• California Court of Appeal: Petitioner Has Constitutional Right to Be Present at Evidentiary Hearing Under Felony Murder Resentencing Law by David Reutter (p 24)
• Tenth Circuit: Plea Not Knowing and Voluntary Where Plea Counsel Materially Misrepresented Defendant’s Right to Impartial Jury Selected Through Racially Nondiscriminatory Means by Douglas Ankney (p 30)
• More Facial Recognition Failures by Michael Thompson (p 31)
• Use of Solitary Confinement on the Rise in ICE Facilities by Anthony Accurso (p 33)
• New York Court of Appeals: SORA Designation Violates Defendant’s Due Process Rights Where Crime Involved No Sexual Contact or Motivation and Defendant Was Not a Sex Offender and Posed No Risk of Sexual Threat by Douglas Ankney (p 34)
• The Death of the Savings Clause by Dale Chappell (p 37)
• Retraction: ‘Federal Habeas Corpus: The Savings Clause Remedy for Federal Prisoners’ by Dale Chappell (p 37)
• Facial Recognition’s Distorted View by Michael Thompson (p 40)
• Massachusetts Supreme Judicial Court Announces Defendants Under Age 21 Ineligible for LWOP Sentences by Douglas Ankney (p 42)
• New Jersey Supreme Court Announces Extension of Eyewitness Identification Safeguards of Henderson to Pretrial Preparation Sessions and Provides Framework for Showing Photos During Pretrial Phase by Douglas Ankney (p 44)
• Ninth Circuit Announces Adoption of ‘Premises Rule’ for Co-Tenant Consent-to-Search Analysis, Holds Co-Tenant’s Consent Invalid Where Defendant Instructed Co-Tenant Not to Allow Police Entry in Their Presence by Sam Rutherford (p 46)
• Googling Your Privacy by Michael Thompson (p 49)
• News in Brief (p 50)

April

• Disgraced NYC Council Candidate Gets Slap-on-the-Wrist Sentence by Jordan Arizmendi
• Massachusetts State Police Facing Possible Class Action Lawsuit for Illegal Recordings (p 49)
• Electronic Monitoring: An Alternative to Incarceration or a Troubling Extension of Punishment? by David Reutter (p 1)
• Cellebrite Asks Law Enforcement Clients to Keep Its Phone Hacking Tech Secret by Jo Ellen Nott (p 11)
• California Court of Appeal: Traffic Stop Prolonged for Drug Dog Sniff Search Unrelated to ‘Mission’ of Stop Violates Fourth Amendment by Anthony Accurso (p 12)
• Maine Supreme Court: Defense Counsel Ineffective for Opening Door to Otherwise Inadmissible Evidence of Bad Character by Matthew Clarke (p 14)
• Eighth Circuit Announces ‘Categorical Approach’ Applies to SORNA Tier Analysis by Douglas Ankney (p 16)
• Pharmacies Are Giving Your Prescription Data to Police Without a Warrant by Anthony Accurso (p 17)
• What Happens When Prosecutors Offer Opposing Versions of the Truth? by Ken Armstrong (p 21)
• New York Court of Appeals Declines to Adopt Per Se Rule That Handcuffed Person Is Always ‘In Custody’ for Miranda Purposes, but Holds the Handcuffed Defendant Was ‘In Custody’ and Suppress Incriminating Statements by Douglas Ankney (p 24)
• Research Shows It Makes Sense to Hire Individuals with Criminal Records by Jo Ellen Nott (p 25)
• Fifth Circuit: Admission of DHS Investigation Form G-166F at Trial Where Preparer of Form Did Not Testify Violates Confrontation Clause and Rule Against Hearsay by Douglas Ankney (p 26)
• AI Disrupts Established Forensic Fingerprint Analysis—Not Every Fingerprint Is Unique by Jo Ellen Nott (p 27)
• Does the Fourth Amendment Protect Cellphones at the Border? by Douglas Ankney (p 28)
• New York Governor Signs Law Sealing Millions of Criminal Records From Public View by Douglas Ankney (p 30)
• Massachusetts Supreme Judicial Court Announces Constructive Denial of Right to Counsel Where Defense Counsel Sleeps for Significant Portion or During Important Aspect of Trial by David Reutter (p 31)
• California Attorney General Issues Memo Prohibiting Out-of-State Sharing of ALPR Data by Anthony Accurso (p 33)
• Utah Supreme Court Announces Communication of Cellphone Passcode Protected by Fifth Amendment and Rules Advising Jury of Defendant’s Refusal to Disclose Passcode Violates Privilege Against Compelled Self-Incrimination by Anthony Accurso (p 34)
• Tracking Your Cellphone Might Be Easier Than You Think by Michael Thompson (p 35)
• Vermont Supreme Court Announces Prejudice Determination for IAC Claim Based on Rejected Plea Offer Limited to Evidence Available at Time Plea Considered—Not Any Subsequent Evidence by David Reutter (p 36)
• Time Served Under the First Step Act: Reduction, Not Revolution by Jo Ellen Nott (p 37)
• One Year of New Orleans Police Department Facial Recognition Data by Michael Thompson (p 39)
• Police Bodycams: If You Film It … by Michael Thompson (p 40)
• The FBI’s Rapidly Expanding DNA Database by Anthony Accurso (p 41)
• Federal Habeas Corpus: Understanding Second or Successive Petitions for State Prisoners by Dale Chappell (p 42)
• ‘Trail ’Em, Nail ’Em, and Jail ’Em’: Issues Private Probation and Parole by Jo Ellen Nott (p 44)
• New York Court of Appeals: Admission of Prior Bad Acts Evidence to Prove Propensity to Commit Crime Harmful Error by David Reutter (p 45)
• Potential Dangers of Medical Monitors by Michael Thompson (p 46)
• FBI’s Bias for Keywords by Carlo Difundo (p 46)
• Crime Scene Context: Bridging the Gap Between Evidence and Reconstruction by Jo Ellen Nott (p 47)
• Taxpayers Foot the Bill for Police Training on How to Violate Constitutional Rights by Anthony Accurso (p 48)
• ‘Blatant Miscarriage of Justice’: Oklahoma Man Exonerated of Wrongful Conviction After 35 Years Despite Former Prosecutor’s Attempt to Perpetuate Injustice by Douglas Ankney (p 50)
• News in Brief (p 50)

March

• Understanding Fusion Centers by Michael Thompson (p 1)
• LexisNexis Aids Customs and Border Patrol to Flaunt Fourth Amendment by Anthony Accurso (p 11)
• Unconscious Bias: Facial Features Can Influence Life-or-Death Decisions in Verdicts by Jo Ellen Nott (p 11)
• Lung Float Test: Junk Science Used to Convict Women of Murder by David Reutter (p 12)
• Watchlisted: You’re Probably Already on a Government Extremism List by Nisha Whitehead, John W. Whitehead (p 14)
• Studying Ant Bites on Cadavers May Advance Criminal Investigations by Douglas Ankney (p 16)
• Illinois Supreme Court Announces § 9-1.2(d) Sets Range of Sentences for Intentional Homicide of Unborn Child but Does Not Convert Offense Into Murder for Life-Sentence Enhancement by Douglas Ankney (p 17)
• Seventh Circuit Orders District Court to Hold Evidentiary Hearing Where Record Insufficient to Permit Review of State Prisoner’s Section 2254 Habeas Petition Alleging Ineffective Assistance of Counsel by Douglas Ankney (p 18)
• Nebraska Supreme Court Announces Probation Search Unlawful When Conducted After Original Term Expired and Before Hearing on Extending Term by Matthew Clarke (p 19)
• Pennsylvania Supreme Court: Failure to Disclosure Mental Health Report Showing Key Witness Was a Sociopath Constitutes Brady Violation That Prejudiced Defendant by Anthony Accurso (p 20)
• Audit Finds LAPD’s Frivolous Use of Helicopters Flunks Cost/Benefit Analysis by Douglas Ankney (p 21)
• The Supreme Court’s Forensic Follies by Michael Thompson (p 22)
• Texas Court of Criminal Appeals Announces Correct Computation of Time for Purposes of Determining When Statute of Limitations Has Run for Returning Indictment by Douglas Ankney (p 23)
• Research Paper Reveals Laypeople Have Insufficient Understanding of False Confessions by Examining Prior Research Based on Surveys and Mock Juries by David Reutter (p 24)
• Preliminary Analysis of Recidivism Data After Three Years Under First Step Act Is Promising but Inconclusive by Jo Ellen Nott (p 28)
• California Court of Appeal: Petitioner Has Constitutional Right to Be Present at Hearing to Determine Facts Surrounding Felony Murder Charges for Possible Resentencing Under § 1172.6 by David Reutter (p 28)
• Interactive Lineups Are a Promising New Tool to Improve Accuracy of Suspect Identification by Eyewitnesses by Jo Ellen Nott (p 29)
• New York Court of Appeals Reverses Conviction Because Testifying Criminalist Not Shown to Have Requisite Involvement in DNA Testing Process and Provides Guidance to Avoid Future Sixth Amendment Confrontation Clause Violations by Anthony Accurso (p 30)
• Fourth Circuit: Defendant Entitled to Discovery and Evidentiary Hearing on § 2255 Petition to Withdraw Guilty Plea Because It Was Not Knowingly and Voluntarily Made by Richard Resch (p 31)
• The Potential for Soil Dust Analysis in Forensics by Anthony Accurso (p 33)
• First Circuit: Miranda Waiver Not Valid Where Interrogating Officer Answered ‘No’ to Defendant’s Question — ‘None of this can be used against me, can it?’ by Douglas Ankney (p 33)
• Oregon Supreme Court Announces ‘Escape Clause’ of Postconviction Relief Statute’s SOL Applies to Severe Mental Impairments During Limitations Period by David Reutter (p 35)
• California Court of Appeal Reverses Denial of Full Resentencing Under SB 483 by Matthew Clarke (p 36)
• ‘How The Government Created a Terrorist’: FBI-Manufactured Crimes Reveal Urgent Need for Reforms by Douglas Ankney (p 37)
• Improvements to Decertification Procedure for Law Enforcement Officers Guilty of Excessive Force Urgently Needed by Douglas Ankney (p 38)
• Minnesota Supreme Court Holds Prosecutor’s Repeated Statements During Closing Arguments That Defendant ‘No Longer Has Presumption of Innocence’ Constitutes Plain Error, Requiring a New Trial by David Reutter (p 38)
• New York Court of Appeals Announces Traffic Stop of Bicyclist Is Seizure Under Both Fourth Amendment and State Constitution Requiring Reasonable Suspicion of Crime or Probable Cause of Traffic Violation by Richard Resch (p 40)
• Amazon Ring Curbs Police Access to Doorbell Camera Footage—But Privacy Concerns Remain by Jo Ellen Nott (p 43)
• Foundations of Firearms Audio Forensics Built by Dr. Robert Maher Will Continue to Be Important Forensic Tool as More Recording Devices Are Present at Crime Scenes by Jo Ellen Nott (p 43)
• FBI Searches of NSA Data Extended Until April, Despite Admission of Unconstitutionality by Anthony Accurso (p 44)
• Suspicion of Government Surveillance Increasing by Anthony Accurso (p 44)
• Cops’ Sky-High Hopes by Michael Thompson (p 45)
• DEA and Police Use Pretense of Consent Searches to Effectively Steal Cash From Airport Travelers by Anthony Accurso (p 46)
• A Legal Argument Against Government Purchase of Location Data by Anthony Accurso (p 48)
• North Carolina Supreme Court: Outstanding Warrant for Driver Who Fled Accident Scene Does Not Authorize Inventory Search of Disabled Vehicle by Anthony Accurso (p 49)
• Cops Just Love Secret Metadata Collection by Michael Thompson (p 50)
• News in Brief (p 50)

February

• Geofence Warrants: The Mass Location Surveillance and Privacy Threat Created by Google May Be Eliminated by Its Creator by Anthony Accurso (p 1)
• Minnesota Supreme Court Announces Odor of Marijuana Alone Emanating From Vehicle Insufficient for Probable Cause to Search Under Automobile Exception by Anthony Accurso (p 13)
• Michigan Supreme Court: Defendant’s Statements Involuntary and Inadmissible by Douglas Ankney (p 14)
• Tales From the ‘Tails’ of Bloodstains by Douglas Ankney (p 15)
• New Jersey Supreme Court Excludes CSLI Testimony Based on Agent’s ‘Rule Of Thumb’ Method for Determining Defendant’s Location by Anthony Accurso (p 16)
• New Night-Vision Capable Drone Marketed to Police by Anthony Accurso (p 17)
• Missouri Supreme Court Orders Dismissal of Pending Charges Where Trial Court Failed to Bring Prisoner to Trial Within 180-Day Limitations Period Provided for in ‘Interstate Agreement on Detainers’ by Douglas Ankney (p 18)
• Third Circuit: Defendant Not on Rental Agreement Had Reasonable Expectation of Privacy in Car Because He Had Dominion and Control of Car Where Renter Gave Keys to Him, He Was in Possession of Them Upon Arrest, and Car Parked Nearby by Anthony Accurso (p 20)
• NYPD Has Spent Millions of Dollars on Social Media Analysis Tools by Jo Ellen Nott (p 21)
• New York Court of Appeals: Forensic Findings Establishing Possible Alternative Cause of Injuries in Sex-Crime Prosecution Admissible Under ‘Interest of Justice’ Exception to Rape Shield Law by David Reutter (p 22)
• The Diminishment of Miranda Is Leading to False Confessions and Conviction of Innocents by David Reutter (p 24)
• FBI Works to Expand Court Authority for Its Offensive Cyber Operations by Anthony Accurso (p 26)
• Fifth Circuit Announces Revocation Judgments for Violation of Supervised Release Vacated Because Underlying Sentence Vacated by Anthony Accurso (p 26)
• Third Circuit: Defense Counsel Ineffective Under Strickland Where Counsel Sat Silent After Judge Threatened to Charge Witness With Perjury Unless Testimony Changed by Douglas Ankney (p 28)
• Study Raises Alarms About Inaccuracies and Bias in Gun Forensics Reporting by Jo Ellen Nott (p 29)
• Ninth Circuit Announces District Courts Must Either Orally Pronounce All Discretionary ‘Standard’ Conditions of Supervised Release in the Presence of Defendant or Provide Conditions in Writing Prior to Sentencing by Douglas Ankney (p 30)
• The Problem with Some Non-Carceral Punishments by Carlo Difundo (p 31)
• Researchers Find Fiber Evidence Lasts Longer Underwater Than Previously Thought by Jo Ellen Nott (p 33)
• Who Let the Dogs Out? Robotic Dogs Are the Newest (and Scariest) Surveillance Tech in U.S. Police Departments by Jo Ellen Nott (p 34)
• After Ohio Becomes 24th State to Legalize Recreational Marijuana, What Next? by Jordan Arizmendi (p 35)
• DHS Allows CBP and ICE Officers to Create Fake Social Media Profiles to Track Subjects of Interest and Conduct Investigations by Jo Ellen Nott (p 35)
• Fourth Circuit: Walking Past Unoccupied Home With Bulging Pocket and Attempting to Evade Neighborhood Tipster Insufficient for Reasonable Suspicion to Seize and Search by Anthony Accurso (p 36)
• Harris County, Texas, Settles Civil Rights Case for $1.5 Million Brought by Innocent Man Shot in His Home Five Times by Trigger-Happy Deputy by Jo Ellen Nott (p 37)
• DEA’s Domestic Surveillance Mission Creep: Beyond Drugs, Beyond Protests by Jo Ellen Nott (p 37)
• New Mexico Supreme Court Announces Marquez’s Holding That ‘Crime of Shooting at or From Motor Vehicle Cannot Be Predicate Felony Supporting Charge of Felony Murder’ Is New Substantive Rule and Applies Retroactively by Douglas Ankney (p 38)
• The Potential Privacy Threat of Generative AI by Michael Thompson (p 39)
• Evidence Shows When Researchers Work Alongside Cops in the Field, De-escalation Training Is Implemented and Effective by Douglas Ankney (p 40)
• Pennsylvania Supreme Court: Testimonial References to Post-Arrest Silence Cannot Be Used Against Defendant at Trial, Pre-Arrest Harmless Error Analysis Does Not Apply by Anthony Accurso (p 40)
• Data Mining: Law Enforcement Pays Cash for Your Private Data and Saves on the Hassle of Complying With the Fourth Amendment by Douglas Ankney (p 41)
• Sixth Circuit Announces Due Process Right to ‘Prompt’ Post-Seizure Hearing While Government Deciding Whether to Initiate Forfeiture Proceedings and Holds Wayne County’s Vehicle Forfeiture Program Violates Due Process by Matthew Clarke (p 43)
• Idaho Supreme Court Announces Adoption of ‘Primary Purpose’ Standard for Reviewing Police Decision to Impound Vehicles and Conduct Inventory Search to Prevent Pretextual Searches in Violation of Fourth Amendment by Anthony Accurso (p 44)
• Steady Improvement in Techniques for the Analysis of Degraded DNA by Douglas Ankney (p 45)
• Indiana Supreme Court Announces Civil Forfeiture Triggers Right to Jury Trial by Matthew Clarke (p 46)
• Study Finds Public Defenders’ Heavy Workloads Prevent Effective Representation, Amendments to 50-Year-Old Guidelines Recommended by Douglas Ankney (p 47)
• Kentucky Supreme Court: Trial Court Abused Discretion by ‘Rehabilitating’ Juror Who Indicated Could Not Be Impartial and Failing to Strike Juror by David Reutter (p 48)
• Vendors Late to Recognize the Serious Threat of Cell-Site Simulators by Michael Thompson (p 49)
• Identification Via DNA, Fingerprints, and 3D Scanning of Footwear by Douglas Ankney (p 49)
• Car Culture Dramatically Increases Number of Cop Confrontations by Matthew Clarke (p 50)
• News in Brief (p 50)

January

• Federal Sentencing Guidelines Undergo Substantial Amendments by David Reutter (p 1)
• California Court of Appeal: Probation Condition Prohibiting Possession of Pornography Impermissibly Vague by Douglas Ankney (p 12)
• FBI Access to FISA Database Includes Some Accountability by Anthony Accurso (p 13)
• DOJ Spending Over $6 Billion in Firms to Seize Innocent Citizens’ Property Via Civil Asset Forfeiture by Douglas Ankney (p 14)
• Indiana Supreme Court Suppresses All Evidence Related to Polygraph Exam for Examiner’s Failure to Disclose Unilater-ally Changing Exam Results From ‘Admissible’ to ‘Inadmissible’ Due to Defendant’s Mental State by Anthony Accurso (p 15)
• Survey: Why Defendants Cooperate with the Government in a Process Described as ‘Unfair’ by Defense Attorneys by Douglas Ankney (p 16)
• FBI Buys Software to Enslave Your Phone by Michael Thompson (p 22)
• West Virginia University Forensic Scientists Provide a Benchmark for Analyzing Duct Tape Fracture Edges by Jo Ellen Nott (p 22)
• The White House Goes Rogue: Secret Surveillance Program Breaks all the Rules by Nisha Whitehead, John W. Whitehead (p 24)
• House Judiciary Committee Investigates Major Banks for Unauthorized Sharing of Private Financial Information With the FBI by Jo Ellen Nott (p 25)
• Second Circuit: Money Concealment Guilty Plea Vacated for Lack of Evidence to Support Factual Finding of Required Mens Rea by David Reutter (p 26)
• Oregon Supreme Court Announces Overruling of Precedent on ‘Attempted Transfer’ of Drugs by David Reutter (p 27)
• Maryland Supreme Court Announces Expectation of Privacy Covers Electronic Data, Not Physical Devices, Thus War-rantless Search of Government’s Copy of Defendant’s Hard Drive After Consent Revoked Violated Fourth Amendment by Douglas Ankney (p 28)
• Fifth Circuit Affirms Habeas Relief Granted to Capital Defendant Where Counsel Failed to Impeach State’s Pivotal Wit-ness with Available Forensic Evidence by Douglas Ankney (p 30)
• First Circuit Announces It Has Authority to Raise Claim of Error Sua Sponte for Violation of ‘Mandate Rule’ by Sentenc-ing Court on Remand by Richard Resch (p 32)
• Human DNA Retrieved From Dogs Might Provide Evidence by Douglas Ankney (p 33)
• Sixth Circuit: Trial Judge’s Personal and Condemnatory Remarks Directed Toward Defendant Requires Recusal by Douglas Ankney (p 34)
• Police Requests to Google Replacing Old Fashioned Detective Work by Anthony Accurso (p 35)
• California Court of Appeal: Defendants Who Plead Guilty to Stipulated Sentence Eligible for Resentencing Under Amended § 1170.91 by Douglas Ankney (p 36)
• One Solution to Jurors Giving Too Much Weight to Improper Forensic Testimony: 4-Minute Training Video Based on DOJ Guidelines by Matthew Clarke (p 36)
• California Bans Bogus ‘Excited Delirium’ Diagnosis as Cause of Death by Douglas Ankney (p 37)
• New Mexico Supreme Court Clarifies When Reviewing Double Jeopardy Claims, Court to Apply Blockburger’s Strict-Elements Test or Modified Strict-Elements Test—Not Both by Douglas Ankney (p 38)
• FBI Lost Count of Its Snitches at Capitol on January 6, 2021 by Douglas Ankney (p 39)
• U.S. Supreme Court Apparently Prioritizes Ideology Over Guilt or Innocence by Douglas Ankney (p 40)
• Jesse Johnson: 194th Person Exonerated While on Death Row by Jordan Arizmendi (p 41)
• Kansas Supreme Court Announces State Must Prove Defendant Specifically Intended to Enter Dwelling in Which There Was a Person to Sustain Conviction for Attempted Aggravated Burglary, Overruling State v. Watson by Douglas Ankney (p 42)
• Oregon Supreme Court Clarifies Test to Determine When Person Becomes Agent of the State and Rules Jailhouse Snitch Was Agent, Requiring Suppression of Defendant’s Statements by Anthony Accurso (p 44)
• NYPD’s Solution for Abusive Cops Who Cost Taxpayers Millions of Dollars in Civil Suits—Promote Them by Douglas Ankney (p 45)
• Eleventh Circuit Announces Supervised Release Term Not Tolled When Defendant Absconds, Deepening Circuit Split by Anthony Accurso (p 46)
• California Court of Appeal: Confrontation Clause Violated Where Defense Prohibited From Cross-Examining Prosecution Witness About Biased Motivation and Fabrication by Douglas Ankney (p 47)
• Fourth Circuit: Evidentiary Hearing Required Where Prisoner’s Allegation of Mental Illness, if True, Is Sufficient to Demonstrate ‘Extraordinary Circumstances’ Warranting Both Rule 60(b)(6) Relief and Tolling of Habeas SOL by Douglas Ankney (p 48)
• News in Brief (p 50)
• Study Reveals That Aging Federal Judges May Experience Cognitive Impairment Affecting Their Opinions by Douglas Ankney (p 50)